as: 690 P.2d 10)
Court of Alaska.
the Matter of J.R.S.
OF CHALKYITSIK, Appellant,
and J.J.G., Adoptive Parents, Appellees.
Sept. 14, 1984.
Compton, J., dissented with opinion.
governing consent to voluntary termination of parental rights and consent
to voluntary proceedings for the adoptive placement of Indian children
applied in case involving an Indian mother's execution of a relinquishment
of parental rights to her son and the child's adoption by foster parents.
Welfare Act of 1978, §§ 101-104, 103(c), 25 U.S.C.A. §§ 1911-1914,
governing consent to voluntary termination of parental rights and consent
to voluntary proceedings for the adoptive placement of Indian children
does not allow a natural parent to withdraw an executed voluntary relinquishment
of parental rights after a final order terminating those rights has been
entered, since if Congress had intended consents to termination to be
revocable at any time before entry of a final decree of adoption, the
words "as the case may be" would not appear in the statute.
Indian Child Welfare Act of
§§ 101-104, 103(c), 25 U.S.C.A. §§ 1911-1914,
fact that a party can attack a final order terminating parental rights
on ground that the same violated a rule of civil procedure regarding orders
does not change the final character of the order. Rules Civ.Proc.,
Rule 60(b); Indian Child Welfare Act of 1978, §§ 101-104,
103(c), 25 U.S.C.A. §§ 1911-1914, 1913(c).
trial court's order terminating parental rights was final, Indian mother's
attempt to revoke her voluntary relinquishment of parental rights was
without effect. Indian Child Welfare Act of 1978, §§ 101-104,
103(c), 25 U.S.C.A. §§ 1911-1914, 1913(c).
court's decision setting aside placement preference system under Indian
Child Welfare Act was fatally flawed, where trial court had denied Indian
tribe's motion to intervene in adoption proceeding involving one of its
child members. Indian Child Welfare Act of 1978, § 105,
25 U.S.C.A. § 1915.
a child is to be adopted, Indian tribal members who want to adopt him
are entitled to preference over other Indians, who in turn are preferred
to non-Indians; foster homes specified or licensed by the tribe
are preferred to other foster homes. Indian Child Welfare Act of
1978, § 105, 25 U.S.C.A. § 1915.
Child Welfare Act itself does not give a tribe the right to intervene
in an adoption proceeding. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901 et seq.
Indian tribes' interest is substantial and alternatives to requiring intervention
unacceptable, they must be allowed to participate in hearings at which
their values are significantly implicated, including adoption proceedings.
Indian Child Welfare Act of 1978, §§ 4(1), 101(c),
25 U.S.C.A. §§ 1903(1), 1911(c).
Child Welfare Act does not limit a state court's power to allow intervention
in child custody proceedings. Indian Child Welfare Act of 1978,
§ 101(c), 25 U.S.C.A. § 1911(c).
decide whether or not a litigant is entitled to intervene in an action
as of right, court must look to the interest he claims, the extent to
which disposition of the action may as a practical matter impair or impede
his ability to protect that interest, and the possibility that the interest
is adequately represented by existing parties. Rules Civ.Proc.,
Child Welfare Act envisions that Indian tribes are to play central role
in custody proceedings involving Indian children. Indian Child Welfare
Act of 1978, § 105(a-c, e), 25 U.S.C.A. § 1915(a-c,
adoption proceedings involving a child tribal member, Indian tribe had
an "interest" which rule regarding intervention was designed
to protect. Indian Child
Welfare Act of 1978, §§ 2, 3, 104, 105, 25 U.S.C.A. §§ 1901,
1902, 1914, 1915; Rules Civ.Proc., Rule 24(a).
by tribe into adoption proceeding involving Indian child was necessary
to preserve tribe's interest in its child member. Indian Child
Act of 1978, §§ 2, 3, 104, 105, 25 U.S.C.A. §§ 1901,
1902, 1914, 1915; Rules Civ.Proc., Rule 24(a).
Michael J. Walleri, Fairbanks, for appellant.
D. Rebecca Snow, Asst. Atty.
Gen., Fairbanks, Norman C. Gorsuch, Atty. Gen., Juneau, for appellee,
State of Alaska.
Daniel L. Callahan, Schendel
Law Office, Fairbanks, for appellees, M.S.F. and J.J.G.
Raymond Funk, Asst. Public Defender,
Fairbanks, Dana Fabe, Public Defender, Anchorage, Guardian Ad Litem.
Before BURKE, C.J., and RABINOWITZ,
MATTHEWS, COMPTON and MOORE, JJ.
Dissatisfied with the ways in which state courts treat Indian parents
and children, Congress enacted the Indian Child Welfare Act. This
case requires us to interpret several of that Act's provisions.
J.R.S., the child whose status and future are at issue in this appeal,
was born nine years ago in the Fort Wainwright army hospital in Fairbanks,
Alaska. His mother soon moved with him to Louisiana, but problems developed
and the State of Louisiana took custody of him in September 1976. Since
then he has been in and out of foster homes. His maternal
grandmother has cared for him in Chalkyitsik, Alaska, and *12
he has lived with his mother in Fairbanks. Alaska's Division of Family
and Youth Services has placed him with various Fairbanks foster parents.
In the summer of 1982, he was placed with relatives living
on the Kenai Peninsula. Most recently, J.R.S. has lived with
appellees M.S.F. and J.J.G., who adopted him in December 1982.
The legal proceedings which give
rise to this appeal began in April 1981, when the State filed a Petition
for Adjudication of a Child in Need of Aid. Pursuant to AS 47.10.010(a)(2)
and AS 47.10.080(c)(1), the superior court granted the petition and placed
J.R.S. in the custody of the Division of Family and Youth Services. In
October, the Division sent him to live with M.S.F. and J.J.G.
In November, the superior court reaffirmed and extended its
order. In March 1982 the State filed a Petition for Termination
of Parental Rights, relying on AS 47.10.080(c)(3). Its petition
pointed out that J.R.S.'s natural father had not demonstrated even minimal
parental interest in the child and that his natural mother, M.C.H., had
emotionally abused her son. The natural father, who was living
in Pennsylvania, did not contest the petition. M.C.H., J.R.S.'s natural
mother, eventually signed a Relinquishment of Parental Rights. She
asked the court to send her son to relatives living on the Kenai Peninsula,
and this was done in June 1982. For reasons not relevant here,
this placement was not successful, and the Division of Family and Youth
Services returned J.R.S. to M.S.F. and J.J.G. They petitioned
to adopt him, and the superior court granted their petition in December
For purposes of this appeal,
the final two months of this process are the most important. In
early October, as the Division prepared to return J.R.S. to Fairbanks,
the Village of Chalkyitsik formally intervened in the Child in Need of
Aid proceeding and asked for an order blocking the move. Although
the superior court refused to issue the temporary restraining order, no
party now contends that the Village of Chalkyitsik had no right to intervene.
Under the Indian Child Welfare Act, 25 U.S.C. § 1901
et seq., [hereinafter I.C.W.A.], Chalkyitsik is J.R.S.'s "tribe,"
and the Act gives such tribes the right to intervene in "any State
court proceeding for the foster care placement of, or termination
of parental rights to, an Indian child...." 25 U.S.C. § 1911(c).
[FN1] The Child in Need of Aid action had begun as a foster care
placement proceeding and had then become a proceeding for termination
of parental rights; the parties thus assumed, perhaps incorrectly,
that 25 U.S.C. § 1911(c) decided the question.
Because it is a recognized "Native village" under 43 U.S.C.
§ 1602(c) (§ 3(c) of the Alaska Native Claims Settlement
Act), Chalkyitsik is an "Indian tribe" for the purposes of the
Indian Child Welfare Act. 25 U.S.C. § 1903(8). It
is J.R.S.'s "tribe" because his natural mother is from Chalkyitsik
and he has become a member of the Village. See 25 U.S.C. § 1903(4)
See note 11 infra
and accompanying text.
The fact of the Village's intervention
in the C.I.N.A. action did not, in the superior court's view, entitle
it to participate in the hearing on M.S.F. and J.J.G.'s petition to adopt
J.R.S. The Village's motion to intervene in the adoption action--a
proceeding separate from the C.I.N.A. action and governed by a different
denied. On the morning of the adoption hearing, counsel for
Chalkyitsik filed a document, signed by M.C.H., purporting to
revoke her Relinquishment of Parental Rights. The superior
court refused to give effect to this revocation, proceeded with the adoption
hearing, and granted the adoptive parents' petition. Contending
that it should have been allowed to intervene and that the revocation
should have been given effect, Chalkyitsik brings this appeal.
See AS 25.23.010-.240 (adoption); AS 47.10.010-.290 (delinquent
minors and children in need of aid).
When M.C.H. relinquished her parental rights, a hearing at which those
rights might have been terminated involuntarily was scheduled to be held
in five days; however, *13
the record shows that she was not coerced into signing relinquishment
papers and the superior court found that the relinquishment was voluntary.
Twenty days after the relinquishment was entered, the superior
court entered an order terminating her parental rights. More
than five months later, long after the time during which state law allows
a natural parent to revoke a relinquishment had run,
[FN4] M.C.H. signed a one-sentence statement purporting to revoke the
relinquishment she had executed. To decide what effect, if
any, to give to this document, the superior court relied upon 25 U.S.C.
§ 1913(c), which provides:
See AS 25.23.180(b)(1) and (g).
In any voluntary proceeding for
termination of parental rights to, or adoptive placement of, an Indian
child, the consent of the parent may be withdrawn for any reason at any
time prior to the entry of a final decree of termination or adoption,
as the case may be, and the child shall be returned to the parent.
The superior court reasoned that consent to the termination of one's
parental rights could not be withdrawn after a final decree terminating
them had been entered, noted that its own order was such a decree, and
held that the purported revocation had no legal effect.
We will assume for purposes of
argument that the Village has standing to raise the issue of the validity
of M.C.H.'s revocation of her relinquishment. M.C.H. has not appealed
from any of the superior court's orders, and the State quite plausibly
contends that the right 25 U.S.C. § 1913(c) confers belongs
to M.C.H., not to her tribe. Although 25 U.S.C. § 1914
allows a tribe to petition any court of competent jurisdiction to invalidate
an action which violates certain I.C.W.A. provisions, including section
1913(c), Chalkyitsik does not claim that this appeal is a § 1914
petition. If the Village had filed a § 1914 petition
in superior court, however, the petition would presumably
have been denied and an appeal to us from that denial would have been
[FN5] Thus, we will treat this issue as if the Village had in fact
fulfilled the Act's procedural requirements. In light of the
manner in which we interpret § 1913(c), this does not affect
our resolution of this issue.
By its terms § 1914 allows a tribe to petition against "any
violation" of sections 1911, 1912 and 1913.
We first hold that § 1913(c)
applies to the case before us. The State argues that M.C.H.'s
relinquishment of parental rights was entered to avoid the trouble of
an adversary proceeding and that such a relinquishment is not really "voluntary";
section 1912 of the Act, which governs involuntary proceedings,
would thus be applicable, and § 1912 does not allow a natural
parent to revoke anything. In our view the state's argument
is without merit. The superior court believed the relinquishment
was governed by the provisions of § 1913, and the papers the
State prepared for M.C.H.'s signature refer to Alaska statutes which deal
with voluntary relinquishments of parental rights. Her counsel
and the superior court explained these papers to her, and the superior
court expressly found that "everything's being done voluntarily and
with an understanding of the situation." Moreover, 25
§ 1912(f) provides that
termination of parental rights may be ordered in [an involuntary] proceeding
in the absence of a determination, supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the child.
Because the superior court never made such a determination, any
order terminating parental rights under § 1912 would have been
we do not believe that § 1913(c) allows a parent to withdraw
a voluntary relinquishment of parental rights after a final order terminating
those rights has been entered. Section 1913(c) applies *14
to two kinds of proceedings: to voluntary proceedings for termination
of parental rights and to voluntary proceedings for the adoptive placement
of Indian children. The consent it refers to may be one of
two kinds: a consent to termination of parental rights or a consent
to adoptive placement. A consent to termination may be withdrawn
at any time before a final decree of termination is entered; a consent
to adoption at any time before a final decree of adoption. If
Congress had intended consents to termination to be revocable at any time
before entry of a final decree of adoption, the words "as the case
may be" would not appear in the statute. Therefore, if
the superior court's order was a final order, M.C.H.'s purported revocation
was without legal
The superior court's order was "final"
for purposes of the Act. This is not a case in which a parent attempts
to revoke a relinquishment before her child has been placed for adoption.
AS 25.23.180(g), which provides that a decree terminating parental
rights may be vacated if a child has not been placed for adoption and the
person having custody agrees to the decree's vacation, is not relevant here.
Nothing in the statute governing relinquishment suggests that
the decree the superior court entered was anything less than final. A
different statute, AS 47.10.080(f), provides that orders terminating parental
rights involuntarily are reviewable when good cause is shown, see Rita
T. v. State, 623 P.2d
344 (Alaska 1981), but this does not necessarily mean that they are not
final orders. In any event the order entered in this case followed
a voluntary relinquishment. In our view the superior court's
order was as final as any other final judgment. The mere fact
that a party can attack such final orders on Civil Rule 60(b) grounds does
not change the final character of the order in question. Because
the superior court's order was final, that court correctly refused to give
effect to M.C.H.'s attempt to revoke her voluntary relinquishment of parental
J.R.S.'s adoption hearing, all participants agreed that the placement
preferences the Indian Child Welfare Act establishes [FN6]
set aside to allow M.S.F. and J.J.G. to adopt J.R.S. The Village
of Chalkyitsik, the placement preference *15
system's most obvious defender, [FN7]
was not represented at the hearing. This was not by choice.
The superior court had denied the Village's motion to intervene
in the adoption proceeding. We hold that for this reason the
superior court's decision to set aside the placement preference system
was fatally flawed. The adoption it approved must be vacated
and the matter remanded for an adoption hearing at which the Village will
be allowed to intervene.
Relevant parts of 25 U.S.C. § 1915
are: § 1915.
Placement of Indian children
Adoptive placements; preferences
any adoptive placement of an Indian child under State law,
a preference shall be given, in the absence of good
cause to the contrary, to a placement with (1) a
member of the child's extended family; (2) other members of
the Indian child's tribe; or (3) other Indian families.
Foster care or preadoptive placements; criteria; preferences
child accepted for foster care or preadoptive placement shall be
placed in the least restrictive setting which most approximates a
family and in which his special needs, if any, may
be met. The child shall also be placed within reasonable
proximity to his or her home, taking into account any
special needs of the child. In any foster care or
preadoptive placement, a preference shall be given, in the absence
of good cause to the contrary, to a placement with--
a member of the Indian child's extended family;
a foster home licensed, approved, or specified by the Indian
an Indian foster home licensed or approved by an authorized
non-Indian licensing authority; or
an institution for children approved by an Indian tribe or
operated by an Indian organization which has a program suitable
to meet the Indian child's needs.
Tribal resolution for different order of preference; personal preference considered;
anonymity in application of preferences
the case of a placement under subsection (a) or (b)
of this section, if the Indian child's tribe shall establish
a different order of preference by resolution, the agency or
court effecting the placement shall follow such order so long
as the placement is the least restrictive setting appropriate to
the particular needs of the child, as provided in subsection
(b) of this section. Where appropriate, the preference of the
Indian child or parent shall be considered: Provided,
That where a consenting parent evidences a desire for anonymity,
the court or agency shall give weight to such desire
applying the preferences.
If a child is to be adopted, tribal members who
want to adopt him are entitled to preference over other
Indians, who in turn are preferred to non-Indians. Foster homes
specified or licensed by the tribe are preferred to other
foster homes. The tribe is authorized to vary § 1915's
placement preferences by resolution. In its own right and as
the representative of its members, it has a strong interest
in the important role § 1915
The Act itself does not give a
tribe the right to intervene in an adoption proceeding. Nor
was such a right explicitly recognized in E.A.
v. State, 623 P.2d
1210 (Alaska 1981). Further, there are technical defects in
the way the Village presented its most persuasive argument--that, under
a combination of state and federal law, it has such an important interest
in what happens to J.R. that it was entitled to intervene as of right
in the adoption proceeding. Nevertheless we conclude that
the Village's interest is substantial and the alternatives to requiring
intervention unacceptable. If Indian tribes are to protect
the values Congress recognized when it enacted the Indian Child Welfare
Act, tribes must be allowed to participate in hearings at which those
values are significantly implicated.
In regard to the subject of intervention, the I.C.W.A. (25
U.S.C. § 1911(c))
court proceedings; intervention
any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child, the
Indian custodian of the child and the Indian child's tribe
shall have a right to intervene at any point in
Foster care placement and termination proceedings are defined in 25
U.S.C. § 1903(1)
of the Act:
"child custody proceeding" shall mean and include--
"foster care placement" which shall mean any action removing an
Indian child from its parent or Indian custodian for temporary
placement in a foster home or institution or the home
of a guardian or conservator where the parent or Indian
custodian cannot have the child returned upon demand, but where
parental rights have not been terminated;
"termination of parental rights" which shall mean any action resulting
in the termination of the parent-child relationship;
"preadoptive placement" which shall mean the temporary placement of an
Indian child in a foster home or institution after the
termination of parental rights, but prior to or in lieu
of adoptive placement; and
"adoptive placement" which shall mean the permanent placement of an
child for adoption, including any action resulting in a final
decree of adoption.
term or terms shall not include a placement based upon
an act which, if committed by an adult, would be
deemed a crime or upon an award, in a divorce
proceeding, of custody to one of the parents.
The Act thus distinguishes between "adoptive placement" and "termination of
parental rights"; only in the latter case does § 1911(c)
support intervention. In short, we think Congress recognized that terminations
and adoptions might be handled in separate actions. In Alaska,
for example, the two proceedings are fundamentally different. Compare
AS 47.10.080 with AS 25.23.100-.120.
[FN8] If Congress believed *16
that a tribe which had intervened in a termination proceeding
would automatically be allowed to participate in an adoption proceeding,
the Act it passed does not reflect this belief.
Two witnesses mentioned the Alaska system in testimony before the
House subcommittee which held hearings on the Act. See Proposed
Indian Child Welfare Act: Hearings on S. 1214 before the
House of Representatives Subcommittee on Indian Affairs and Public Lands
of the Committee on Interior and Insular Affairs, 95th Cong.
2d Sess. at 87 (Sister Mary Clare) and 93 (Don
Yet neither the Act nor its legislative
history establishes the contrary position the adoptive parents present:
that Congress implicitly forbade state courts to allow tribes to
intervene in adoptive proceedings. We accept for purposes
of argument that Congress has this power, but can ascertain no evidence
that it has chosen to exercise it. The Act does not purport
to restrict state courts' authority to allow intervention. To
find such a restriction, we would have to rely on the "expressio
unius" ("expression of one thing is the exclusion of another")
maxim, and that maxim, as the Sutherland treatise warns, "requires
great caution in its application, and in all cases is applicable only
under certain conditions." 2A Sands, Sutherland
§ 47.25, at 132 (4th ed. 1973). Section 1911(c) grants
a right that might not otherwise exist. It restricts the right
it grants to two classes of cases. But not all of Chalkyitsik's
intervention arguments depend on this right; instead, the Village
claims that state law requires trial courts to allow intervention in cases
like the one before us. On this question we do not think § 1911(c)
offers any guidance. We therefore conclude that the Indian
Child Welfare Act does not limit a state court's power to allow intervention
in child custody proceedings. See
Matter of Appeal in Maricopa County Juvenile Action No. A-25525,
136 Ariz. 528, 667 P.2d 228, 233 (1983).
We have reviewed the Act's legislative history and find nothing
in it to cast doubt on this conclusion. Subsection 1911(c)
was a late addition to the bill which became the
Act. The House hearings which preceded its inclusion do not
mention any need to exclude tribes from adoption proceedings. The
relevant House committee report does not explain why § 1911(c)
distinguishes among types of child custody proceedings. See
note 8; H.R.Rep. No. 1386, 95th Cong., 2d Sess., reprinted
1978 U.S.Code Cong. & Ad.News 7530-68.
Our decision, then, depends on state law. Chalkyitsik contends that,
623 P.2d 1210 (Alaska 1981), we have already resolved this
issue in its favor. Although E.A.
does not resolve the issue, we think that E.A.
supports a decision to allow tribal intervention.
facts presented this court with a peculiar problem. Although the
natural mother's parental rights had been terminated before the I.C.W.A.
took effect, the children involved were physically placed for adoption
after the Act's effective date. By its terms the Act
did not affect
proceeding under State law for foster care placement, termination of
parental rights, preadoptive placement, or adoptive placement which was initiated
or completed prior to one hundred and eighty days after
November 8, 1978,
(25 U.S.C. § 1923)
but did apply to "any subsequent proceeding in the same
matter or subsequent proceedings affecting the custody or placement of
the same child." Id.
The child's grandparents, trying to defend their preference rights under
[FN10] asserted that physical placement for adoption was a 'subsequent
proceeding' in the process of finding an adoptive home for
their grandchild. We rejected this contention, holding that the whole
adoptive placement process was a single proceeding, and the proceeding
had begun before the Act's effective date. Thus the I.C.W.A.
did not apply.
See note 6 supra.
Chalkyitsik now argues that the E.A.
case had begun as a termination-of-parental-rights case; that E.A.
held that adoption proceedings were part of the termination action;
therefore that the Village, having successfully intervened in the termination
action against M.C.H., should properly have been part of the
adoption action. Alternatively, it notes that E.A.
held that a *17
later adoption hearing would be "a subsequent proceeding in the
same matter" as the earlier adoptive placements, and maintains that
a party who has intervened in one phase of a
"matter" cannot be excluded from subsequent phases.
These are complex questions, but the answers the Village offers
are unsound. First, the "process" E.A.
finds indivisible is the process of locating an adoptive home
for the children involved, not
the C.I.N.A. action taken as a whole. In E.A.
we specifically stated that this process "was initiated upon the
termination of E.A.'s parental rights ... and cannot be considered
a subsequent proceeding or a discrete phase of the same
matter." 623 P.2d at 1215. In that decision, the termination
action was separate from the placement proceedings.
[FN11] Second, E.A.
involved an interpretation of the I.C.W.A.; no litigant briefed the
question of whether or not C.I.N.A. actions and subsequent adoption
proceedings had merged. Finally, an assertion that a C.I.N.A. action
and an adoption proceeding involve the "same matter"-- the status
and future of a child--is not determinative of the question
of who should be allowed to intervene.
Therefore, under E.A.,
the parties probably should not have assumed that the I.C.W.A.
explicitly gave Chalkyitsik the right to intervene in the C.I.N.A.
action at a time when that action was no longer
a proceeding for "termination of parental rights"; instead, the C.I.N.A.
action had become a proceeding for "preadoptive placement," and § 1911(c)
does not grant a right of intervention in such proceedings.
the tribe has an important interest in these proceedings, it
would be entitled to intervene under state law. See
text at pp. 17-19.
does indeed support the Village, but its support applies to
a slightly different question. Although in that case the children's
grandparents were not allowed to appeal under the I.C.W.A., we
did reverse and remand on other grounds; and the grandparents
were held to have a right to be part of
subsequent proceedings upon remand:
order that the grandparents may effectively assert their statutory right
to preference at such proceedings, we further hold that they
have a due process right to notice and an opportunity
to be heard at any adoptive proceedings which may be
conducted in the future.
623 P.2d at 1215-16.
In other words, the children's grandparents were to be allowed
to intervene to protect rights the I.C.W.A. had given them.
[FN12] Because grandparents' rights differ from the tribe's rights--the I.C.W.A.
entitles the tribe to influence over adoptive placements, not to
adoptive rights themselves--E.A.
does not require courts to allow tribes to intervene in
adoption hearings. Yet it does strongly indicate that state-law intervention
protects rights granted by the Act. If the Village of
Chalkyitsik had an "interest" in what happened to J.R. which
paralleled the "interest" possessed by the E.A.
the superior court should have allowed the Village to intervene.
In Alaska, blood relatives of Native parents have two sets
of rights: those given by AS 47.10.230(e) ("A child may
not be placed in a foster home or in the
care of an agency or institution providing care for children
if a blood relative exists who requests custody of the
child" and no one shows that this custody would harm
the child; the section does not
apply to adoptive placements) and those given by the I.C.W.A.
("In any adoptive placement of an Indian child under State
law, a preference shall be given, in the absence of
good cause to the contrary, to a placement with (1)
a member of the child's extended family; (2) other members
of the Indian child's tribe; or (3) other Indian families,"
25 U.S.C. § 1915(a)).
For the grandparents the only rights at stake in the
adoptive hearing E.A.
contemplated would have been the I.C.W.A. rights.
justified the rights it gave to the grandparents in terms of "due
process," we think, so far as intervention is concerned, an analysis
focused on the requirements of our Civil Rule 24 is appropriate. A.R.C.P.
24 provides in pertinent part:
Upon timely application anyone shall be permitted
to intervene in an action when the applicant claims an
interest relating to the *18
property or transaction which is the subject of the action
and he is so situated that the disposition of the
action may as a practical matter impair or impede his
ability to protect that interest, unless the applicant's interest is
adequately represented by existing parties.
Upon timely application anyone may be permitted to intervene in
an action when an applicant's claim or defense and the
main action have a question of law or fact in
common.... In exercising its discretion the court shall consider whether
the intervention will unduly delay or prejudice the adjudication of
the rights of the original parties.
To decide whether or not a litigant is entitled to
intervene in an action as of right, we look to
the "interest" he claims, the extent to which "disposition of
the action may as a practical matter impair or impede
his ability to protect that interest," and the possibility that
the interest is "adequately represented by existing parties." Our study
convinces us that the superior court erred in denying the
Village's motion to intervene.
Act envisions that Indian tribes are to play a central role in custody
proceedings involving Indian children ...." Matter
of Appeal in Maricopa County, supra,
667 P.2d at 233. By resolution, a tribe may alter the placement
preference system the I.C.W.A. establishes. 25 U.S.C. § 1915(c).
If it licenses or approves a foster home, that foster home
to preference when a state agency tries to place a child associated with
the tribe. 25 U.S.C. § 1915(b). When an adoption
takes place, tribal members are also entitled to preference. § 1915(a).
Tribes are entitled to inspect records showing how state agencies
have placed Indian children. § 1915(e). Each of
these provisions reflects Congress's concern for "the essential tribal
relations of Indian people," "the stability and security of
Indian tribes," and "the unique values of Indian culture."
In the Act Congress specifically found that there is no resource
that is more vital to the continued existence and integrity of Indian
tribes than their children and that the United States has a direct interest,
as trustee, in protecting Indian children who are members of or are eligible
for membership in an Indian tribe.
25 U.S.C. § 1901,
1902. In the instant case we conclude that Chalkyitsik has
an "interest" which Rule 24(a) is designed to protect. [FN13]
Moreover, when it attempted to intervene the Village of Chalkyitsik
said it was trying to protect the rights of two
Chalkyitsik families, both of which had expressed interest in taking
J.R.S. into their homes. It thus had both an individual
and a fiduciary reason to intervene in the adoption proceeding.
We also hold that intervention
was necessary to preserve this interest. An Indian tribe may
petition a state court to set aside actions which violate Indian parents'
rights or improperly take jurisdiction from a tribal court, but the I.C.W.A.
does not provide for the filing of such a petition if a state ignores
§ 1915's adoptive preferences. See
25 U.S.C. 1914. Procedurally, the tribe must intervene if
it is to defend the Act's preference system. In this regard
we reject the adoptive parents' argument that Chalkyitsik should have
used its presence in the C.I.N.A. action to move for an order requiring
the state to withhold its consent from the adoption. This
is a needlessly roundabout scheme and the adoptive parents cite no cases
[FN14] It is obvious from the record that a "good cause"
determination was made at the adoption hearing. This suggests
that the appropriate place to oppose such a determination is the hearing
itself. By refusing to allow this kind of opposition, the
superior court made it inevitable that the Village's interests would be
Moreover, it has problems of its own: the adoptive parents,
for example, might justly want to intervene in a C.I.N.A.
action in which the State's consent was at stake.
Nor were the Village's interests represented by existing parties. State
represented the Division of Family and *19
Youth Services. Adoptive parents M.S.F. and J.J.G. had interests adverse
to the Village's. One possible representative of the Village's interests
would have been the guardian ad litem. But under Alaska
law the guardian's task is to promote the child's best
interests. As a practical matter these interests will often differ
from the tribe's; the record suggests that they were different
here. The guardian represented J.R.S., not the Village. The guardian
did not defend the Act's preferences. Only one potential litigant
was ready to defend the Act's placement scheme, and the
superior court excluded that litigant from the adoption hearing at
which these statutory preferences were overridden. We hold that it
was error on the superior court's part not to permit
Chalkyitsik to intervene and we thus remand for a hearing
at which the Village will be a party.
Arguments based on Civil Rule 24 were properly before the
superior court and they are properly before us. When Chalkyitsik
tried to intervene, it mistakenly cited Civil Rule 19 (mandatory
joinder), arguing that because it was a necessary party the
case could not go forward without it. Civil Rule 19
parallels Civil Rule 24: the same "interest" and "impair and
impede" tests run through both rules. See 3A Moore's Federal
Practice § 19.01-1[5.-6]
at 19-26--19-31 (1982) (examining "complex"
relationship between Rules 19 and 24). Thus a Rule-24-like motion
was before the superior court. Chalkyitsik's Notice of Appeal did
indeed refer vaguely to the Civil Rules, although its references
to "permissive intervention" seem directed toward Rule 24(b). On the
other hand, the Village's position throughout its appellate briefing has
been consistent. A Civil Rule 24(a) discussion occupies eight pages
of its first brief and four pages of its second.
Counsel for the adoptive parents cannot justly claim to be
surprised. Because the arguments Chalkyitsik raises here were presented to
the trial court and mentioned in the Notice of Appeal,
we have considered them. There is therefore no reason to
reach Chalkyitsik's elaborate arguments concerning its "sovereign" right to intervene
and its "parens patriae" relationship to J.R.S.
The judgment of the superior court is AFFIRMED in part,
REVERSED in part, and REMANDED.
COMPTON, Justice, dissenting in part.
This court has concluded that an Indian tribe has a
to intervene in adoption proceedings, notwithstanding the fact that it
is not asserting or protecting
any particular right or interest created under ICWA. The only
interest that can be gleaned from the record before us
is what I would term a "general oversight" interest. As
such, it is not given specific protection by ICWA, nor
may it be reasonably inferred. Since there is simply no
support for the court's conclusion, I dissent.
The court notes that ICWA does not itself give an
Indian tribe the right to intervene in adoption proceedings. It
also notes that E.A.
623 P.2d 1210 (Alaska 1981), confers no such right. It
cannot cite a case from any jurisdiction which has held
that such a right exists. The court then seeks refuge
in Civil Rule 24(a) by declaring that the Indian tribe's
interest--protecting values Congress recognized in enacting ICWA--is so substantial as
to constitute an "interest" entitling the Indian tribe to intervention
as a matter of right. This is the only way
the court can justify the result, which is otherwise unsupportable.
To emphasize the Indian tribe's pervasive interest, the court cites
of Appeal in Maricopa County Juvenile Action No. A-25525,
136 Ariz. 528, 667 P.2d 228 (1983), conveniently ignoring the
fact that the Indian tribe's intervention in that adoption proceeding
was permissive, and therefore discretionary, not as of right. Id.
at 233. In noting specific rights and obligations ICWA gives
to and places upon Indian tribes, the court does nothing
than state the obvious. No one can quarrel with what
ICWA grants an Indian tribe a statutory right of intervention
in certain instances not here applicable. See
25 U.S.C. § 1911(c).
Further, it establishes certain adoption preferences, 25 U.S.C. § 1915(a),
and grants an Indian tribe the right to alter by
resolution those preferences. 25 U.S.C. § 1915(c).
If a state court attempted to disregard a preference, then
it is obvious that the person asserting it would be
to use the procedural device established by Civil Rule 24(a)
to assure that the person's statutory right was vindicated. Likewise,
if a state court refused to honor a tribal resolution
altering the statutory preference, the Indian tribe would be entitled
to enforce compliance, and Civil Rule 24(a) would be the
appropriate procedural device to gain access to the state court.
In this case, however, no
statutory right is being denied any person or the Village
of Chalkyitsik. No member of J.R.S.'s extended family is seeking
to adopt him. No member of J.R.S.'s Indian tribe is
seeking to adopt him.
[FN1] The Village of Chalkyitsik has not by resolution altered
the statutory preference, and hence the state court is not
refusing to honor any statutory right given an Indian tribe.
The court attempts to bolster its position by claiming that
of Chalkyitsik was trying to protect the interests of two
Chalkyitsik families who expressed an interest in taking J.R.S. into
their homes. First, there is no evidence of this in
the record. Counsel stated that at one time the Simon
Francis family had indicated an interest in taking J.R.S. into
their home; however, they left the village for the winter.
On the day before the adoption hearing, counsel stated that
the Peter Druck family was interested in taking J.R.S. into
their home. Statements of counsel in memoranda or argument are
not evidence. See
Weaver Brothers, Inc. v. Chappel,
684 P.2d 123, at 126 (Alaska June 29, 1984). Second,
counsel did not state that either family ever expressed any
interest in adopting
J.R.S. Since this proceeding is an adoption, any interest in
simply taking J.R.S. into one's home is irrelevant. Were the
Village of Chalkyitsik in fact acting in a representative capacity,
I could accept its assertions on behalf of protected persons.
Civil Rule 24(a) requires both an "interest" and action that
would impair or impede that "interest." No statutorily created interest
is here being impaired or impeded, nor is any interest
asserted by the Village of Chalkyitsik one that has been
statutorily created, or recognized by prior decisions of our court.
In fact, as stated previously, the only interest herein asserted
is a "general
oversight" interest. The tribe may have an interest in seeing
that a child is not adopted by a non-tribal family
but this interest has not been recognized by ICWA. The
court is, in essence, granting tribes a right to intervene
Indian child adoption proceeding, regardless of whether or not the
placement preference scheme is involved. Though the court makes much
of defending the placement preference scheme, it cannot point to
any valid evidence [FN2]
that the placement preference scheme was at issue in this
Because the federal government has determined that Indian tribes should
play a central role in custody proceedings involving Indian children--a
proposition with which I do not quarrel--this court has judicially
created substantive state
law which it then proceeds to recognize as an "interest"
entitling the Indian tribe to intervene in adoption proceedings as
a matter of right. Since no federally created statutory interest
is being impaired or impeded in these proceedings, I can
only wonder at the breadth of the oversight powers being
here granted. Had Congress intended such a result, saying so
would have been supremely simple.