IN THE SUPREME COURT FOR THE STATE OF ALASKA

Rozella Simmonds and Jeff Simmonds,

v.

Edward Parks,

and

Petitioners.

Respondent,

State of Alaska,

lntervenor-Respondent

Supreme Court No. S-14103

Superior Court No. 4FA-09-02508 Cl

PETITIONERS’ REPLY BRIEF

Petition for Review from the Superior Court Fourth Judicial District, Honorable Judge Paul R. Lyle, Superior Court Judge

Erin C. Dougherty (#0811067)Natalie A. Landreth (#0405020)Heather Kendall-Miller (#9211084) Matthew N. Newman (#1305023) NATIVE AMERICAN RIGHTS FUND 745 W. 4th Avenue, Suite 502 Anchorage, Alaska 99501 Phone: (907) 276-0680'Fax: (907) 276-2466 dougherty@narf.org Attorneys fo r Petitioners

Filed in the Supreme Court of the State o f Alaska this l& t*' tDay of2 0 1 3

Marilyn May, Clerk of the Court

TABLE OF CONTENTS

TABLE OF C O N T E N T S ............... i

TABLE OF A U TH O R IT IES .............................................. iv

INTRODUCTIO N......................... ..........,.................................................... 1

A R G U M E N T ................................................................................................................................... 2

I. D id the Minto Tribal Co urt h ave subject matterJURISDICTION TO TERMINATE PARKS’S PARENTAL RIGHTS?.................................. 2

A. Tribes have inherent authority to adjudicate child custody matters concerning their member children and Intervenor can cite to no case or statute that supports its conclusion otherwise.............................................................................................. 2

B. Intervenor’s agruments ignore ICW A’s stated intent,thus creating two classes o f N ative children.................................................. 4

C. Intervenor’s interpretation o f Montana misunderstands the holding o f the case and has been rejected by thefederal courts. ....................................................................................................... 6

D. That tribal courts have subject matter jurisdiction to adjudicate member childrens’ cases is well-establishedand uncontroversial ;.................................................................................. 7

II. D id the M into Tribal Court have perso na l jurisdiction over Parks a n d S.P.? D id Par k s co nsent to the jurisdiction of the Minto Tribal Court? D id Parks a s a n o n -N ative parent h ave the right to transfer his case from the Minto Tribal Co urt to state court? .................................. 8

A. ICW A’s clear language and purpose supports tribal court jurisdiction over a member child and their nonconsenting parent..................................................................................................... 9

B. Nothing in federal law or state law supports Intervenorsassertion that a minimum contacts analysis is necessary........................ 10

C. There is no right to transfer from tribal court to statecourt............................................................................................................................ 12

III. D id th e M into Tribal Co u r t pro vid e Parks with a m ea n in g fu l o pportunity to presen t his case w hen it r e fu se d to let his atto rney spea k for him in the Tr ibalCo u r t? ................................... 13

A. There is no precedent supporting state court review ofthe "meaningfulness” o f a tribal court’s process...............................13

B. Intervenor ignores that Respondent Parks actively participated inTribal Court proceedings...................................................................... 14

1. Congress has routinely declined to mandate attorneys in tribal courts except in very specific situations and no court has ever adopted Intervenor’s and Respondents5arguments................................... 15

a. In the Indian Civil Rights Act and the Indian Child Welfare Act, Congress declined to force tribal courts to follow western notions of dueprocess............................................................................ 16

b. State and federal law recognize the unique features oftribal courts and that tribal courts are not required to use due process procedures identical to those of Alaska courts.................. ............ .............................................18

2. It is customary and entirely appropriate for tribal courts toemploy unwritten cultural traditions.................... 21

3. Respondent Parks was given a case plan at the beginning ofthe case that clearly described the standards the court used to evaluate his ability to parent S.P. ............................ 22

IV. D id the M into Tribal Co urt pro vid e Parks with ad equ ate notice th at his attorney w o uld only be able to m ake ar g u m en ts by submitting them rN writing beforehand? ..................... 25

A. The provided notice complied with both Minto Tribal Court rules and due process requirements..............................................................26

B. Minto Tribal Court rules do not permit attorneys oral argument and nothing in federal law suggests that it must................................ 28

V. If Pa r k s w a s denied a m eaning fu l opportunity to beHEARD IN THE TRIBAL COURT, WAS THE DENIAL PREJUDICIAL IFth e M into Tribal Co urt h a d jurisdiction? ...................................................29

ii

VI. Wh a t effect, if a n y , do es Pa r k s’s failure to e x h a u st hisREMEDIES BY APPEALING IN THE TRIBAL COURT HAVE ON HISDUE PROCESS CLAIM?.....................................................................................................32

VII. Wa s THE ISSUE OF JURISDICTION FULLY AND FAIRLY LITIGATED IN THEM into Tr ibal Co urt? ...............................;...............................................................37

VIII. If the Tribal Co urt o rder is n o t entitled to full faithAND CREDIT, WHAT IS THE APPROPRIATE REMEDY? IF THE TRIBALCo urt order is v a c a t e d , sh o uld the in sta n t ac tio n beCONVERTED TO A CINA PROCEEDING, REMANDED TO THE MINTOTr ibal Co urt for furth er proceedings, or r em a n d ed toTHE SUPERIOR COURT?.................................................................................................. 3 7

A. Regardless of any due process violation, the Minto Tribal Court has exclusive jurisdiction as S.P. is a ward of the Minto Tribal Court...38

B. Under established law, a due process violation does not affect the exclusive jurisdiction of the Minto Tribal Court............................... 42

CONCLUSION................................................................................................ 44

TABLE OF AUTHORITIES

CASES

Calista Corporation v. Mann, 564 P.2d 53 (Alaska 1977).................................................22

Carle v. Carle, 503 P.2d 1050 (Alaska 1972).......................................................................... 1

Childs v. Childs, — P.3d — (Alaska 2013)...........................................................................27

Colville Confederated Tribes v. St. Peter, 20 Indian L. Rep. 6108 (C olv.C t App. 1993)............................................................................................................29

D.M. v. State, 995 P.2d 205 (Alaska 2000)............................................................................29

DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510 (8th Cir. 1989)...;..................... 34, 35

E.H. v. State, 23 P.3d 1186 (Alaska 2001)............................................................................. 11

Evans v. Native Village o f Selawik, 65 P.3d 58 (Alaska 2003)............................................43

Flores v. Flores, 598 P.2d 893 (Alaska 1979) ...................................... 20

In re C.R.H., 29 P.3d 849 (Alaska 2001)................................................................ 5, 7, 39,40

In re D.L.L., 291 N.W.2d 278 (S.D. 1980)................. ......................................................... 41

In re F.P., 843 P.2d 1214 (Alaska 1992)...............................................................................40

In re J.M., 718 P.2d 150 (Alaska 1986).....................................................................22, 39,40

Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987)............................................... 8, 28, 35

John v. Baker (John v. Baker I) , 982 P.2d 738 (Alaska 1999)..................................... passim

John v. Baker {John v. Baker It), 30 P.3d 68 (Alaska 2001).........................................passim

Kaltag Tribal Council v. Jackson, 344 Fed.Appx. 324 (9th Cir. 2009)...........................1, 9

Lassiter v. Department o f Social Services o f Durham County,North Carolina, 452 U.S. 18 (1981)............................................................................20, 21

Mathews v. Eldridge, 424 U.S. 319 (1976)........................................................................... 2 9

McCajfery v. Green} 931 P.2d 407 (Alaska 1997)............................................................... 11

McCrary v. Ivanof Bay Village, 265 P.3d 337 (Alaska 2011)................ ........................... 31

Miss. Band o f Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)................... ........ ...........5

Montana v. United States, 450 U.S. 544 (1981)....................... ............................. .....passim

M.R.D.B., 787 P.2d 1219 (M ont 1990)........... .41

Nash v. Matanuska-Susitna Borough, 239 P.3d 692 (Alaska 2010)....... 27

Native Village ofNenana v. State, 722 P.2d 219 (1986)................ ......................... . 39,40

Native Village ofTununak v. State, 303 P.3d 431 (Alaska 2013)........................................ 10

Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hons. Auth 207 F.3d 21 (1st Cir. 2000)......................................................'......... 36

Owens v. Willock, 690 So.2d 948 (La. Ct. App. 1997).............................................. 41

S.B. v. State, 61 P.3d 6 (Alaska 2002).....................................................................................10

Starr v. George, 175 P.3d 50 (Alaska 2008)........................................................... 14, 37, 43

State v. Native Village ofTanana, 249 P.3d 734 (Alaska 2011)................................2 ,4 , 39

United States v. Cavanaugh, 643 F.3d 592 (8th Cir. 2011)..................................................17

United States v. First, — F.3d — (9th Cir. 2013)............... .......................... ..................... 17

United States v. Shavanaux, 647 F.3d 993 (10th Cir. 2011)............................................... 17

CONSTITUTIONAL PROVISIONS

U.S. Const, art. VI.............................. 10

STATUTES & ADMINISTRATIVE CODES

Indian C ivil Rights A ct o f 1968, 25 U .S .C . §§ 1301 etseq .................................................. 16, 29

25 U .S .C . § 1302 .................................................................................................................................... 17

Indian Child W elfare A ct o f 1978, 2 5 U .S.C . §§ 1901 et seq .................................................. 1

25 U .S.C . § 1903 .......................................................................................................................................9

25 U .S .C . § 1911(a).............................. passim

25 U .S .C . § 1911(b).............................................. passim

25 U .S .C . § 1911(d )......................... 9 ,4 1

25 U .S .C . § 1 9 1 2 ....................................................................................................................... 17,18 , 20

25 U .S .C . § 1 9 1 8 .............................................................................................................................. 3 1 , 4 0

Indian Tribal Justice Act o f 1993, 2 5 U .S.C . §§ 3601 etseq ........................................................ 8

A R T IC L E S A N D O T H E R P U B L IC A T IO N S

Co h e n ’s Ha n d b o o k of Fe d e r a l I n d ia n Law (N ell Jessup N ew ton ed.,2012 e d .) ............................................................................................................................................20 ,41

Co n fer en c e of W estern A t t o r n e y s Gen er a l , A m erican In d ia n La w D esk bo o k (4th ed. 2 0 0 8 ) ................... 41

N a t iv e A m eric an R ights Fu n d , a Pra ctic al Gu id e to the In d ia n Child Welfare A c t § 7 .6 (ed. rev. Sept. 2 0 1 1 ) ........................................... 12

Deborah F. Buckman, Annotation, Construction and Application o f Federal Tribal Exhaustion Doctrine, 186 A .L .R . FED. 71 (2 0 1 2 )...................................................................... 34

Donald L. Burnett, Jr., An Historical Analysis o f the 1968 'Indian Civil Rights’ Act, 9 HARV. J. ON L eg is . 557 ( 1 9 7 1 - 1 9 7 2 ) .............................................................................................. 17

Sam Friedman, Fairbanks man fo u n d guilty offelony charges fo r severe beating, could face 99years, FAIRBANKS DAILY NEWS-MlNER, Aug. 13, 2 0 1 3 ......................................... 32

L E G IS L A T IV E H ISTO R Y

v i

Oversight on the Implementation o f the Indian Child Welfare Act o f1978, Hearing before the Select Comm, on Indian Affairs, 98th Cong. (1984)..................................................... 18

Hearings on S. 1214 Before the Subcomm. On Indian Affairs and Public Lands o f the Comm. on Interior and Insular Affairs, 95th Cong. (1978)......................................... 18, 26

Hearings on S. 211 Before the Subcomm. on Constitutional Rights o f the S. Committee on the Judiciary, 91 st Cong. (1969)........................................................................................... 16

Rights o f Members o f Indian Tribes: Hearing on HR. 15419 Before the Subcomm. on Indian Affairs o f the H Comm, on Interior and Insular Affairs, 90th Cong. (1968)........ 16

C o n s t it u t io n a l R ig h t s o f t h e A m e r ic a n In d i a n , S u m m a r y Re p o r t o f H e a r in g s a n d In v e s t ig a t io n s b y t h e S u b c o m m . o n C o n s t it u t io n a l R ig h t s o f t h e S. C o m m , o n t h e Ju d ic i a r y , 89th C o n g . (1966).......................................................................... 16,1.7

BRIEFS, MEMORANDA & ORAL ARGUMENT

Brief for the United States as Amicus Curiae, Hogan v. Kaltag Tribal Council,131 S. Ct. 66 (2010) (No. 09-960)................ .. ....................... .............................................43

Transcript of Oral Argument, S.P. v. Native Village o f Minto,Case No. 10-35000 (9th Cir. argued May 4, 2011)..............................................................31

Complaint, S.P. v. Native Village o f Minto, Case No. 3:09-CV-00092 HRH(May 12, 2009)......................................................................................................................... 31

Memo, from Assistant Att’y Gen. Donna Goldsmith for Jay Lively,Dep’t o f Health and Soc. Servs. Comm’r (Mar. 29, 2002) (No. 441-00-0005)....... 8, 41-42

Brief o f Appellee, John v. Baker (John v. Baker II), 30 P.3d 68 (Alaska 2001)(No. S-09891)........................................................................................ 1, 19

Appellee State of Alaska’s Brief, In re C.R.H., 29 P.3d 849 (Alaska 2001)(No. S-9677)........................................................................................ 7,11

Corrected Brief for the United States as Amicus Curiae in Support o f Appellant,In re C R H , 29 P.3d 849 (Alaska 2001) (No. S-9677)................................ 41

Amicus Brief o f the State of Alaska, John v. Baker (John v. Baker I),982 P.2d 738 (Alaska 1999) (No. S-08099).............................................................. 8, 41,44

v ii

Brief for the United States as Amicus Curiae, John v. Baker (John v. Baker I),982 P.2d 738 (Alaska 1999) (No. S-08099).......................................................................... 41

Brief o f Appellee [State of Alaska], In re F.P ., 843 P.2d 1214 (Alaska 1992)................. 40

v iii

INTRODUCTION

There are two over-arching issues before this Court: (1) the subject matter and

personal jurisdiction of tribal courts in Indian Child Welfare Act (ICWA)* cases

involving member children, and (2) the due process necessary to accord full faith and

credit to tribal court orders. Though Intervenor and Respondents claim that the Minto

Tribal Court’s actions are evidence of an unprecedented extension of tribal court

jurisdiction, what is notable about this case is the lack o f new arguments or controversies.

In addition to contradicting arguments Intervenor made to this Court prior to its 2004

policy shift, Intervenor’s subject matter and personal jurisdiction arguments are repeated

2from its unsuccessful briefing in Kaltag Tribal Council v. J a c k s o n Pet. Br. at 18-19 &

3n.43, and find their foundation in the dissent from John v. Baker /, written nearly fifteen

years ago.

Similarly, the majority of Intervenor and Respondents’ due process arguments are

4nearly identical to those alleged and found unpersuasive in John v. Baker II. Forty years

ago this Court warned that “[i]t is not the function of our courts to homogenize Alaskan

society,”5 yet Intervenor and Respondents now attempt to graph Western notions of due

process on to tribal courts—a proposition that has no support in state or federal law. In

1 25 U.S.C. §§ 1901 etseq.2 344 Fed. App’x 324 (9th Cir. 2009), cert, denied 131 S. Ct. 66 (2010).3 John v. Baker {John v. Baker I), 982 P.2d 738, 765 (Alaska 1999)).

Brief of Appellee at *21-42, John v. Baker (John v. Baker II), 30 P.3d 68 (Alaska2001) (No. S-09891). 2001 WL 36082045.5 Carle v. Carle, 503 P.2d 1050, 1055 (Alaska 1972).

1

addition, Intervenor and Respondents support their assertions of due process violations by

misstating the record in a manner that does a disservice to the Tribal Court record when

6taken as a whole. These misstatements mean to distract the Court from the fact that (1)

Respondent Parks participated in nearly every Tribal Court hearing, brought witnesses

and presented evidence, and (2) the Tribal Court provided Respondent Parks with a clear,

three-part case plan, no part o f which he accomplished .in nearly a year of Tribal Court

hearings.

ARGUMENT

I. D id t h e M in t o T r ib a l C o u r t h a v e s u b je c t m a t t e r ju r is d ic t io n t ot e r m in a t e P a r k s ’s p a r e n t a l r ig h t s ?

A. Tribes have inherent authority to adjudicate child custody matters concerning their member children and Intervenor can cite to no case or statute that supports its conclusion otherwise.

The arguments offered by Intervenor and Respondents7 are vastly different than

those advanced by Petitioners because of one fundamental difference—they begin from

very different foundations.

For example, Respondent Stearman argues that “there is no evidence in the record that [she] was ever notified of any hearings.” Resp. Stearman Br. at 11. The record reflects the opposite. Exc. 66, 84, 102, 119, 120, 132, 145, 156, 167, 183-84. Respondent Parks claims that the Tribal Court made “no mention or any record” that he could not care for S.P. Resp. Parks Br. at 3. But one of the first findings by the Tribal Court was that Respondent Parks had a residence “that was deemed unsuitable for an infant.” Exc. 67, 100. These are two of many examples of such misstatements.

Respondent Parks’s argument that the Tribal Court lacked jurisdiction because it has failed to reassume jurisdiction under § 1918, was unequivocally rejected in State v. Native Village ofTanana , 249 P.3d 734, 751 (Alaska 2011). Resp. Parks Br. at 14.

2

&

According to Intervenor and Respondent Stearman by incorporation: (1) Tribes

can establish jurisdiction only through an express congressional delegation by treaty or

statute; (2) although Congress found “that tribal children are important to the tribes,”

ICWA provides no express grant o f jurisdiction over child custody proceedings; (3) this

Court’s decision in John v. Baker I is not controlling authority because it only addressed

child custody disputes between village members; (4) tribes only have inherent authority

over domestic relations among members, but self-government and internal relations are

not at issue here; (5) tribal jurisdiction centers on reservation land and tribal members

within that land; leaving tribes with no off-reservation jurisdiction over non-members

unless one of the two exceptions articulated in Montana v. United States applies. Int. Br.

at 11-19, 69-70; Resp. Parks Br. at 16-17; Resp. Stearman Br. at 3-5.

This patchwork of arguments obscures the fact that Intervenor cites to no legal

authority supporting its conclusion that tribes lack jurisdiction over a member child

unless both parents are members of that tribe. Furthermore, that Intervenor needs

multiple steps of analysis to exempt tribal children with a non-member parent from the

protections of basic tenets of federal Indian law and ICWA—the keystone federal statute

that acknowledges these tenets—demonstrates the error of Intervenor s approach.

The reason that Intervenor's circuitous reasoning takes multiple steps to arrive at

its conclusion is because, like the superior court, Intervenor skips the well-established

starting point in any evaluation of tribal court jurisdiction: Indian tribes retain those

3

fundamental attributes o f sovereignty which have not been divested by Congress.

Because the “adjudication o f child custody disputes over member children” is one of the

most fundamental attributes o f tribal sovereignty. ;itribal courts require no express

9congressional delegation o f the right to determine custody o f tribal children.”

ICWA itself does not provide any express grants of jurisdiction to tribes. This is

because, as Congress recognized, tribes already possess the inherent authority to

adjudicate custody matters regarding their member children. Intervenor’s approach to

answering the Court’s question delves into discussions o f federal statues and case law

without actually evaluating whether a member child’s case is within the tribe’s inherent

authority, which Congress and this Court have repeatedly recognized that it is. Ignoring

Congress's intent and this Court's precedent, Intervenor mirrors the superior court’s

flawed analysis by piecing together language from Montana v. United States and its

progeny discussing issues o f taxation, business ventures, torts, and search warrants to

arrive at the dubious conclusion that both parents must be members o f the same tribe

before a tribal court has jurisdiction over a member child's case.

B. Intervenor’s arguments ignore ICWA’s stated intent, thus creating two classes o f Native children.

The triggering mechanism for tribal court jurisdiction over children’s cases has

always been the membership or eligibility for membership of the child in that tribe. Not

only is there no basis for Intervenor’s contrary arguments in the text of ICWA, those

See Tanana, 249 P.3d at 743 (quoting John v. Baker /, 982 P.2d at 751).John v. Baker I, 982 P.2d at 752.

4

arguments embody a policy judgment contemplated by Congress and ultimately

10rejected. ICWA was intended to focus on the deprivation of a child from her tribe—

other distinctions, such as whether or not the child has one non-member parent, are

simply not supported by ICWA’s language, history, or purpose." Furthermore, in its

attempts to minimize the importance of a tribe’s ability to initiate child protection cases,

Int. Br, at 11-12, 19-21, Intervenor ignores this Court’s precedent recognizing that ICWA

supports tribal control over custody decisions involving all Alaska Native children: the

“adjudication of child custody disputes over member children is necessary to ‘protect

12tribal self-government or to control internal relations.55*'

This case is precisely the type of scenario Congress envisioned when it adopted

ICWA. S.P.’s early life was characterized by her parents’ instability, drug and alcohol

use, and violent behavior. Exc. 65, 69, 85. Though OCS had an open file on S.P., the

state did not take custody o f her. Exc. 65. ICWA was intended to bring all Native

American children who were eligible for tribal membership under the statute’s protection.

Nothing in the statutory text or legislative record of ICWA supports the notion that these

A review of ICWA’s legislative history reveals extensive debates over the law’s various jurisdictional provisions and multiple witnesses at congressional hearings raised concerns about Congress’s intent to acknowledge tribal court jurisdiction over nonmember parents. See Pet. Br. at 12-13 n.26.

See Miss. Band o f Choctaw Indians v. Holyfield, 490 U.S. 30, 32-37 (1989).John v. Baker 1, 982 P.2d at 752 (quoting Montana v. U.S., 450 U.S. 544, 564 -

(1981)) (emphasis added) (involving parents from different tribes); In re C.R.H., 29 P.3d 849, 854 (Alaska 2001) (involving parents from different tribes).

5

protections vary depending upon whether a case involves a member child with a non

member parent, and this Court should reject arguments suggesting otherwise.

C. Intervenor’s interpretation of Montana misunderstands the holding of the case and has been rejected by the federal courts.

As this Court has recognized, Montana stands for an entirely different proposition

than what Intervenor suggests: as a general rule, even “without express Congressional

delegation,” tribes retain the power to do "what is necessary to protect tribal self-

government or control internal relations.”'3 And as recognized in John v. Baker /, cases

involving tribal children unquestionably fall under “internal relations.”

Invervenor has relied on its interpretation o f Montana to argue against tribal

jurisdiction over children’s cases since its 2004 policy change described in some detail in

Tanana. Pet. Br. at 18-19 & n.43. But, like the superior court, Intervenor cites no

precedent supporting its conclusion that under Montana, tribal courts lack subject matter

jurisdiction over member children who happen to have a non-member parent. Int. Br. at

14-19. The reason is because, as this Court said in John v. Baker /, it is the “character o f

the power that the tribe seeks to exercise” that is relevant, not the land it occurred on.'5

When that power is exercised over tribal children, Montana's non-member analysis

simply does not apply.

Montana v. U.S., 450 U.S. at 564.14

982 P.2d at 752 (Holding that “adjudication of child custody disputes over member children is necessary 'to protect tribal self-government or to control internal relations,’ its tribal courts require no express congressional delegation o f the right to determine custody o f tribal children.”).

6

D. That tribal courts have subject matter jurisdiction to adjudicate member childrens9 cases is well-established and uncontroversial.

That a tribal court’s subject matter jurisdiction over a child's custody case is

rooted in the child’s membership is not, as Intervenor suggests, a novel or controversial

proposition. Int. Br. at 21 n.70. In fact, prior to its 2004 policy change, Intervenor

recognized that tribes have jurisdiction over custody cases involving all member children

because the nexus o f tribal court jurisdiction is the membership o f the child.

For example, in In re C.R.H. the mother was a member of the Native Village of

Nikolai, while the father was a member o f the Native Village of Chickaloon. In

describing the Native Village of Nikolai’s jurisdiction over the member child, Intervenor

relied on Montana for the proposition opposite of what it now argues: “[w]hile courts

have used varying terminology to characterize and define the scope of tribal authority

over child custody matters, the universal thread throughout the cases is that tribes retain

inherent subject matter jurisdiction to make decisions regarding the overall welfare of

member children.”16 Similarly, in John v. Baker /, the mother was a member of the

Mentasta Traditional Council while the father was a member o f Northway Village. In

describing the Northway Tribal Court’s jurisdiction over the member children, Intervenor

(then Amicus) acknowledged "[t]his case would fit within Northway’s subject matter

Appellee State of Alaska’s Brief at *34, C.R.H.. 29 P.3d 849, (No. S-9677) 2000 WL 35590784 (citing Montana, 450 U.S. at 564) (emphasis added).

7

jurisdiction, unless the tribe has a constitutional or judicial code that defines its judicial

powers to exclude this type o f case.” 17

Although Intervenors policies have changed in the last decade, the law has not.

In the years since Intervenor argued in favor o f tribal court jurisdiction over member

children’s cases there has been no change to (1) tribal inherent authority over member

children, (2) ICWA and other federal statutes that support the federal government’s

18longstanding policy o f encouraging tribal self-government and tribal courts, or (3) this

Court's precedent recognizing both.

I I . D id t h e M in t o T r ib a l C o u r t h a v e p e r s o n a l j u r is d ic t io n o v e r Pa r k s a n d S.P.? D id P a r k s c o n s e n t t o t h e ju r is d ic t io n o f t h e M in t o T r ib a l C o u r t ? D id Pa r k s a s a n o n -N a t iv e p a r e n t h a v e t h e r ig h t t o t r a n s f e r h is c a s e f r o m t h e M in t o T r ib a l C o u r t t o s t a t e c o u r t ?

Intervenor and Respondent Parks argue that the Minto Tribal Court lacked

personal jurisdiction over Respondent Parks because (1) the well-recognized “status”

exception that state courts apply in children’s cases is “ill-suited” to tribal courts because

of the lack of reservations in Alaska, and (2) the Minto Tribal Court lacked personal

Amicus Brief of the State of Alaska at *32, John v. Baker /, 982 P.2d 738 (No. S- 08099), 1998 WL 35180190. See also Memo, from Assistant Att’y Gen. Donna Goldsmith for Jay Lively, Dep’t o f Health and Soc. Servs. Comm’r at 3-4 (Mar. 29,2002) (No. 441-00-0005) (“The threshold question in any analysis regarding tribal jurisdiction over a particular child custody proceeding is whether the child is either a member or eligible for membership in the tribe seeking to exert its jurisdiction.”).

See, e.g., Iowa Mut. Ins. v. LaPlante, 480 U.S. 9, 14-15 (1978) (“Tribal courts play a vital role in tribal self-government, and the Federal Government has consistently encouraged their development.”) (internal citations omitted); Indian Tribal Justice Act of 1993, 25 U.S.C. §§ 3601 et seq. (providing financial and technical assistance to all tribes to further develop and enhance tribal justice systems).

8

contacts with Respondent Parks. Int. Br. at 24-34; Resp. Parks Br. at 21. In addition,

Intervenor and Respondent Parks argue that Respondent Parks had a right to transfer his

termination proceeding to state court. Int. Br. at 38-44; Resp. Parks Br. at 15.22. All of

these arguments are rooted in the dissent in John v. Baker I and lack citations to

supportive legal authority.

A. ICWA’s clear language and purpose supports tribal court jurisdiction over a member child and their non-consenting parent.

ICWA’s jurisdictional scheme appropriately focuses on the membership status of

19the child and not the identities o f other parties or potential parties. Neither ICWA’s §§

1911(a) and (b) jurisdictional provisions nor its § 1911(d) requirement to extend full faith

and credit to tribal proceedings is subject to an exception based on the membership status

o f a party other than the child. As discussed above, Congress heard testimony from

parties concerned that non-member parents would be subject to tribal court jurisdiction.

Yet nowhere did Congress provide exceptions for non-member parents or place

limitations on tribal courts5 abilities to evaluate personal jurisdiction over non-member

parents. Congress’s focus on membership and a tribe’s relationship with the member

child makes sense given that it is the same “status" exception analysis that state courts

use to determine their jurisdiction over children’s cases.

19 25 U.S.C. § 1903(4). See Kaltag, Case No. 3:06-cv-00211 TMB, at 10 (D. Alaskafiled Feb. 22. 2008) (explaining that in determining a tribal court’s jurisdiction, "it is the membership of the child that is controlling, not the membership of the individual parents”);John v. Baker /, 982 P.2d at 759 (“A tribe’s inherent sovereignty to adjudicate internal domestic custody matters depends on the membership or eligibility for membership o f the child.”).

9

B. Nothing in federal law or state law supports Intervenor’s assertion that a minimum contacts analysis is necessary.

Intervenor and Respondents ignore ICWA’s clear language and intent and instead

argue that the “status” exception to the personal jurisdiction requirement adopted by this

Court in S.B. v. S ta te0 does not apply to tribal courts because Alaska’s UCCJEA

excludes tribes from its definition o f “home state.” Int. Br. at 24-28; Resp. Parks Br. at

20-21; Resp. Stearman Br. at 5-6. With this argument, Intervenor and Respondents

attempt to (I) elevate a decision of the Alaska Legislature above Congress, and (2)

resurrect arguments stretching back to the now overruled Nenana line o f cases that the

jurisdiction o f Alaska’s tribal courts is exclusively tied to reservations or land.

Intervenor and Respondents urge this Court to hold that in order for a tribal court

order in an ICWA case to be valid, both parents must members o f the tribe, or in the

alternative, a tribe must have minimum contacts over a non-member parent. But, there is

simply no precedent for such a rule because to so hold would impose a personal

jurisdiction requirement on ICWA that the statute itself does not contemplate. A decision

by the Alaska Legislature to leave tribes out o f Alaska’s UCCJEA does not override

ICWA’s membership-based approach to jurisdiction and mandate that states must give

full faith and credit to tribal court orders just as they would for sister states.21

61 P.3d 6 (Alaska 2002).21

U.S. CONST, art. VI. See also Native Village ofTununak v. State, 303 P.3d 431, 449 (Alaska 2013) (recognizing that Alaska courts are bound by the Supremacy Clause to follow the congressional mandates of ICWA).

10

Invervenor discusses Alaska’s UCCJEA at great length in an effort to (1) tie tribal

jurisdiction to land or reservation status, and (2) implicate the need for a personal

jurisdiction analysis. Int. Br. at 24-38. Both of these arguments are familiar—they were

22the foundation of the dissent in John v. Baker 1> a favored citation in Intervenor’s brief.

Likewise, Intervenor and Respondents also engage in a great deal of minimum contact

analysis even though, as described above, the same analysis would not be required of the

superior court under the facts of this case. Int. Br. at 30-38; Resp. Parks Br. at 19. These

minimum contact arguments should also sound familiar to this Court as they are exactly

the type of unpersuasive arguments that out of state parents make in attempting to defeat

23Alaska’s jurisdiction over cases involving their children.

The triggering mechanism for tribal court jurisdiction over a children’s case has

always been the membership or eligibility for membership of the child in that tribe. As

Intervenor has previously and persuasively argued, £i[i]f tribal government is to have any

meaning at all, tribes must have the recognized adjudicatory authority and meaningful

24opportunity to provide for the overall welfare of their children.” ICWA was intended to

bring all Native American children eligible for tribal membership under the statute’s

protection. Nothing in its text or legislative record supports the notion that these

protections vary depending upon whether a case concerned a member child with a non

John v. Baker 7, 982 P.2d at 779 (dissent).See, e.g., E.H. v. State, 23 P.3d 1186 (Alaska 2001); McCaffery v. Green, 931 P.2d

407 (Alaska 1997).24 Appellee State of Alaska’s Brief at *24, C.R.H., 29 P.3d 849 (No. S-9677) 2000 WL 35590784.

11

member parent, and there is likewise no precedent suggesting this inherent power is

limited to only cases where both parents are members of the same tribe or that a personal

jurisdiction minimum contacts analysis concerning the non-member parent is necessary.

C. There is no right to transfer from tribal court to state court

Intervenor and Respondents argue that this case should be remanded to the

superior court for further proceedings because “parents have a right to transfer tribe-

initiated termination proceedings to state court.” Int. Br. at 38-44, 62, 69-70; Resp. Parks

Br. at 15, 22. Respondent Stearman similarly argues that the Minto Tribal Court did not

transfer the case to the superior court because it unfairly placed the burden on

Respondent Parks to use the correct terminology for a transfer. Resp. Stearman Br. at 17.

Intervenor and Respondents provide no legal authority to support these assertions that

Respondent Parks had a right to transfer his case to state court. Indeed, there is none.

Section 1911(b) o f ICW A provides for the transfer of a state court proceeding to

the member child’s tribal court. Any party can object to a transfer, but only a parent can

veto a transfer.25 But, ICWA contains no companion provision providing for the transfer

o f a case from tribal court to state court and thus no corresponding parental objection

provision for cases initiated in tribal courts. Intervenor and Respondents’ arguments that

Parks had a right to transfer have no statutory foundation and ignore Congress’s

intentions—“ICWA creates limitations on states’ jurisdiction over ICWA-defmed child

See N a t iv e A m . R i g h t s Fu n d , a P r a c t ic a l G u id e to the In d ia n C h il d W e l f a r e A c t § 7.6 (ed. rev. Sept. 2011).

12

custody proceedings, not limitations on tribes’ jurisdiction over those proceedings ”

Quite simply, there is no statutory support for extending ICWA’s § 1911(b) transfer

provision to limit a tribal court’s inherent jurisdiction, and no court has ever relied on §

191 l(b)’s parental veto provision to place limits on the inherent authority o f tribal courts

to initiate child protection cases, as the Minto Tribal Court has done here.

I I I . D id t h e M in t o T r ib a l C o u r t p r o v id e P a r k s w it h a m e a n in g f u lOPPORTUNITY TO PRESENT HIS CASE WHEN IT REFUSED TO LET HIS ATTORNEYSPEAK FOR HIM IN THE TRIBAL COURT?

A . T h e re is no p re c e d e n t s u p p o r tin g s ta te c o u r t rev iew o f th e “ m ean fn g fu ln ess” o f a tr ib a l c o u r t ’s p rocess.

Petitioners respectfully disagree with the call of the question as it implies that in a

minimal due process analysis, Alaska courts can evaluate the “meaningfulness” of a tribal

court’s process. Pet Br. at 27-31. As Petitioners have noted, the word “meaningful”

comes from cases that involved a tribal court’s total lack of notice to a litigant and it has

never been quantified outside of this context. Pet. Br. at 27-31. To suggest, as Intervenor

and Respondents now do, that state courts may evaluate the “meaningfulness” of a tribal

court’s procedure will only encourage state courts to act as the appellate tribunals of

tribal courts, as the superior court has done here.

In determining whether to grant full faith and credit to a tribal court order, the law

requires only that (1) the tribal court had jurisdiction when it entered the judgment, and

Tananas 249 P. 3d at 751.

13

(2) the tribal court afforded th e parties due process. In deciding whether tribal court

proceedings complied with due process, courts should consider whether the parties

received notice o f the proceedings and whether they were granted a full and fair

28opportunity to be heard. T h a t is the beginning and end o f the inquiry.

B. Intervenor ignores that Respondent Parks actively participated in Tribal Court proceedings.

As the record reflects, Respondent Parks was given notice of or participated in

29every single Tribal Court hearing over the course o f nearly a year. Exc. 67, 84, 103,

120-21, 132, 144-45. Yet, although Respondent presented a great deal of information

himself and did hot m ake a due process objection at any time, Intervenor and

Respondents now claim the failure to permit a single oral argument by a professional

attorney renders the Tribal Court judgment defective. Invervenor Br. at 44-52; Resp.

Parks Br. at 24-25; Resp. Stearman Br. at 8-12. In addition, they allege new due process

violations based on other Tribal Court procedures and claim that the Minto Tribal Court’s

use o f traditional law m eant that Respondent Parks had no advance notice "of the

standards by which his parental rights would be judged.” Int. Br. at 52-53.

These arguments a re unpersuasive for three reasons. First, they fail to

acknowledge that Congress has repeatedly declined to require attorneys for litigants in

Stan- v. George, 175 P.3d 50, 55 (Alaska 2008).28

John v. Baker I, 982 P .2d at 863.29

Respondent Parks w as not at the first emergency hearing or at the emergency protective order hearings. Exc. 65, 96, 136. See Pet. Br. at 32-35 for a discussion o f the various opportunities and methods that Respondent Parks used to present arguments on his own behalf in the M into Tribal Court.

14

tribal courts. Second, they encourage the Court to mandate that tribal court procedures

mirror state court procedures, an argument that this Court has heard before and rejected.

And finally, they ignore the fact that the Tribal Court gave Respondent Parks a simple,

achievable case plan at the beginning o f the case, no part of which he ever accomplished.

1. Congress has routinely declined to mandate attorneys in tribal courts except in very specific situations and no court has ever adopted Intervenor’s and Respondents9 arguments.

Intervenor and Respondents argue that Respondent Parks did not have a “full and

fair opportunity to be heard” because he was denied the opportunity to have his attorney

participate in oral argument. Int. Br. at 47. Resp. Parks Br. at 23-25; Resp. Stearman Br.

at 7-12. To support this assertion, Intervenor reasons that because state law requires that

indigent parents receive appointed counsel in state court termination of parental rights

cases, tribal court litigants are entitled to the same assistance from an attorney trained in

30western laws in order to be fully and fairly heard. Int. Br. at 47-48.

Intervenor also argues that Petitioners "focus incorrectly on whether tribal courts must permit an attorney to make formal oral argument in the style o f state/federal courts.” Int. Br. at 47 n.169. Intervenor suggests that Counsel Mitchell would have acted only as Respondent Parks’s “representative” and only wanted to “speak for him,” and thus that should have been allowed oral argument. Id. But the record reflects that Counsel Mitchell was acting as Respondent Parks's attorney and conducting himself as if in an adversarial adjudication—the very kind of behavior that Tribal Court Clerk Lori Baker addressed when she explained that “professional attorneys have an approach that is aggressive and confrontational and is not appropriate for our court.” Exc. 376. See Exc. 189-90 (noting that he represented Respondents, arguing that the Tribal Court “has no legal jurisdiction o f any kind to invent its own child custody proceedings,” and providing notice that he advised Respondents to take physical custody o f S.P. based on “the audacity and arrogance that the individuals who purport to be the Minto Tribal Court have displayed.”); Exc. 195-96 (explaining his “long-held view” that the Native Village

cont. . .

15

There are two problems with this argument: (1) Congress has already considered

this issue and declined to mandate attorneys for litigants in tribal courts, and (2) there is

no precedent supporting the assertion that tribal courts must allow attorneys oral

argument, and a finding as such would make this court an outlier.

a. In the Indian Civil Rights Act and the Indian ChildWelfare Act, Congress declined to force tribal courts to follow western notions of due process.

The early drafts o f the Indian Civil Rights Act of 1968 would have made tribes

subject to all the same constraints as the federal government in the U.S. Constitution.31

However, Congress heard testimony that imposing Constitutional requirements such as a

right to counsel, on tribal governments w'as not only impractical, but also would destroy

32the cultural traditions on which tribal legal systems were based. A significant part of

ICRA’s hearings covered whether due process, in the Western sense, was being provided

in tribal courts. In extensive testimony, it became clear that attorneys did not feature in

tribal courts, either in criminal or civil cases:

o f Minto was not a tribe because there are no federally recognized tribes in Alaska, and threatening federal court action).

25 U.S.C. §§ 1301 et seq. The early version was S. 961, 89th Cong., 1st Sess. (1965).32

See C o n s t it u t io n a l R ig h t s o f t h e A m e r ic a n In d i a n , S u m m a r y R e p o r t o f H e a r in g s a n d In v e s t ig a t io n s b y t h e S u b c o m m . o n C o n s t it u t io n a l R ig h t s o f t h e S . C o m m , o n t h e Ju d ic i a r y , 89th Cong. 9 (1966) (hereinafter S u m m a r y Re p o r t ); Hearings on S. 211 Before the Subcomm. on Constitutional Rights o f the S. Committee on the Judiciary, 91st Cong. (1969); see also Rights o f Members o f Indian Tribes: Hearing on H,R. 15419 Before the Subcomm. on Indian A ffairs o f the H. Comm, on Interior and Insular Affairs, 90th Cong, at 37 (1968) (statement of Domingo Montoya); 39 (Resolution o f A ll Indian Pueblo Council).

16

A

The testimony at the hearings made it clear that few, if any, tribal courts allowed professional attorneys to appear before them. Courts of Indian offenses had been prevented by federal regulation from hearing professional counsel until the Secretary o f the Interior revoked the regulation on May 16, 196 L Generally, representation by another member of the tribe was permitted . . . . Consequently, a de facto prohibition of professionals prevailed.

Because of this widespread practice as well as cultural and financial complications,

Congress ultimately decided to exempt tribal courts from being required to provide

34counsel to litigants, even to indigent criminal defendants. Instead, Congress chose to

balance individual and tribal interests, and exempted tribes from having to comply with

numerous Constitutional rights.35 In short, tribes can rule by theocracy, sentence civil

and criminal offenders to involuntary servitude, not provide counsel to all indigent

criminal defendants, or even offer trial by jury in all cases.36 It is abundantly clear that

Congress has made an explicit decision to not mandate that tribal courts function in the

same way as state and federal courts.

Congress similarly declined to require attorneys for parents in termination

proceedings in tribal courts when it passed ICWA. Section 1912(b) provides court-

Donald L. Burnett, Jr., An Historical Analysis o f the 1968 'Indian Civil Rights ’ Act, 9 H a r v . J. o n L e g is . 557, 579 (1971-1972) (internal citations omitted).34 25 U.S.C. § 1302(a)(6).

For a detailed discussion of which rights were omitted and why, see Burnett, supra note 33 at 590-91; see also SUMMARY R e p o r t supra note 32 at 25.36

Three federal circuit courts have recently reaffirmed tribal court policies o f not allowing attorneys for criminal defendants. See U.S. v. First, — F.3d — (9th Cir. 2013),2013 WL 5433755 at *2; U.S. v. Cavanaugh, 643 F.3d 592, 596 (8th Cir. 2011); US. v. Shavanaux, 647 F.3d 993, 999 (10th Cir. 2011).

17

r

appointed counsel to parents in any removal, placement, or termination proceedings in

state courts, but there is no corresponding right to counsel for parents in tribal courts even

37though individuals and organizations urged Congress to extend that right in 1978.

Several years later in an oversight hearing, Congress again received testimony that there

38should be a right to counsel for parents in tribal court termination proceedings. Yet

again, Congress declined to extend a parent's right to counsel in tribal courts.

b. State and federal law recognize the unique features oftribal courts and that tribal courts are not required to use due process procedures identical to those of Alaska courts.

Intervenor and Respondents argue that “state and federal law . . . require that an

indigent parent receive an appointed, government-funded counsel for the entire state

court termination o f parental rights cases” and that "by restricting the meaningful

participation of Parks’s attorney.55 the Minto Tribal Court did not comply with "state and

federal constitutional standards.” Int. Br. at 47-48. In support of this argument,

Intervenor cites to Alaska law and ICWA § 1912(b) guaranteeing indigent parents

representation in termination cases in state courts. Int. Br. at 47 n.170. But Intervenor

commits a two-part error: (1) it attempts to graft state due process requirements on to

Hearings on S . 1214 Before the Subcomm. On Indian Affairs and Public Lands o f the Comm, on Interior and Insular Affairs, 95th Cong., 190, 197 (1978) (“[T]he bill should be amended to make clear that children and parents appearing in tribal court have the right to representation by professional counsel . . . .”) (statement o f Calvin Isaac on behalf o f the National Tribal Chairmen’s Association).

Oversight on the Implementation o f the Indian Child Welfare Act o f 1978, Hearing before the Select Comm, on Indian Affairs, 98th Cong. 418 (1984) (letter from Don Milligan on behalf o f the Washington State Dept, of Social & Health Services).

18

tribal courts even though this Court and Congress have declined to do so, and (2) its

rationale actually weighs against the need for attorneys in tribal courts.

In John v. Baker II , this Court confronted similar due process allegations but,

echoing Congress during the 1960s 1CRA hearings, was careful to point out that any due

process analysis .must take into consideration the cultural differences that inform tribal

court procedures:

In deciding whether tribal court proceedings complied with due process, courts should consider whether the parties received notice of the proceedings and whether they were granted a full and fair opportunity to be heard before an impartial tribunal that conducted the proceedings in a regular fashion. . . . But this due process analysis in no way requires tribes to use procedures identical to ours in their courts. The comity analysis is not an invitation fo r our courts to deny recognition to tribal judgments based on paternalistic notions o f proper procedure. Instead, in deciding whether a party was denied due process, superior courts should strive to respect the cultural differences that influence tribal jurisprudence, as well as

39to recognize the practical limits experienced by smaller Court systems.

Despite Intervenor’s assertion otherwise, neither the United States Supreme Court

nor ICWA require court-appointed counsel for parents in termination cases. Because

ICWA intended to “increase tribal control over custody decisions involving tribal

40children,” its procedural and substantive mandates to not apply to tribal court

John v. Baker II, 30 P.3d at 74-75 (citations omitted and emphasis added). The briefing in John v. Baker II is instructive as this Court was unpersuaded by Appellee’s extensive briefing on a wide variety of supposed due process violations that mirror those argued by Intervenor and Respondents here. Brief of Appellee at *21-42, John v. Baker //, 30 P.3d 68 (No. S-09891) 2001 WL 36082045.40

John v. Baker I, 982 P.2d at 753.

19

4 1

proceedings unless the statute specifically says so. Intervenor cites to § 1912(b) o f

ICWA for support, but § 1912(b) applies only to state court proceedings.

In addition, the United States Supreme Court has held that there is no federal

constitutional right to counsel in termination cases. In Lassiter v. Department o f Social

Services o f Durham County, North Carolina, the Court acknowledged the fundamental

liberty interest at stake in a termination proceeding, but nonetheless held that there was

42no clear right to counsel in such cases. Intervenor relies on Lassiter and other cases to

support its argument that due process mandates full attorney participation in tribal courts.

43Int. Br. at 48-49, but much like the superior court’s focus on Flores v. Flores, this

comes at the exclusion of the bigger due process picture. Indeed, the U.S. Supreme

Court’s reasoning in Lassiter actually weighs against the need for attorneys in tribal

courts. In Lassiter, the Court recognized that the need for counsel was tied to the

circumstances o f the case, and in declining to find a right o f counsel for Ms. Lassiter, the

Court noted that "no expert witnesses testified and the case presented no specially

44troublesome points of law, either procedural or substantive.” Furthermore, as Ainici

rightly highlight, Alaska law- and ICWA’s § 1912(b) provide counsel to parents in

termination proceedings because state court proceedings are highly specialized,

41C o h e n ’s H a n d b o o k o f Fe d e r a l In d ia n L a w § 11.02[3], at 839 (Nell Jessup

Newton ed., 2012 ed.) (hereinafter C o h e n ’s HANDBOOK).42 452 U.S. 18 ,31 -3 2 (1 9 8 1 ) .43 598 P.2d 893 (Alaska 1979).44

Lassiter, 452 U.S. at 33.

20

adversarial, and nearly impossible for a lay person to navigate without the assistance of

an attorney. Amici Br. at 5. Unlike proceedings in state court, however, tribal court

proceedings are closer to the circumstances described in Lassiter in that they are often

non-adversarial and sometimes have less formal rules. Thus, the need for trained, highly-

specialized attorneys does not exist as it does in state courts.

Congress has made a conscious decision to respect tribal judicial systems in their

traditional forms. This concept is not limited to ICRA cases, but applies to all manner of

challenges to tribal court actions. Whether in the context of comity or full faith and

credit, Alaska courts and tribal courts agree, as did Congress and the United States

Supreme Court before them, that tribal due process does not have to mirror that of

Western courts.

2. It is customary and entirely appropriate for tribal courts to employ unwritten cultural traditions.

Intervenor argues that Respondent Parks needed his attorney in order to make

objections to the “unwritten cultural norm[s]” that were applied to him. Intervenor Br. at

50-54. In so arguing. Intervenor attempts to portray the Minto Tribal Court’s procedures

and laws as strange and opaque and describes the court as “unfamiliar" with fundamental

45Western concepts.” Int. Br. at 51.

45Curiously, to support this statement, Intervenor cites to a page o f the Minto

Constitution that articulates the purpose and judicial powers of the Minto Tribal Court and also assures (1) rights to a speedy and fair trial, (2) a limitation on cruel and unusual punishments, (3) equal protection for all persons, and (4) a prohibition on ex post facto convictions. Exc. 14. In addition, if the Tribal Court's customs were as mysterious as Intervenor suggests, it is unclear how oral argument by attorney trained in Western law

cont...

21

Despite Intervenor’s assertions, Alaska and federal law support the Minto Tribal

Court's use o f its customary law. In John v Baker I, this Court recognized that it is

entirely appropriate for tribal courts to rely on traditional laws and procedures: “tribes

must be able to apply their tribal law to [] disputes. Thus, tribal sovereignty over issues

46like family relations includes the right to enforce tribal law in resolving disputes.”

Indeed, for over twenty-five years this Court has recognized Congress’s “awareness that

tribal justice systems may differ from Anglo-American systems” and that in enacting

ICWA, “Congress expressed its clear preference for deferring to tribal judgment on

47matters concerning the custody of tribal children.”

3. Respondent Parks was given a case plan at the beginning of the case that clearly described the standards the court used to evaluate his ability to parent S.P.

Intervenor argues that the Minto Tribal Court terminated Respondent Parks’s

parental rights “based on unwritten, cultural law” and that Parks had no advanced notice

o f "the standards by which his parental rights would be judged.” Int. Br. at 52-53.

Invervenor faults the Minto Tribal Court for not articulating “substantive legal

principles,” “clear legal standards.” or providing previously published opinions. Int. Br.

and court procedure would have aided Respondent Parks. If the Tribal Court’s procedures were so cryptic, it would make more sense to advocate that Respondents should have been provided with lay-advocates from Minto.46

982 P.2d at 761. See also Calista Corp. v. Mann, 564 P.2d 53, 61 (Alaska 1977) (“The Anglo-American system of justice differs substantially from the traditional [Alaska Native] systems, which predated Western cultures by hundreds of years.”).47 In re J.M., 718 P.2d 150, 153-54, 155 (Alaska 1986) (internal quotations and alterations omitted).

22

at 52-53. These arguments are wholly without merit since the Tribal Court clearly

articulated a case plan for Respondent Parks at its second court hearing on July 9, 2008

and at every court hearing afterwards.

In its second hearing in July 2008, the Tribal Court provided Parks with the steps

he needed to take in order to have S.P. placed in his care: “[1] obtain an assessment

through [an anger management] program and follow the recommendations o f said

assessment, [2] provide the court with documentation of the assessment and follow-

through services, and [3] prepare safe, suitable housing for an infant that will be verified

by a home visit from TCC staff.” Exc. 69. Respondent Parks also had supervised

visitation with S.P. Exc, 73, 81. Two weeks later Respondent Parks had an altercation

with the Fairbanks police concerning traffic violations, driving with a suspended license,

and an arrest warrant due to a domestic violence incident against Respondent Stearman.

Exc. 85. At a hearing the following month, the Tribal Court heard testimony from

Respondent Parks about this activity, as well as his progress on the case plan. Exc. 85.

The Tribal Court again ordered Respondent Parks to continue working on his case plan,

and also ordered him to '‘take and complete parenting classes.” Exc. 86.

At a December 2008 hearing the Tribal Court heard testimony from Respondent

Parks on his ability to provide a stable home from S.P. and his participation in a batterers’

intervention program. Exc. 105, 108-11. The Tribal Court noted that Respondent Parks

made progress on part of his case plan, encouraged him to continue on the other aspects

o f his case plan, and granted his request to change the location of his visits with S.P.

Exc. 105, 108-11.

23

In a March 2009 hearing, the Tribal Court heard testimony from Respondent Parks

on his limited progress in complying with his case plan, but noted that the requirements

o f the plan, issued eight months prior, had not been completed in a timely manner. Exc.

120-26. The Tribal Court again ordered Respondent Parks to (1) re-enter and complete

an anger management program and submit necessary documentation, (2) provide a

“suitable and safe home5’ for S.P., and (3) take and complete parenting classes. Exc. 124.

Respondent Parks’s failure to make progress on his case plan was complicated by

his repeated violent behavior. Exc. 96-101, 136, 145. In early May 2009, Respondent

Parks was involved in a visitation incident at Tanana Chiefs Conference (TCC) in which

Respondent Parks shook S.P., acted aggressively towards TCC staff, and threatened to

leave the building with S.P. Exc. 134. Shortly thereafter, on the advice o f their attorney,

Respondents kidnaped S.P. from Petitioners home and only returned her after the

Fairbanks Police intervened. Exc. 145, 189-90. Two days later the Tribal Court

terminated Respondents5 parental rights. Exc. 144-47. In its termination order, the Court

noted that “Mr. Parks has continued to be a threat to staff and foster parents, which

escalated and resulted in mandatory security escort on [TCC] property and two tribal

protective orders to be placed against him." Exc. 145, 150.

Intervenor argues that Respondent Parks had no way o f knowing what standards

the Minto Tribal Court would use to evaluate his fitness to parent S.P. and claims that had

he known the Tribal Court’s standards, he could have offered evidence showing he could

support S.P. or provide “character witnesses to refute the allegation that he has a ‘volatile

nature.”5 Int. Br. at 53. These arguments are disingenuous given the straightforward case

24

plans that the Tribal Court developed for both parents addressing these very issues from1

the very beginning of the case. Respondent Parks completed no part o f his case plan, and

his failure was the basis for the Tribal Court's termination order in which it “reluctantly

conclude[edj" that it was in S.P.’s best interest to terminate Respondent Parks's parental

rights “due to the failure to provide a suitable home and support for the child and the

volatile nature of the father.” Exc. 146.48

IV . D id t h e M in t o T r ib a l C o u r t p r o v id e P a r k s w it h a d e q u a t e n o t ic eTHAT HIS ATTORNEY WOULD ONLY BE ABLE TO MAKE ARGUMENTS BY SUBMITTING THEM IN WRITING BEFOREHAND?

Intervenor and Respondents argue that Respondent Parks was not given adequate

notice that his attorney would not be able to address the Tribal Court judges directly by

(1) dismissing as “vague” a sworn affidavit of the Minto Tribal Court Clerk that says the

opposite (2) opining that the Minto Tribal Court rules actually suggest that attorneys are

As additional evidence of the alleged shifting standards of the Minto Tribal Court, Intervenor argues that the Tribal Court ignored Parks’s requests that S.P. be placed with his mother, Evelyn Parks, Int. Br. at 53-54. As a preliminary matter, ICWA acknowledges that tribal courts may use their own placement preferences, and tribes are not subject to § 1915 which explicitly applies only to state child custody proceedings. In addition, the record shows that Evelyn Parks never took the necessary steps to have S.P. placed in her home. At the July 2008 hearing the Tribal Court heard Evelyn Parks’s concerns, explained to her that S.P. was placed with Respondent Stearman’s family under an emergency custody action, thanked her for her involvement, and—most importantly— explained to her the steps necessary for her to become S.P.’s guardian: “[1] fill out a foster care application, [2] submit a criminal background history of anyone over 16 years old in her home, and [3] [complete] a home safety check prior to the child being placed in her home, per Minto foster care licensing policy and federal regulations.” Exc. 67, 73. Evelyn Parks knew how to complete Tribal Court paperwork because she later completed the paperwork necessary to take S.P. on an overnight trip to see family. Exc. 150. But though Evelyn Parks attended subsequent court hearings and continued to state that she wanted S.P. to live with her, she never filled out a foster care application or took other actions to follow the Tribal Court’s request. Exc. 159.

25

allowed to directly address the Tribal Court judges, and (3) suggesting that the Tribe’s

recognition o f ICRA means that it would not reasonably forbid attorneys to speak at a

termination hearing. These arguments fail because (1) again, Intervenor essentially

argues that tribal courts must function exactly as state courts, (2) Intervenor

misunderstands Minto Tribal Court rules, and (3) Intervenor misinterprets federal law.

A. The provided notice complied with both Minto Tribal Court rules and due process requirements.

Intervenor asserts that the record "contains no evidence that Parks received

advance written notice of Minto’s rule that attomey[s] cannot speak to the court,” and

dismisses the affidavit of the Tribal Court clerk stating that she provided verbal notice

“on several occasions.” Int. Br. at 55, 59-60; Exc. 377. Intervenor suggests that this “lack

o f notice denied Parks the right to have his attorney represent him in writing” and thus

“severely compromised” his due process rights. Int. Br. at 55-56.

There are multiple problems with this argument. As explained by the Tribal Court

Clerk, Minto’s Code permits verbal notice to litigants. Exc. 376. Yet Intervenor provides

no precedent to suggest that verbal notice in accordance with tribal court rules is

49inadequate or a due process violation.

In ICWA, Congress declined to mandate specific due process requirements for tribal courts. Notably, Respondent Parks’s previous counsel cautioned Congress not to equate written notice with due process when he testified in support of ICWA in 1978. Hearings on S. 1214 Before the Subcomm. on Indian Affairs and Public Lands o f the Comm. on Interior and Insular Affairs. 95th Cong.. 90. 91 (1978) (“I would point out that it has been my experience that the preoccupation o f our culture and our legal system with an equating written notice with the due process does not apply, in my judgment, in most Eskimo communities.”) (statement o f Donald Mitchell on behalf of Rural Alaska

cont...

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Intervenor cites Nash v, Matanuska-Susitna Borough50 for the proposition that oral

notice is “itself indicative of an inadequate procedural framework,” but Nash is not

dispositive because the heart o f its due process violation was the litigant’s near total

inability to call witness and present evidence.5' Here, there is nothing to suggest that

Respondent Parks was ever kept from bringing witnesses or presenting evidence—

indeed, he did so at nearly every tribal court hearing. Exc. 67, 84, 103, 120,132, 144.

In determining whether full faith and credit is to be accorded, this Court looks for

minimum due process, not procedures identical to those found in state courts. Indeed,

“this due process analysis in no way requires tribes to use procedures identical to our in

their courts. The comity analysis is not an invitation for our courts to deny recognition to

52tribal judgments based on paternalistic notions of proper procedure” The cases cited

by the both Intervenor and the superior court all involve the failure to allow a litigant to

present evidence, the failure to give notice of a hearing, and the failure to provide a

hearing at all. There simply is no comparison to the facts of this case. Respondent

received notice of the hearing, received notice that his attorney would not be permitted

oral argument, and his counsel submitted objections in writing. Exc. 377, 189, 195. That

Community Action Program). Although the Tribal Court is governed by its own rules o f procedure, it is informative to note that this notice complies with the Alaska's notice rules. See Childs v. Childs, — P.3d — (Alaska 2013), 2013 WL 5587823 at *4. (“To comply with due process, notice must be given sufficiently in advance of scheduled court proceedings so that the parties have a reasonable opportunity to prepare."). s0 239 P.3d 692 (Alaska 2010).51 Id. at 700 n.12.

John v. Baker II, 30 P.3d at 74.

27

his attorney chose to not submit more than two short letters challenging the existence of

the Minto Tribal Court is not the fault o f the Tribal Court.

B. Minto Tribal Court rules do not permit attorneys ora! argument and nothing in federal law suggests that it must.

Next Intervenor suggests that the Tribal Court rules actually do allow attorneys to

directly address the Tribal Court judges and further suggests that the Tribe’s recognition

o f ICRA means that it would not reasonably forbid attorneys to speak at a termination

hearing. Int. Br. at 56-58. But, Intervenor misunderstands Minto Tribal Court rules,

misinterprets Minto’s inclusion of the ICRA, and ignores the U.S. Supreme Court’s

advice that ‘‘tribal courts are best qualified to interpret and apply tribal law.”53

The Minto Tribal Court uses both written and unwritten law. As Petitioners have

previously discussed, this is entirely appropriate and has been recognized as such by

Alaska and federal courts. Minto’s procedures allow parties to “present everything they

feel is relevant to the case.” Exc. 41. As the record shows, Respondent Parks participated

in nearly all o f the tribal court hearings, brought witnesses, and discussed his case plan

and visitation schedule. Exc. 67, 84, 103, 120, 132, 144. In addition, he was free to

confer with his attorney and present any relevant arguments, and his attorney was

likewise welcome to submit arguments to the court in writing. That Respondent Parks

and his attorney chose not to take advantage of these opportunities is again not the fault

o f the Tribal Court.

Iowa Mut. Ins. Co., 480 U.S. at 16.

28

Intervenor’s assertion that the mention of ICRA in the Tribe's written procedures

suggests that attorneys are not forbidden from oral argument is likewise misguided. Int.

Br. at 58. As discussed above, ICRA does not mandate attorneys— even for pro se

criminal litigants. Tribal courts’ rules often cite to ICRA, but that in no way suggests that

tribal courts implicitly adopt unarticulated due process rules that are not included in its

54text. Nothing in the Minto Tribal Court’s rules or ICRA suggest that attorneys are

required in tribal court proceedings and any suggestions otherwise are attempts to graft

state due process procedures on to tribal courts in direct conflict with federal law.

V . I f P a r k s w a s d e n ie d a m e a n in g f u l o p p o r t u n it y t o b e h e a r d in t h eT r ib a l C o u r t , w a s t h e d e n ia l p r e ju d ic ia l i f t h e M in t o T r ib a l C o u r tHAD JURISDICTION?

As a preliminary matter, state due process tests apply to state court decisions and

Petitioners do not concede that such tests apply to tribal court judgments.55 That being

said, Respondent Parks fails to establish a due process violation because the inability to

have his attorney formally address the Minto Tribal Court was not prejudicial.

Although Intervenor urges this Court to find a due process violation and argues

that there is no way o f knowing ‘‘whether the potential objections of Parks’s attorney

would have changed the outcome of the termination proceedings,” Int. Br. at 61, it is

See Colville Confederated Tribes v. St. Peter, 20 Indian L. Rep. 6108 (Colv. Ct. App. 1993) (We “apply due process principles under the ICRA with flexibility and in a manner contextually adapted by the Colville Confederated Tribes) (citations omitted); Id. at 6155 (“Even if the court should follow the Federal Rules of Evidence . . . this does not mean that the tribal culture, tradition and autonomy have been abandoned.")*

DM. v. State, Div. o f Family & Youth Servs, 995 P.2d 205, 212 (Alaska 2000) (citing Mathews v. Eldridge, 424 U.S. 319 (1976)).

29

almost certain that they would not have. The only jurisdictional arguments that Parks

articulated were based on incorrect assertions that the Native Village o f Minto did not

legally exist and the Minto Tribal Court exercised no legal authority. Indeed, though

Intervenor frequently describes Respondent Parks’s jurisdictional arguments as

“complicated,” it bears repeating that none o f the arguments about personal or subject

matter jurisdiction were raised in the Tribal Court, providing the Tribal Court with no

opportunity to evaluate them.

Instead, Respondent’s jurisdictional arguments during the Tribal Court proceeding

focused on whether or not the Native Village o f Minto was a federally recognized tribe

with the authority to establish a tribal court. Counsel Mitchell sent letters to TCC and

Petitioners describing Parks’s jurisdictional objections which were articulated only as an

explanation o f Counsel’s “long-held view” that the Native Village of Minto was not a

federally recognized tribe, and as such the “individuals who purport to be the Minto

Tribal Court” had “no legal jurisdiction of any kind to invent its own child custody

proceedings.” Exc. 195-96, 189-90. There is no indication in the record that Counsel

Mitchell’s oral argument to the Minto Tribal Court would have raised additional

arguments. Tellingly, five days after the Tribal Court terminated his parental rights,

Respondent Parks filed a complaint in federal district court mirroring those arguments

made in his counsel’s letters during the tribal court case. Nowhere in the complaint did

Respondent Parks make jurisdictional arguments based on subject matter or personal

jurisdiction or his status as a non-member of the Native Village of Minto. The existence

30

of federally recognized tribes in Alaska is settled law. Certainly it was not prejudicial

for the Minto Tribal Court to—against its own traditional court rules—hear oral argument

57from an attorney as to why it did not actually exist.

Even if Respondent Parks’s general objection to the Minto Tribal Court’s

jurisdiction over him encompassed the arguments articulated by the superior court

regarding personal jurisdiction, subject matter jurisdiction, and reassumption under 25

U.S.C. § 1918, there would be no prejudice because, as described above in Sections I and

II, none o f those arguments have merit. See also Petitioner’s Brief at 18-19, 19-26.

Respondent Parks was not prevented from presenting his case to the Tribal Court

in any way other than having an attorney do so for him through oral argument.

Intervenor argues that Parks’ inability to have his attorney present oral argument in one

hearing kept him from “asking questions about the unwritten law being applied, present

58relevant evidence, and raise objections.” Int. Br. at 62. But, the record shows that

See McCrary v. Ivartof Bay Village, 265 P.3d 337, 342 (Alaska 2011); John v. Baker /, 982 P.2d at 748-50. ‘

Respondent Parks sought a declaratory judgment that “the Athabascan Indian residents o f the defendant Native Village o f Minto" were not a federally recognized tribe and thus had no judicial authority S.P. Complaint, S.P. v. Native Village o f Minto, Case No. 3:09-CV-00092 HRH (May 12, 2009), Exc 203-04. This argument continued through Respondent Parks’s appeal to the Ninth Circuit Court of Appeals. See also Transcript o f Oral Argument, S.P. v. Native Village o f Minto, Case No. 10-35000 (9th Cir. argued May4. 2011), 2011 WL 3468451 (referring to the Minto Tribal Court as “fake” and a “front”).58

To the extent that Intervenor argues that an attorney’s oral argument would have helped Respondent Parks present a “quantum of evidence” or lay “the evidentiary foundation that would be necessary for an appeal, Intervenor again cites state law applicable to state courts in its effort to graft state standards onto tribal courts—an approach that this court has rejected. Intervener Br. at 62.

31

Respondent Parks already did all o f this himself. In nearly every Tribal Court hearing,

Respondent Parks talked with the court about his wishes for reunification with S.P., his

visitation with S.P. and plans for holiday travel, his finances and ability to provide a

home for S.P., and most importantly, his progress on the clear three-part case plan that

the Tribal Court had provided him at the beginning of the case. Exc. 67, 84, 103, 120,

132, 144.

Finally, it is critical to remember that Intervenor and Respondents have not alleged

that the facts or law underlying the Tribal Court’s substantive decision to terminate

Respondent’s parental rights are in any way flawed. In fact, the wisdom of the Tribal

Court’s judgment has proven true in the last three and a half years, as Respondent Parks

has committed increasingly serious crimes. He was recently convicted o f multiple felony

charges, including two counts of kidnapping, four counts o f felony assault, and one count

59of witness tampering, and he will likely serve a very long prison sentence. The end

result—termination of his parental rights—surely would be the same today, regardless o f

whether counsel had presented oral argument.

VI. W h a t e f f e c t , i f a n y , d o e s P a r k s ’s f a i l u r e t o e x h a u s t h i s r e m e d ie s b yAPPEALING IN THE TRIBAL COURT HAVE ON HIS DUE PROCESS CLAIM?

Intervenor and Respondents present several arguments supporting their claim that

Respondent Parks need not exhaust his tribal remedies before filing various cases in state

and federal court. Though they repeat and expand on each other, their arguments are that

59See Sam Friedman, Fairbanks man found guilty o f felony charges for severe

beating, couldface 99years, FAIRBANKS DAILY NEW S-MlNER, Aug. 13, 2013.

32

(1) Alaska case law supporting the exhaustion of tribal remedies and the federal court’s

exhaustion rule do not apply to this-casei. and (2) requiring appellate review by-the Minto

Tribal Court would only serve a delay because the Tribal Court did not have jurisdiction

to begin with and because problems with the Minto Tribal Court’s trial court procedures

would make a review “futile.” Int. Br. at 63-66; Resp. Stearman Br. at 14-16; Resp. Parks

Br. at 29. These arguments are meritless.

First, Intervenor and Respondents by incorporation argue that Alaska courts do not

support the exhaustion doctrine in cases such as this, citing John v. Baker II for the

proposition that “this Court has explicitly rejected sa strict exhaustion requirement for a

tribal adjudication of child custody cases.’” Intervenor Br. at 63. This argument is based

on a wishful editing of the Court’s decision in John v. Baker II. In John v. Baker II, this

court remanded to the Northway Tribal Court for further proceedings and explained:

While we do not adopt a strict exhaustion requirement for tribaladjudication of child custody cases, because such a requirement might insome cases disserve the best interests o f the child, we note that a party’sfailure to seek tribal appellate review may seriously undermine any claims

60that the tribal court denied him due process.

Intervenor offers no evidence that S.P.’s best interests are in any way affected by

honoring the Minto Tribal Court’s appellate procedures. As Respondents have

John v. Baker //, 30 P.3d at 74 n.31 (emphasis added). Because Baker did not allege or prove that the Northway Tribal Court was incapable o f fairly deciding future issues in the case—which would have been a due process violation—this Court ordered the case referred back to the Tribal Court. Id. at 78-79.

33

recognized, S.P. has lived with the Petitioners in a safe environment61 for the last five

years, and there is no valid reason to ignore this Court’s instruction that failure to seek

tribal appellate review may seriously undermine any claims of a due process violation.

Intervenor and Respondents also suggest that the federal rule of tribal exhaustion

does not apply in this case as the Minto Tribal Court lacked jurisdiction over Respondent

Parks’s “nonmember[] conduct” and because the Tribal Court is not the most qualified

body to evaluate its jurisdiction. Int. Br. at 65-66. But, as Petitioners have noted, the

doctrine o f tribal exhaustion requires federal courts to defer to tribal courts in a wide

range o f cases where federal courts and tribal courts have concurrent jurisdiction,

including cases involving tribal children where a tribal court’s jurisdiction is at issue.

Petitioner’s Br. at 50-51. In such cases, a federal district court will review the tribal

court’s finding o f tribal jurisdiction only after all tribal remedies have been exhausted.62

For example, In DeMent v. Oglala Sioux Tribal Court, the federal district court

found that the tribal court lacked jurisdiction in a long-tenn inter-state custody case

between a Native American mother and a non-Native father because the tribe's own

constitution only permitted jurisdiction over non-members if the non-member

63consented. DeMent argued that he did not have to exhaust tribal court remedies

because the tribal court violated an express jurisdictional prohibition— the same argument

See Exc. 145, 159 (Respondents thanking Petitioners for their care o f S.P.).See Deborah F. Buckman, Annotation, Construction and Application o f Federal

Tribal Exhaustion Doctrine, 186 A.L.R. FED. 71 (2012).63 874 F.2d 510, 516 (8th Cir. 1989).

34

64that Intervenor and Respondents put forth here. Nonetheless, the Eighth Circuit Court

of Appeals reversed the district court and held that the Oglala Sioux Tribal Court’s

assertion of jurisdiction did not constitute a patent violation o f express jurisdictional

limitations and that the non-Indian father must “exhaust the jurisdictional dispute in tribal

court.”65 In so holding, the Eighth Circuit noted that the United States Supreme Court

has consistently reiterated the need for litigants—both Indian and non-Indian—to exhaust

tribal remedies before seeking review of the tribe’s jurisdiction in federal court:

Regardless o f the basis for jurisdiction, the federal policy supporting thetribal self-government directs a federal court to stay its hand in order togive the tribal court a “full opportunity to determine its own jurisdiction.” .. . . At a minimum, exhaustion of tribal remedies means that tribal appellatecourts must have the opportunity to review the determinations of the lower

66tribal courts.

Finally, Respondents additionally argue that requiring appellate review would only

serve to delay and would be “futile” because: there is no Tribal Court guarantee to

appellate review, there is no audio recording for the appellate court to review, and there

“is no guarantee that the judges on the appeal will be any different from the judges that

67originally heard the case.” Resp. Parks Br. at 29; Resp. Stearman Br. at 14-16. These

Id. (quoting Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 16 (1987)).Respondent Stearman further asserts that the Minto Tribal Court “used a

combination of formal and informal rules in conducting this trial” and that “[t]he formal rules were not strictly followed while the informal rules were strictly followed.” Resp. Stearman Br. at 14. Respondent Stearman provides no citations to the record, examples, or explanations for this assertion. These allegations and others like them are not grounded

cont.. .

35

arguments should be rejected outright for two reasons. First, state and federal law are

clear that tribal courts do not have to mimic state courts in form or procedure. In

addition, as the United S tates Supreme Court has cautioned that “[t]he alleged

incompetence o f tribal courts is not among the exceptions to the exhaustion requirement.

68. .