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Asa'carsarmiut Tribal Council v. Wheeler

Supreme Court of Alaska

November 21, 2014

ASA'CARSARMIUT TRIBAL COUNCIL, Appellant,
v.
JOHN D. WHEELER III, Appellee.

Appeal from the Superior Court of the State of Alaska, Third Judicial District, No. 3AN-12-04581 CI Anchorage, Andrew Guidi, Judge.

Samuel J. Fortier, Fortier & Mikko, P.C., Anchorage, for Appellant.

Carl D. Cook and Whitney-Marie K. Bostick, Law Office of Carl D. Cook, P.C., Anchorage, for Appellee.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

FABE, Chief Justice.

I. INTRODUCTION

J.W. is the son of Jeanette Myre, a member of the Asa'carsarmiut Tribe, and John Wheeler, a non-member. In 2007 Myre petitioned the Asa'carsarmiut Tribal Court to assume jurisdiction over the custody of J.W. After a hearing in which both parents participated, the tribal court awarded Myre primary physical custody and granted Wheeler limited visitation rights. In 2011 Wheeler kept J.W. at the end of a visitation period, alleging that he was concerned about J.W.'s safety if he were returned to Myre's custody. Wheeler also initiated custody proceedings in state superior court. Myre moved to enforce the 2007 tribal court custody order; the superior court found it to be a lawful custody order and returned J.W. to Myre's custody.

In 2012 Myre was arrested for child endangerment, and the State of Alaska assumed protective custody of J.W. Wheeler moved for modification of the custody order in the superior court. The Asa'carsarmiut Tribal Council intervened in the superior court proceeding to argue that the superior court lacked jurisdiction to modify the tribal court custody order. The superior court concluded it had modification jurisdiction and determined there had been substantially changed circumstances such that modification was in J.W.'s best interests.

The superior court awarded Wheeler primary physical custody. Neither Wheeler nor Myre has appealed the superior court's decision, but the tribal council appeals, arguing that the superior court lacked modification jurisdiction. The narrow question before us in this appeal is thus whether the tribal council has standing to appeal the superior court's modification decision in light of the parents' election not to appeal that decision. We conclude that under this circumstance, the tribal council does not have standing, and we therefore dismiss the appeal.

II. FACTS AND PROCEEDINGS

A. Background And Tribal Court Proceedings

J.W. was born in 2005 to John D. Wheeler III and Jeanette Myre. Myre is a member of the Asa'carsarmiut Tribe, a federally recognized tribe, [1] and J.W. is eligible for tribal membership. Wheeler is not a tribal member and resides in Washington.

In December 2007 Myre successfully petitioned the Asa'carsarmiut Tribal Court to assume jurisdiction over the custody of J.W. The tribal court held a custody hearing that month, in which both Myre and Wheeler participated. The tribal court awarded primary physical and sole legal custody to Myre, emphasizing the importance of fostering J.W.'s awareness of his Asa'carsarmiut cultural heritage and identity. Wheeler was granted limited visitation rights. In its order, the tribal court noted that it would "retain jurisdiction over the custody of [J.W.]"

In 2008 Wheeler petitioned the tribal court to modify the child support order and to request additional visitation with J.W. The tribal court declined to modify the order and denied the request for additional visitation. Wheeler also petitioned in 2009 asking the tribal court to reopen the custody case on the ground that J.W. was old enough to travel between Alaska and Washington. There is no evidence in the record that the tribal court responded to this petition.

In December 2011 J.W. traveled to Washington to spend Christmas with Wheeler. J.W. was scheduled to return to Alaska on December 30, but Wheeler kept J.W. in Washington. On December 30 Wheeler emailed Jerald Reichlin, the lawyer for the tribal court, informing him that he believed that there had been "a dramatic change in circumstances" that impacted J.W.'s welfare. Specifically, Wheeler informed Reichlin that he had been unable to contact Myre and that he believed that she was in hiding from the father of her other two children, George Johnson. In his email, Wheeler wrote: "I respectfully request a hearing before the Asa'Car[s]a[r]m[iu]t Tribal Council, seeking 'full custody' of my son." Two days later, Wheeler further informed Reichlin that Myre had been on a "binge, blackout style, drunk" and that Johnson had made death threats to her; he indicated that he had spoken with Myre and that she had "agreed that [J.W.] was safer and in better care down here in Washington with [Wheeler]." On January 3, 2012, Reichlin responded to Wheeler:

I have received your correspondence and your notes and I shall forward them to the Tribe. There is nothing before the Tribal Court at this moment. [J.W.'s] travel arrangements were between you and Jeanette. The Tribal Court is not involved in changes of travel plans. If you wish to file a motion to alter custody orders, you are free to do so. I believe that you know the process; you will need to make your request in writing and support it with information you want the court to consider. . . . Also, you should be aware that you and Jeanette have latitude to alter your arrangements. If the parties are in accord, unless ...

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