STATE OF ALASKA; PATRICK S. GALVIN, in his official capacity as Commissioner of the Alaska Department of Revenue; and JOHN MALLONEE, in his official capacity as Director of the Alaska Child Support Services Division, Appellants,
v.
CENTRAL COUNCIL OF TLINGIT AND HAIDA INDIAN TRIBES OF ALASKA, on its own behalf and as parens patriae on behalf of its members, Appellee
Page 256
Appeal
from the Superior Court of the State of Alaska, First
Judicial District, Juneau, Philip M. Pallenberg, Judge.
Superior Court No. 1JU-10-00376 CI.
Mary
Ann Lundquist, Senior Assistant Attorney General, Fairbanks,
Stacy K. Steinberg, Chief Assistant Attorney General,
Anchorage, and Michael C. Geraghty, Attorney General, Juneau,
for Appellants.
Jessie
Archibald, CCTHITA Child Support Unit Attorney, Juneau, and
Holly Handler and Sydney Tarzwell, Alaska Legal Services
Corporation, Juneau, for Appellee.
Erin C.
Dougherty and Matthew N. Newman, Native American Rights Fund,
Anchorage, for Amicus Curiae National Association of Tribal
Child Support Directors.
Karen
L. Loeffler, United States Attorney, and Richard L. Pomeroy,
Assistant United States Attorney, Anchorage, and Ragu-Jara
Gregg and Stacy Stoller, Department of Justice, Washington,
D.C., for Amicus Curiae United States.
Before:
Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger,
Justices. WINFREE, Justice, with whom STOWERS, Justice,
joins, concurring in part.
OPINION
Page 257
FABE,
Chief Justice.
I.
INTRODUCTION
A
federally recognized Alaska Native tribe has adopted a
process for adjudicating the child support obligations of
parents whose children are members of the tribe or are
eligible for membership, and it operates a federally funded
child support enforcement agency. The Tribe sued the State
and won a declaratory judgment that its tribal court system
has subject matter jurisdiction over child support matters
and an injunction requiring the State's child support
enforcement agency to recognize the tribal courts' child
support orders in the same way it recognizes such orders from
other states. Because we agree that tribal courts have
inherent subject matter jurisdiction to decide the child
support obligations owed to children who are tribal members
or are eligible for membership, and that state law thus
requires the State's child support enforcement agency to
recognize and enforce a tribal court's child support
orders, we affirm.
II.
FACTS AND PROCEEDINGS
A.
The Uniform Interstate Family Support Act
The
Uniform Interstate Family Support Act (UIFSA)[1] governs
Alaska's enforcement of child support orders issued by
tribunals other than Alaska's state courts. Federal child
support enforcement funds are conditioned on a state's
passage of UIFSA,[2] and as a result every state in the
country has enacted identical legislation.[3]
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UIFSA
allows parents to register and enforce child support orders
issued by the tribunal of another state[4] in the same manner
as orders issued by Alaska's courts.[5] It also allows
parties to send the documents required to register another
state's support order directly to the Alaska Child
Support Services Division (CSSD), the arm of state government
charged with enforcing child support orders.[6] CSSD enforces
these orders through administrative procedures " without
initially seeking to register the order." [7] UIFSA also
includes procedures for direct enforcement of orders from
other tribunals. Income withholding orders can be sent
directly to obligors' employers in Alaska without first
registering the orders with the state courts or
CSSD.[8] When an employer receives a facially
regular order from another state, the employer must comply
and withhold the income as directed, just as if the order had
come from an Alaska court.[9]
Whether the out-of-state child support order is registered
with Alaska's courts, enforced by CSSD without court
involvement, or sent directly to an employer, an obligor can
contest its validity or enforcement.[10] The party
contesting an order has the burden of proving one of several
available defenses, including that " the issuing
tribunal lacked personal jurisdiction over the contesting
party," and that " there is a defense under the law
of this state to the remedy sought." [11]
UIFSA
applies to support orders " issued in another
state." [12] As originally enacted in 1995,
Alaska's version of UIFSA differed from the model version
by not including Indian tribes within its definition of
" state." [13] In 2008 the State twice requested
that the federal Department of Health and Human Services
exempt it from the requirement that states enact UIFSA
exactly as the model legislation was written. Both requests
were denied. In 2009 the State legislature amended AS
25.25.101 to include Indian tribes in its definition of
" state." [14] As Alaska's version
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of UIFSA now reads, " the term 'state' includes
an Indian nation or tribe." [15]
The law
amending the statute included the legislature's view that
" UIFSA does not determine the authority of an Indian
tribe to enter, modify, or enforce a child support
order." [16] It went on to state that
the legislative intent is
(1) to remain neutral on the issue of the underlying child
support jurisdiction, if any, for the entities listed in the
amended definition of " state" ;
(2) not to expand or restrict the child support jurisdiction,
if any, of the listed " state" entities in the
amended definition; and
(3) not to assume or express any opinion about whether those
entities have child support jurisdiction in fact or in
law.[17]
B.
The Central Council Of Tlingit And Haida
Indian Tribes Of Alaska's Tribal Child Support
Unit
The
Central Council of Tlingit and Haida Indian Tribes of Alaska
(" Central Council" or " the Tribe" ) is
a federally recognized Indian tribe based in Southeast
Alaska.[18] Central Council has established a
tribal court system asserting jurisdiction over civil,
criminal, probate, and juvenile law matters.[19] Central
Council also has a child support enforcement program known as
the Tribal Child Support Unit. The Unit was first initiated
in 2004, and it received full federal funding as Alaska's
first Tribal IV-D program in 2007.
Tribal
IV-D programs are federally funded child support enforcement
programs.[20] The federal government reimburses
Tribal IV-D programs that comply with federal statutory and
regulatory requirements for much of the cost of enforcing
child support orders, just as it does for states' child
support enforcement programs. One of these requirements is
that any potential Tribal IV-D program describe " the
population subject to the jurisdiction of the Tribal court or
administrative agency for child support enforcement
purposes." [21] Another is that each Tribal IV-D
program " [e]stablish one set of child support
guidelines by law or action of the tribunal for setting and
modifying child support obligation amounts."
[22]
Central
Council's Tribal IV-D plan for the Tribal Child Support
Unit grounds the jurisdiction of the tribal court in the
Central Council Constitution and bylaws. Those bylaws first
include the following statement of jurisdiction: " The
jurisdiction of the Tribal Court shall include all territory
described in Article 1 of the [Central Council] Constitution
and it shall be over all persons therein, and any enrolled
Tribal member citizen and their descendants wherever they are
located." [23] The bylaws further include a list of
actions subjecting individuals to tribal
jurisdiction.[24] It is under this provision, rather
than the provision for territorial jurisdiction, that Central
Council asserts jurisdiction here. In its Tribal IV-D plan,
Central Council explains that " [t]here are a number of
criteria that the Court can rely on to exert its
jurisdiction, which include sexual conduct which results in
the paternity of a [Central
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Council] child and the corresponding obligation to provide
for the child."
Central
Council's Tribal IV-D plan for the Tribal Child Support
Unit also describes the guidelines the tribal court uses to
set child support obligations. The guidelines enact a
percentage-based formula that establishes the amount of an
obligor's child support obligation based on adjusted
income and number of children. The guidelines also foresee
certain deviations for low-income obligors, for in-kind
support, and for other causes.
Since
the Tribal Child Support Unit began its operations in 2007,
Central Council's tribal courts have heard and decided
more than 100 child support cases. In each case the child was
a member of the Tribe, eligible for membership, or part of a
family that had received Temporary Assistance to Needy
Families benefits from Central Council, resulting in
assignment of the right to child support to the Tribe.
Central Council's courts have enforced child support
obligations over the jurisdictional objections of obligor
parents who are neither members of the Tribe nor eligible for
membership.
The
Tribal Child Support Unit has worked with its state
counterpart, CSSD, since 2007. CSSD has referred more than
700 existing child support cases to the Unit for enforcement.
CSSD has also enforced cases that the Unit referred to it, so
long as the original child support order was issued by a
state court rather than an Alaska tribal court. CSSD has not
enforced any child support orders that Central Council's
tribal courts originally issued. Only a state can garnish IRS
tax refunds of obligor parents, and the Unit has coordinated
with the State of Washington to do so. But certain other
enforcement mechanisms, including garnishing an obligor
parent's Alaska unemployment insurance benefits or
Permanent Fund Dividend, require CSSD's cooperation and
thus have been unavailable for enforcement of any child
support orders issued by Central Council's tribal courts.
C.
Proceedings Below
In
January 2010 Central Council filed a complaint against the
State seeking a declaration that it possesses inherent
jurisdiction to decide child support cases for member and
member-eligible children and an injunction directing the
State to enforce child support orders issued by its tribal
courts. Both parties moved for summary judgment.
The
superior court granted summary judgment for the Tribe. The
superior court determined that " the issues of child
custody and child support are closely intertwined." It
grounded this connection between custody and support in two
sources of Alaska law: first, McCaffery v. Green, a
1997 case in which we held that an Alaska trial court with
jurisdiction to modify an out-of-state custody order also had
jurisdiction to modify support obligations; [25] and
second, the provisions of Alaska Civil Rule 90.3, which the
superior court interpreted to " require [a trial] court
to consider child support any time it makes a custody
decision." The superior court also noted that rejecting
Central Council's assertion of jurisdiction to set child
support orders " would provide a substantial deterrent
for parents to bring custody disputes to tribal courts, since
tribal courts could not decide all of the issues in the
case."
In
light of the connection between child custody and child
support, and relying on our holding in John v. Baker
(John I ) that Alaska tribes have inherent sovereign
jurisdiction to adjudicate child custody
matters,[26] the superior court ruled that
Central Council's jurisdiction extended to child support
adjudication as well:
The determination and enforcement of the duty of parents to
support a child who happens to be a tribal member is no less
a part of the tribe's internal domestic relations than
the decision as to which parent the child will live with,
which school the child will attend, or any of the other
important decisions that custody courts make every day.
Ensuring that tribal children are supported by their
noncustodial parents may be the same thing as ensuring that
those children are fed, clothed, and
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sheltered. The future of a tribe -- like that of any society
-- requires no less.
The
superior court entered an order " declaring that the
Tribe's inherent rights of self-governance include
subject matter jurisdiction to adjudicate child support for
children who are members of the Tribe or eligible for Tribal
membership." The order also required the State to treat
Central Council's tribal courts and the Tribal Child
Support Unit as it would any other state's courts and
child support enforcement agency under UIFSA and the
regulations connected to Title IV-D.
The
superior court's order on summary judgment noted that
Central Council's action for a declaratory judgment and
injunctive relief did " not require the [superior] court
to decide the issue of personal jurisdiction, which must be
decided on a case by case basis." In some cases, the
superior court speculated, " the exercise of
jurisdiction by the tribal court may well violate due
process." Ultimately, both parties agreed " that
the [superior] court should leave questions of personal
jurisdiction for decision in future cases."
The
State appeals.
III.
STANDARD OF REVIEW
We
review the scope of tribal jurisdiction de
novo.[27] We also " review a grant of
summary judgment de novo, applying our independent
judgment." [28] " Under de novo review, we
apply 'the rule of law that is most persuasive in light
of precedent, reason, and policy.'" [29]
IV.
DISCUSSION
UIFSA
requires that Alaska courts register and CSSD enforce child
support orders issued by the tribunal of " an Indian
nation or tribe." [30] Central Council does not argue
that either Title IV-D of the Social Security Act or UIFSA is
the source of its tribunals' authority to decide child
support matters. Instead, the legal question presented in
this appeal is whether Central Council's tribal courts
have inherent sovereign authority to exercise subject matter
jurisdiction over child support matters and thus are "
authorized tribunals" for purposes of UIFSA.
A.
Subject Matter Jurisdiction Derived From Inherent,
Non-Territorial Sovereignty Has Two
Dimensions.
The
jurisdictional reach of tribal courts is a question of
federal law.[31] As the United States Supreme Court
has long recognized, " Indian tribes are unique
aggregations possessing attributes of sovereignty over both
their members and their territory." [32] In most
states there is a " traditional reservation-based
structure of tribal life," [33] and many tribes
consequently look to both tribal membership and tribal land
as their sources of sovereignty and tribal court
jurisdiction.[34] But a 1971 federal law known as the
Alaska Native Claims Settlement Act
Page 262
(ANCSA) extinguished all Native claims to land in Alaska and
revoked all but one Indian reservation in the
state.[35] The United States Supreme Court has
held that the former reservation lands ANCSA transferred to
Native-owned, state-chartered regional and village
corporations in exchange for extinguishing those claims are
not " Indian country" under the federal statute
that defines the term.[36] As a result of this history, we
have had to examine the inherent, non-territorial sovereignty
of Indian tribes, a question of federal law that other "
courts have not had occasion to tease apart."
[37]
Our
decisions analyzing the inherent, non-territorial subject
matter jurisdiction of Alaska tribal courts have implicitly
recognized two separate dimensions of this jurisdiction. Both
dimensions reflect our understanding that inherent,
non-territorial subject matter jurisdiction derives from
" a tribe's ability to retain fundamental powers of
self-governance." [38] The first dimension of this
jurisdiction relates to the character of the legal question
that the tribal court seeks to decide, while the second
relates to the categories of individuals and families who
might properly be brought before the tribal court.
Although
our earlier decisions have not always clarified that
inherent, non-territorial subject matter jurisdiction has the
two dimensions we now expressly recognize, they have
addressed both the character of the legal questions that
tribal courts have adjudicative authority to decide and the
populations subject to that authority. In doing so, our
decisions have aligned with the definition of subject matter
jurisdiction advanced by a leading treatise on Indian law:
" the ability of a court to hear a particular kind of
case, either because it involves a particular subject matter
or because it is brought by a particular type of plaintiff or
against a particular type of defendant." [39]
Our
foundational decision for the analysis of tribal courts'
exercise of subject matter jurisdiction on the basis of
inherent, non-territorial sovereignty is John
I.[40] That case arose when a father who
was a member of Northway Village filed a custody petition in
the Northway tribal court and then, after the tribal court
issued its custody order, filed an identical suit in state
superior court.[41] Although the children's mother
was not a member of Northway Village she " consented to
Northway's jurisdiction" during the first suit and
then moved to dismiss the superior court suit on the basis of
the tribal court's order.[42]
In
John I we examined the first dimension of tribal
courts' inherent, non-territorial subject matter
jurisdiction: the character of the legal question at issue.
We surveyed federal decisions and recognized that " in
determining whether tribes retain their sovereign powers, the
United States Supreme Court looks to the character of the
power that the tribe seeks to exercise, not merely the
location of events." [43] We focused our
analysis on whether adjudicating child custody matters -- the
power that the Northway Village tribal court sought to
exercise in John I -- was the type of legal question
that falls within tribal courts' membership-based subject
matter jurisdiction. We characterized child custody as an
" internal domestic matter[]" [44] that " lies
at the core of sovereignty." [45] Based on our analysis
of the rights at
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issue, we held " that the type of dispute before us
today -- an action for determination of custody of the
children of a member of Northway Village -- falls squarely
within Northway's sovereign power to regulate the
internal affairs of its members." [46]
We next
turned to the second dimension of inherent, non-territorial
subject matter jurisdiction: the categories of litigants
whose disputes the tribal courts have authority to decide. We
noted that " [b]ecause the tribe only has subject matter
jurisdiction over the internal disputes of tribal members, it
has the authority to determine custody only of children who
are members or eligible for membership." [47] We
explicitly recognized that the mother in John I was
" not a member of Northway Village," but our remand
order only directed the superior court to determine the
children's eligibility for tribal
membership.[48]
A later
case more distinctly separated the two dimensions of
inherent, non-territorial sovereignty by deciding only one of
the dimensions and explicitly declining to reach the other.
In State v. Native Village of Tanana a tribe sought
declaratory and injunctive relief related to its sovereign
authority to initiate child custody proceedings as the Indian
Child Welfare Act (ICWA)[49] defines the term.[50] After
analyzing our own cases, precedent from federal courts, and
congressional actions, we concluded that tribes do have
inherent sovereign jurisdiction and authority to initiate
ICWA-defined child custody proceedings.[51]
Although
we recognized this jurisdiction, we concluded that the record
developed at trial did not contain " sufficient facts to
make determinations about specific limitations on inherent
tribal jurisdiction over ICWA-defined child custody
proceedings." [52] The reach of the jurisdiction would
depend on, among other things, " the proper exercise of
subject matter and personal jurisdiction."
[53] Among the " many issues"
left explicitly undecided were " the extent of tribal
jurisdiction over non-member parents of Indian children"
and " the extent of tribal jurisdiction over Indian
children or member parents who have limited or no contact
with the tribe." [54]
Thus,
our decision in Tanana analyzed the first dimension
of the subject matter inquiry but not the second. By
acknowledging that questions of subject matter jurisdiction
remained unanswered even after holding that " tribes are
not necessarily precluded from exercising inherent sovereign
jurisdiction to initiate 'child custody proceedings'
as ICWA defines that term," [55] we recognized that
there are more facets of subject matter jurisdiction than
just the character of the legal question at issue. The
categorical analysis of " the extent of tribal court
jurisdiction over non-member parents of Indian children"
was not necessarily reserved for a case-by-case
determination, but it could not be decided on the record on
appeal in that case.[56] A complete description of the
inherent, non-territorial subject matter jurisdiction of
tribal courts consists of both the types of legal questions
those courts can properly hear and the categories of parties
whose legal disputes those courts can properly resolve.
B.
Adjudicating Child Support Is Within Tribal Courts'
Inherent, Non-Territorial Subject Matter
Jurisdiction.
The
superior court concluded that " [t]he determination and
enforcement of the duty of parents to support a child"
is an integral " part of the tribe's internal
domestic
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relations," and is thus within Central Council's
courts' inherent, non-territorial subject matter
jurisdiction.[57] We agree, and we hold that the
adjudication of child support obligations is a component of a
tribe's inherent power " to regulate domestic
relations among members." [58]
We have
held that tribes' powers of internal self-governance
include the power to determine the custody of children of
divorcing parents,[59] the power to accept transfer
jurisdiction of ICWA-defined custody cases from state
courts,[60] and the power to initiate child
protection cases.[61] In each of the cases in which we
have recognized these powers, we discussed a federal statute
-- ICWA[62] -- which is not directly applicable
to the question of child support now before us. Even in
John I, an inter-parental custody dispute to which
ICWA did not strictly apply,[63] we examined the
statute as relevant evidence of Congress's
intent.[64]
The
United States Supreme Court has described ICWA as a reaction
to " abusive child welfare practices that resulted in
the separation of large numbers of Indian children from their
families and tribes through adoption or foster care
placement, usually in non-Indian homes." [65] Congress
elected to address these practices by limiting state court
jurisdiction and recognizing tribal court jurisdiction over
ICWA-defined child custody matters.[66] Although the
statute has provisions that establish the substantive law
state courts are to apply -- for example, a preference order
for adoptive placements[67] -- its primary means to enforce
its provisions is an allocation of jurisdiction in
ICWA-defined custody cases.
Congress
has not suggested that similar practices exist or need to be
addressed in the realm of child support. Although Congress
gave the Secretary of the Department of Health and Human
Services the authority to reimburse tribes for child support
enforcement costs in 1996,[68] Title IV-D of the
Social Security Act is a funding statute that does not
purport to expand or otherwise alter its
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recipients' jurisdiction. Central Council's briefing
before the superior court asserted that its jurisdiction to
adjudicate child support is not tied to Title IV-D or to any
other act of Congress.
Although
ICWA was relevant to our earlier decisions on the subject
matter jurisdiction of tribal courts, we have never suggested
that it was the sole or even primary basis of that
jurisdiction. Doing so would be inconsistent with the United
States Supreme Court's pre-ICWA recognition of tribal
court jurisdiction over custody matters.[69] Instead, in
John I, our examination of ICWA was in service of
the point that an earlier statute, ANCSA, was not intended to
" eradicate tribal court jurisdiction over family law
matters." [70] We " follow federal law by
beginning from the premise that tribal sovereignty with
respect to issues of tribal self-governance exists unless
divested." [71]
At
issue in both John I and this case is the
inherent power of tribes " to conduct internal
self-governance functions." [72] Although child support
is not governed by ICWA, as some child custody matters are,
it is equally " a family law matter integral to tribal
self-governance," [73] and as such is part of the set of
core sovereign powers that tribes retain.[74] Moreover,
" Congress's express finding in ICWA that 'there
is no resource that is more vital to the continued existence
and integrity of Indian tribes than their children'"
[75] is relevant to both child support
and custody.
Child
support orders are a pillar of domestic relations and are
directly related to the well-being of the next generation. As
the superior court explained, " [e]nsuring that tribal
children are supported by their noncustodial parents may be
the same thing as ensuring that those children are fed,
clothed, and sheltered. The future of a tribe -- like that of
any society -- requires no less." " [A] tribe has a
strong interest in 'preserving and protecting the Indian
family as the wellspring of its own future,'"
[76] and determining what resources a
child will enjoy from her parents is a crucial aspect of
promoting that interest. As the United States Court of
Appeals for the Ninth Circuit has recognized, parental
financial neglect of children " is a matter of vital
importance to the community." [77]
Recognizing
tribal courts' inherent, non-territorial subject matter
jurisdiction over child support matters is consistent with
our description of tribal power. Although our cases
recognizing specific instances of that power have largely
related to child custody, they are situated within the larger
context of family affairs. In John I we recognized
" the fundamental powers of tribes to adjudicate
internal family law affairs like child custody
disputes." [78] In Tanana we described
John I as " foundational Alaska authority
regarding Alaska Native tribal jurisdiction over the welfare
of Indian children." [79] And in Simmonds v.
Parks we reiterated that John I recognized
" tribal sovereignty to decide cases involving the best
interests of tribal children." [80] When child
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support is ordered it is fundamental to its recipients'
welfare and best interests and thus is " of vital and
fundamental importance to tribal self-governance."
[81]
The
subsequent history of the John v. Baker litigation
also weighs in favor of Central Council's assertion of
subject matter jurisdiction over child support orders. In
John III we considered the argument that our
decision in John I implicitly recognized tribal
court subject matter jurisdiction over not just child custody
matters but also child support matters.[82] The posture of
the case made it unnecessary for us to decide whether the
tribal court in fact had the necessary jurisdiction to issue
child support orders.[83] But we did discuss what qualities
a tribal child support order would require to be " a
recognizable child support order to which the [superior]
court could extend comity." [84] Had the tribal court
lacked subject matter jurisdiction to issue a child support
order, this discussion of the proper contours of comity would
have conflicted with our statement in John I 's
comity analysis that " our courts should refrain from
enforcing tribal court judgments if the tribal court lacked
personal or subject matter jurisdiction." [85]
The
actions of the federal executive branch also suggest that
Central Council's tribal courts have inherent,
non-territorial subject matter jurisdiction over child
support matters. The part of Title IV-D that makes Tribal
IV-D programs like Central Council's eligible for federal
reimbursement requires each applicant program to "
demonstrate[] to the satisfaction of the Secretary [of the
Department of Health and Human Services] that it has the
capacity to operate a child support enforcement program
meeting the objectives of this part, including . . .
establishment, modification, and enforcement of support
orders." [86] Similarly, the regulations enacted
to govern Tribal IV-D eligibility require that all applicant
programs include " a description of the population
subject to the jurisdiction of the Tribal court or
administrative agency for child support enforcement
purposes." [87] Central Council's application
identified its tribal court jurisdiction over child support
matters as stemming from the tribal code and constitutional
provisions that allow jurisdiction based on certain acts of
affiliation with the Tribe, rather than asserting a
territorial basis for jurisdiction. By accepting Central
Council's application to make the Tribal Child Support
Unit a Tribal IV-D program, the Secretary of the Department
of Health and Human Services confirmed that this assertion of
non-territorial jurisdiction over child support matters
complies with the federal statutory and regulatory
requirements for Tribal IV-D programs.
The
State argues that the near certainty that state agencies will
be involved with the enforcement of child support orders
issued by tribal courts distinguishes this case from our
previous decisions regarding child custody. The State
maintains that requiring its state child support program,
CSSD, to coordinate with many tribal courts will impose
additional costs and disrupt the uniformity of child support
awards.[88] In particular, the
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State points to the potential difficulty of modifying a
tribal support order, which might prevent the State from
recouping funds it spends on children in its custody who are
subject to a tribal order.[89]
But
these concerns do not limit the exercise of tribal court
jurisdiction. Our decisions exploring the retained inherent
self-governance powers of Alaska tribes contain no suggestion
that the burden on state agencies associated with recognizing
tribal authority is part of the analysis. The State's
reliance on the United States Supreme Court's discussion
of " considerable" state interests in Nevada v.
Hicks [90] is inapposite. That case concerned
" tribal authority to regulate state officers in
executing process related to the violation, off reservation,
of state laws." [91] The Supreme Court explicitly held
that such authority " is not essential to tribal
self-government or internal relations -- to 'the right to
make laws and be ruled by them.'" [92] This
holding did not depend on the extent of the state's
interest, but instead flowed from the Court's exploration
of " what is necessary to protect tribal self-government
and control internal relations." [93]
State
agencies are also involved in enforcing child custody orders,
and non compliance with these orders can expose parents to
criminal contempt charges and imprisonment.[94] And there
is little doubt that child support enforcement frequently
requires more routine and sustained contacts between a state
enforcement agency and a noncustodial parent. But this does
not make child support any less focused on " [t]he
welfare of tribal children." [95] In both child custody
and child support matters, the instruments of state
government are employed as a means of enforcing duties that
run between parents and children; their involvement does not
transform the power at issue into one that is no longer
concerned with internal domestic relations.
Ensuring
that parents financially care for their children is a pillar
of domestic relations and is directly related to the
well-being of the next generation. Setting, modifying, and
enforcing such obligations is one way that " [t]ribal
courts play a vital role in tribal self-government."
[96] We hold that tribal courts have
inherent, non-territorial subject matter jurisdiction to
adjudicate parents' child support obligations.
C.
Tribal Courts' Inherent, Non-Territorial Subject Matter
Jurisdiction Over Child Support Reaches Nonmember Parents Of
Children Who Are Tribal Members Or. Are Eligible For
Membership.
In the
State's briefing before the superior court it argued that
jurisdiction over nonmembers is an issue of subject matter
jurisdiction, not merely personal jurisdiction. In its
briefing before this court and at oral argument the State
urged us to address Central
Page 268
Council's subject matter jurisdiction over nonmembers. As
discussed supra in Part IV.A, we agree that
identifying the individuals and families who might properly
be brought before a tribal court is a question of subject
matter jurisdiction.[97] We also agree with the State that
the issue is ripe for a decision, as the Tribe's
complaint here asserted jurisdiction over all cases where the
child is a member or is eligible for
membership.[98] As the State noted at oral argument,
that set of cases " necessarily includes" cases in
which the child is a member or is membership-eligible but one
parent is not. And the issue is far from being an abstract
question: Central Council's tribal courts have already
decided child support cases over the jurisdictional
objections of obligor parents who are neither members of the
Tribe nor eligible for tribal membership.[99] Finally,
as reflected in the parties' statements at oral argument,
guidance from this court can resolve this long-standing
question and allow the parties to move forward together in
enforcing child support orders for the benefit of the
Tribe's and the State's children.
1.
Because child support jurisdiction is tied to a tribe's
inherent sovereignty, Montana v. United
States does not apply.
The
State argues that the United States Supreme Court's
decision in Montana v. United States [100]
permits a tribe to regulate a nonmember only if the nonmember
enters into a consensual business relationship with the tribe
or its members or if the nonmember's conduct on land the
tribe owns within a reservation imperils the very existence
of the tribal community. The State contends that child
support adjudication does not fit within either of these
circumstances, and thus that Central Council cannot exercise
subject matter jurisdiction over nonmember parents in child
support cases.
We
considered a similar argument in Simmonds v.
Parks.[101] That case arose out of a tribal
court order terminating the parental rights of a
nonmember.[102] Rather than appeal the decision
within the tribal court system, the nonmember father sought
to regain custody of his daughter in state
court.[103] We adopted the federal exhaustion
of tribal remedies doctrine and held that parties are not
permitted to collaterally attack tribal court judgments
unless they have exhausted all available appellate tribal
court remedies or satisfy one of the recognized exceptions to
the doctrine.[104]
In
Simmonds the State intervened and argued that
exhaustion was not required because the tribal court plainly
lacked jurisdiction over nonmember parents of tribal
children.[105] The State's argument relied
heavily on its understanding that Montana and a
subsequent decision by the United States Supreme Court,
Strate v. A-1 Contractors,[106] jointly
created a presumption that tribal
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courts lacked jurisdiction in circumstances like the one then
at issue.[107]
We
rejected the State's argument and instead held that
" tribal jurisdiction [over nonmember parents in
parental rights termination proceedings] is, at the very
least, colorable and plausible." [108] We carefully
examined the federal cases that the State contended created a
presumption against jurisdiction and determined that those
decisions were significantly more limited in scope than the
State had acknowledged. " The United States Supreme
Court has repeatedly and explicitly emphasized the
context-bound nature of each of its rulings on tribal court
civil jurisdiction, looking to various indices of
congressional and executive action and intent in enlarging or
diminishing retained inherent tribal sovereignty."
[109] The question of tribal court
jurisdiction over parental rights termination proceedings
significantly differed from the land management issues at
play in Montana ; no decision from any court had
held that Montana prevented a tribal court from
properly deciding a child custody proceeding involving
nonmembers.[110] Given the readily apparent
distinctions between the legal authority exercised by the
tribal court in Simmonds and that at issue in
Montana and other cases, we concluded that the
tribal court's claim to jurisdiction was both colorable
and plausible, and therefore that the nonmember had not been
excused from the requirement that he exhaust tribal appellate
remedies before launching a collateral attack in state
court.[111]
In
Simmonds we were only charged with determining
whether the tribal court's claim to jurisdiction over a
nonmember parent on the basis of a child's membership or
eligibility for membership was colorable or
plausible.[112] This case, in contrast, requires
that we decide whether tribal courts' inherent,
non-territorial subject matter jurisdiction does in fact
extend to the adjudication of the child support rights and
obligations of nonmember parents of children who are members
or eligible for membership. We hold that because tribes'
inherent authority over child support stems from their power
over family law matters concerning the welfare of Indian
children -- an area of law that is integral to tribal
self-governance -- the basis and limits of that authority are
tied to the child rather than the parent.
In this
appeal, the State once again argues that Montana
dictates the outcome in this case and precludes subject
matter jurisdiction over nonmember parents. Montana
is a case about the power of a tribe to regulate "
hunting and fishing by nonmembers of a tribe on lands no
longer owned by the tribe." [113] The Supreme Court
held that such regulation could not be sustained " as an
incident of the inherent sovereignty of the Tribe over the
entire Crow Reservation." [114] The Court announced
" the general proposition that the inherent sovereign
powers of an Indian tribe do not extend to the activities of
nonmembers of the tribe," [115] and then identified
what have come to be known as " the Montana
exceptions" [116] to this proposition:
A tribe may regulate, through taxation, licensing, or other
means, the activities of nonmembers who enter consensual
relationships with the tribe or its members, through
commercial dealing, ...