Important Court Cases

OPINION: Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013)

Baby Veronica was born in Oklahoma to a non-Native mother and Native American father.  The parents had split up during the pregnancy, and without the father’s knowledge the mother found non-Native adoptive parents through an agency.  The adoptive parents were present at Veronica’s birth, and took the baby home with them to South Carolina.  When Veronica was four months old, the adoptive parents filed an adoption case in South Carolina.  The father contested the adoption and asked for custody of Veronica.  Two years later—due to court delays—the state judge held that ICWA (Indian Child Welfare Act) prohibited the termination of the father’s rights and awarded the father custody of Veronica.  The adoptive couple appealed all the way to the U.S. Supreme Court.  The Supreme Court decided that the three following sections of ICWA did not apply to this private adoption case:

 – In private adoption cases—not Child in Need of Aid (CINA) cases—ICWA’s placement preferences do not apply if there are not competing petitions to adopt a Native child.  In Veronica’s case, since only the adoptive parents asked to adopt, that placement was the only option the Court could consider, so ICWA’s placement preferences did not apply.

– Normally, “active efforts” must be provided to prevent the breakup of a Native family, before the court can terminate a parent’s rights.  The Court decided that there is an exception to this rule for a father who has abandoned his child before birth and has never had physical or legal custody of his child at any time.

– Before a court can terminate the parental rights of a Native parent, it must find that the “continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child.”  The Supreme Court held that this section does not apply in situations where a father has never had physical or legal custody of his child.

OPINION: Bill S. v. State, 436 P.3d 976 (Alaska 2019)

In Bill S., the Alaska Supreme Court determined that OCS had failed to prove that the Department had made active efforts to prevent the breakup of the Indian family because the caseworker’s testimony was too vague and the efforts were not documented. The Department had offered testimony from the caseworker that OCS contracted with the Tribe to provide efforts, but could not provide specific information about any services or supports actually offered or delivered to the parents to aid in reunification. The court suggested that the Department could have provided testimony from the tribal worker on what efforts the Tribe and the tribal worker had made to assist the family. This case confirmed that OCS must not simply provide a list of services to a parent, or delegate services, but must ensure that services toward reunification are provided, and must document those efforts before they can terminate parental rights.

OPINION: Clark J. v. State, S17797 (Alaska 2021)

In Clark J., the Alaska Supreme Court decided that OCS did not make active efforts to reunify the father with his children. The children were in custody for four years. During the first two years the father did not work with OCS or keep in contact with his children, and agreed to a guardianship with a relative. For the next two years, the father took steps to live a healthy life and have a relationship with his children. In spite of his progress, OCS asked the court to terminate his rights, and the Superior Court did so. The Supreme Court undid the termination of parental rights because OCS did not provide active efforts to help the father. Specifically, the Court was concerned that OCS had not discussed the father’s case plan with him for the first three years of the case, failed to meaningfully contact him in jail (mailing only one letter that he does not remember receiving), failed to contact him for over a year and a half (he reestablished contact with OCS), and failed to set him up for classes, services, or visits with his children.  

OPINION: Mona J. v. Alaska Health and Social Services (S-18049)

In Mona J., the Alaska Supreme Court found that the Office of Children’s Services’ (OCS) active efforts do not depend on a parent’s cooperation. Rather, courts may consider a parent’s cooperation or lack thereof in deciding whether OCS has met its burden, but should depend primarily on OCS’s efforts and its adjustments in response to noncooperation. In this case, the superior court relied too heavily on the mother’s noncooperation in deciding that OCS did all that it could for active efforts. The Alaska Supreme Court determined that a parent’s unwillingness to cooperate impacts an analysis of active efforts in only three instances: (1) it can excuse further active efforts if they would be futile; (2) it can excuse minor failures by OCS; and (3) it can help establish what actions constitute active efforts. (That last factor means the particular way a parent chooses not to cooperate is relevant in deciding whether OCS properly responds. For example, the mother in this case required OCS to speak only with her attorney, and OCS accommodated).

This case clarified that OCS must adjust its efforts in response to a parent’s noncooperation rather than persisting in the same actions it would have taken for a cooperative parent. Although the Supreme Court disagreed with the superior court’s analysis, it still found OCS engaged in active efforts to reunite the mother with her children. Despite the mother’s reluctance to complete her case plans, OCS persisted in its efforts by continuing to provide her with services, visitations with her children, and accommodations per her requests. The Alaska Supreme Court held that OCS adequately adjusted its efforts in response to the mother’s noncooperation; thus it made sufficiently active efforts to reunite the mother with her children.

OPINION: Ted W. v. State, 204 P.3d 333 (Alaska 2009)

In this case, Father’s rights had been terminated by the state court. After his rights were terminated, Mother, whose rights had not been terminated, allowed Father to have extensive visitation with the child.  This went on for several years.  One day, when Father went to return the child to the Mother, he found out that all of her children had been taken into the State’s custody. The Father said that shortly before this happened that Mother asked him to take care of the child because “she didn’t want the state involved with [the child’s] life.” The child continued to live with Father on a full-time basis for several months until OCS removed the child from Father’s care and filed a Child in Need of Aid (“CINA”) case. (Father had a lengthy criminal history and was a known sex offender. The State therefore did not feel the child was safe in his care.) Mother, Father and the child were all members of or eligible for membership in an Alaska Native tribe.

Father argued that he should be a party to the new Child in Need of Aid case because he was an “Indian Custodian” as defined by ICWA. ICWA defines an Indian Custodian as “an Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.”   At first, Mother and the State agreed that the Father was the child’s Indian Custodian because Mother had temporarily transferred the child to Father’s care. However, later in the CINA case, Mother and the State jointly asked the Court to terminate the Father’s status as Indian Custodian. The judge agreed to do this.

Father appealed to the Supreme Court. The Supreme Court agreed with the trial court.  It said that Father no longer met the definition of Indian Custodian because: the basis for Father’s status as an Indian custodian was Mother’s temporary transfer of the child to his care, Mother possessed the authority to revoke the transfer at any time before the State took custody of the child, and Mother and the State acted jointly to rescind the earlier transfer.

Bottom line:  A parent can rescind a transfer of custody to an Indian Custodian even after the State has taken custody of a child.

OPINION: Native Village of Tununak v. State of Alaska Office of Children’s Services, 303 P.3d 431 (Alaska 2013)

In this state court Child In Need of Aid (CINA) case, the Office of Children’s Services (OCS) removed a Native child from her family because of concerns about her mother’s mental health and substance abuse issues. Although the child’s maternal grandmother (a first-tier preference placement under ICWA, which was designed to stop the removal of Native children from their communities and families) requested placement of the child in Tununak, OCS placed the child in a non-Native, non-relative foster home in Anchorage.  The Native Village of Tununak intervened in the case, requested that OCS look into several ICWA-compliant placements, and specifically requested that the child be placed with her maternal grandmother.  OCS refused.  

Over the next three years, the child’s maternal grandmother and Tribe repeatedly requested that the child be placed with her grandmother in the village.  OCS generally ignored these requests, or gave reasons to reject the grandmother as a placement such as: her adult son living in the home had a DUI conviction, the child’s bond with her mother would be best maintained if she stayed in Anchorage, or the grandmother’s home had unresolved safety concerns, like excessive clutter.

After the child’s parents’ rights were terminated, the Tribe requested a placement review to challenge OCS’s refusal to place the child with her maternal grandmother.  At the trial, the Tribe argued that placing the child in a non-Native, non-relative home, instead of with her grandmother, violated ICWA.  OCS argued that there was good cause to deviate from ICWA’s placement preferences for a number of reasons, including that the child had bonded with her foster family.  The trial court ruled that there was good cause to deviate from ICWA’s placement preferences because the grandmother, despite being fit and healthy, was too old to care for a young child, and the child would be traumatized by a move. The Tribe appealed.

The Alaska Supreme Court reversed, and remanded (sent back) the case to the trial court for further proceedings.  The Court held that good cause to deviate from ICWA’s placement preferences must be shown by clear and convincing evidence, and that the trial court had erred by applying the lower preponderance of the evidence standard. The Court also clarified that when determining if good cause exists to deviate from ICWA’s placement preferences, a trial court must first evaluate whether there are any suitable ICWA-compliant placements available.  In determining whether an ICWA-compliant placement is suitable, the trial court must apply the prevailing values of the Native community, not “white, middle-class standards.”  The Court pointed out that the trial court had concluded that the grandmother was too old to care for the child despite evidence that it was common in her community for grandparents to care for young children.

The re-trial in this case is currently on hold.  While this appeal was pending, the foster family that had been caring for the child adopted her, over the Tribe’s objection.  The Tribe has appealed the adoption (click here for more information), but the foster family and OCS are arguing that because the child has been adopted, the placement issue in her CINA case is moot.

Bottom line: When determining good cause to deviate from ICWA’s placement preferences, a court must first examine whether there are any suitable ICWA-compliant placements available (using prevailing values of the Native community).

OPINION: Native Village of Tununak v. State of Alaska, Office of Children’s Services and H.S. and K.S. 334 P.3d 165 (Alaska 2014)

This case interpreted the Baby Veronica case in Alaska. In this case, OCS removed a Native child from her family and placed her in a non-Native, non-relative foster home in Anchorage. Eventually, the Tribe requested that the child be placed with her maternal grandmother. The Tribe filed a placement review hearing and the non-Native, non-relative foster parents filed a petition to adopt. The Supreme Court held that ICWA’s adoptive placement preferences do not apply unless and ICWA-preferred family files a petition to adopt the child (or a suitable “proxy” for an adoption petition). The Court instructed Tribes and tribal members to file formal adoption petitions as soon as it “appears that OCS’s goal for the child is adoption”.

OPINION: In re April S., 467 P.3d 1091 (Alaska 2020)

In this case, the Alaska Supreme Court decided that a qualified expert witness under ICWA does not need to have knowledge of the child’s tribal culture, if the child’s tribal culture is not relevant to the grounds the court is relying on to make its decision.

This case involved a 17-year-old Indian child from the Native Village of Kotzebue. She had spent time in a secured residential treatment facility in Utah, and showed suicidal tendencies. The Office of Children’s Services brought forward an expert witness from the Utah treatment facility who had no cultural knowledge regarding the Child: no knowledge of the child’s Tribe, Inupiat culture, and had never worked in Alaska. The trial court found this was a qualified expert witness.

The Alaska Supreme Court agreed. Despite the witness’s lack of tribal cultural expertise, the Court found that the grounds for termination in that case – suicidal tendencies in the child – did not involve tribal culture.

Tribal cultural expertise is still required for a qualified expert witness if the grounds for termination involves cultural considerations, but some grounds for termination may not have those considerations, and in those cases no tribal cultural expertise is required.

However, two Justice concurred in this decision. They agreed with the overall decision to accept the qualified expert witness, but emphasized that this is a limited exception. Courts should be committed to only admitting culturally informed testimony.

OPINION: Oliver N. v. State, 444 P.3d 171 (Alaska 2019)

OPINION: Eva H. v. State, 436 P.3d 1050 (Alaska 2019)

These two decisions were the first in Alaska to consider the Qualified Expert Witness (QEW) provisions in the 2016 ICWA regulations.  The Court in these cases emphasizes the high bar the state must meet in offering a qualified expert witness.  According to the decision, a QEW has to be able to connect the parent’s harmful behavior and the likelihood of harm to the children. 

The court recognized that the proposed experts in these cases – an experienced guardian ad litem in Eva H and a tribal leader and regional ICWA specialist for OCS in Oliver N – probably would have met QEW requirements pre-2016, but since the regulations meant to strengthen the requirement, could not be met now.  The court focused on the need for very case-specific analysis, not merely an opinion that the parents’ conduct is frowned on in the culture, or unhealthy in general.  For example, a QEW in a case involving parental substance abuse now must do more than explain the dangers of chronic drinking or drug abuse; instead they must be able to explain how that the children are likely to be damaged by it, and unable to be safe at home. Additionally, that opinion must be grounded in “formal training” in social work, psychology, counseling, or another relevant field, and “professional tools” beyond life experience or ordinary social work experience.

OPINION: Trisha D. v. State, No. S-17696, 2020 Alas. LEXIS 157 (Dec. 9, 2020)

In this termination appeal, the Alaska Supreme Court took up the question of when a case raises “cultural issues” that warrant the need for a qualified expert witness who is knowledgeable about the cultural or social norms of the child’s Tribe. The court emphasized that there should be a culturally-knowledgeable QEW in every case, with only “very narrow” exceptions.  However, the court found that this case fit within that narrow exception, as the termination was based on the mother’s extreme, untreated mental health issues, including delusions and paranoia and a history of involuntary commitment, that prevented her from being able to understand how to keep her children safe. 

Notably, the (non-tribal) QEW’s opinion in this case, that the termination raised no cultural issues, seems to have gone unchallenged by the parties and the Tribe did not participate in the appeal.  This was also a “memorandum decision,” not a reported case that can be cited as precedent.  So, while the case refers to pre-2016 decisions about substance abuse, neglect, and domestic violence cases not implicating cultural issues, the Alaska Supreme Court has not yet considered whether those cases are still good law under the 2016 regulations. Tribes may argue going forward that courts should defer to the Tribe’s opinion as to whether cultural bias plays a role in the case or not.

This was a “memorandum decision,” and so it cannot be used as binding precedent. However, the logic and arguments can still be used to persuade courts in other cases.

OPINION: State v. Zander B., 474 P.3d 1153 (Alaska 2020)

This case involved an Alaska Native child, Douglas, in OCS custody. Douglas had significant needs that required constant supervision and care. Douglas was removed from his mother’s care and his father was denied placement. He was placed with non-native foster parents.  Soon after, his grandma requested Douglas be placed with her. OCS slowly began transitioning him to her care.

The foster parents opposed Douglas moving in with his grandmother. They filed a motion to be parties in the case. The court granted the motion and denied placement with the grandmother. OCS appealed. The Supreme Court of Alaska upheld both decisions.

The Supreme Court found that foster parents can be parties in CINA cases in rare instances. If 1) they have relevant information that would not be brought by the other parties; and 2) it is in the child’s best interest. Here, due to Douglas’ high needs and the foster parents’ knowledge of those needs, the court let them be parties.  

The Supreme Court also upheld the decision to deny Douglas’ placement with his grandmother. The Court recognized that this was an extraordinary situation. However, due to Douglas’ high needs; his grandmother’s apparent lack of understanding of those needs; and OCS not considering those needs when moving Douglas, the decision was upheld.

OPINION: Ted S. v. State, No. S-17719, 2020 Alas. LEXIS 138 (Oct. 28, 2020)

Here, a father’s parental rights were terminated due to his “unavailability to parent.” He appealed. The Supreme Court of Alaska decided whether the father had remedied the conditions that placed his children in need of aid. Specifically, the father was in prison when his children entered custody but was later released from jail. After release, he moved to Washington to be closer to his family and supports. OCS argued that move, his lack of adequate housing, and unwillingness to move to Alaska made him unavailable to parent his children. The Supreme Court disagreed.  It held that he remedied the condition that placed  his children in need of aid when he was released from jail. Any unavailability was not related to his served prison term. The court further stated that if the father was unavailable for his kids that should have been considered when deciding if the father had abandoned his children.

This was a “memorandum decision,” not a reported case that can be cited as precedent. However, the logic and arguments can still be used to persuade courts in other cases.

OPINION: Native Village of Venetie v. Alaska, 944 F.2d 548 (9th Cir. 1991); Native Village of Venetie IRA Council v. State (Decision-Tribal Status), WL 730898 (D. Alaska 1994)

The “Venetie Adoption Case” was filed in 1986 by the Native Villages of Venetie and Fort Yukon–two villages that granted adoptions over tribal children and that the State of Alaska refused to issue new birth certificates. The adoptive parents and the villages brought suit to require the State to recognized tribally-granted adoptions. The 9th Circuit (a federal court) ruled that Venetie and Fort Yukon would have to prove that they were the modern-day successor to historically recognized tribal entities. However, there was now a conflict between state and federal courts which led the Department of the Interior to issue a Solicitor’s opinion (called the Sansonetti opinion), concluding that there were federally recognized tribes in Alaska with authority over tribal members. After the opinion was issued, the Department of the Interior issued its list of federally recognized tribes in Alaska in 1993.

After trial, the court found that Venetie had been federally recognized as a tribe prior to the issuance of the 1993 list, and therefore Venetie’s adoption decree was entitled to full faith and credit. Therefore, the State of Alaska was to give deference to Venetie’s adoption decree and issue new birth certificates for the adopted children.

Bottom line: This case established the authority of any federally recognized tribe in Alaska to grant adoptions of tribal children.

OPINION: John v. Baker, 928 P.2d 738 (Alaska)

John v. Baker is a landmark case about tribal jurisdiction in Alaska.  The Alaska Supreme Court recognized tribal jurisdiction over parent-versus-parent child custody disputes in the absence of Indian country.  The Alaska Supreme Court decided that Alaska Native tribes have retained their inherent sovereign authority as to matters of tribal self-government and internal domestic relations, which includes child custody. 

The Court decided that whether or not an Alaska Native tribal court had jurisdiction in a child custody case depended on whether the child involved was enrolled or eligible for enrollment with the tribe.  Either the State or the Tribe can decide custody.  If the Tribe makes the custody decision, the State may recognize it by granting it “comity,” a legal term for respectful recognition of a sister court’s orders.

OPINION: Simmonds v. Parks, 329 P.3d 995 (2014)

After numerous hearings, the Minto Tribal Court terminated the parental rights of Mr. Parks and Ms. Stearman and granted permanent custody of a child to the Simmonds.  Mr. Parks sued in state court, claiming, among other things, that the tribal court has no jurisdiction over him and that his right to due process was violated when the Minto Court–in accordance with its traditional practices and procedures–did not permit Mr. Parks’ attorney to present oral argument.  Based on these arguments, Mr. Parks claims that the tribal court termination order is not entitled to full faith and credit under ICWA.  The Simmonds argued that the termination order is entitled to full faith and credit and they moved to dismiss the state court action, but this motion was denied by the state court in November 2010.  The state court reasoned that failure to allow an attorney to present oral argument did violate Mr. Parks’ due process rights, and that he could have been successful in arguing that Tribes lack jurisdiction to terminate parental rights of non-member parents

The Alaska Supreme Court disagreed.  It applied the “Tribal Court Exhaustion Doctrine” to Mr. Parks, and decided that the state court shouldn’t consider his appeals if he failed to even try to follow the tribal court appeal process. The Court thought it plausible for the tribal court to have jurisdiction to terminate parental rights considering its vital interest in the tribal child’s safety and the fair proceedings the court used.

OPINION: State v. Native Village of Tanana, 249 P.3d 734 (2011)

This case recognizes tribal jurisdiction authority to decide Native children’s custody cases.  In 2011 the Alaska Supreme Court ruled in favor of the plaintiff tribes in the Tanana case.  The court found that the 2004 Renkes opinion (which stated that no Alaska tribes could initiate ICWA child custody proceedings unless the tribe petitioned the Secretary of the Interior first) was wrong, and that AK tribes retained inherent sovereign jurisdiction to initiate child custody proceedings.  

The Court said that 1) Alaska Tribes had not been divested of their jurisdiction to decide children’s custody cases, and 2) Alaska Tribes have concurrent jurisdiction with the State.  The Court further explained that decisions of tribal courts in these cases were due full faith and credit under ICWA—meaning the state courts have to recognize tribal court decisions. 

OPINION: In Re C.R.H., 29 P3d 849 (Alaska 2001)

The State took custody of C.R.H. when she was three days old.  Her parents were from two different Tribes.  The Tribes agreed that Nikolai would be the Tribe that would intervene as C.R.H.’s Tribe.  C.R.H. was placed with a relative in Nikolai.  Nikolai asked the State court to transfer the case into Nikolai’s tribal court.  The court denied the request because the Alaska Supreme Court had previously ruled in the case Native Village of Nenana v. State that ICWA cases could not be transferred into tribal court unless the Tribe had petitioned to reassume jurisdiction under ICWA Section 1918 (which hardly any Tribes in Alaska have done).  The Tribe appealed to the Alaska Supreme Court, and during the appeal the State asked the Court to overturn the Nenana case to allow for cases to be transferred to Tribal court without having to petition the Secretary of Interior to reassume jurisdiction.

The Supreme Court overruled the Nenana case and held that under ICWA’s section 1911, an ICWA case may be transferred into Tribal court even if the Tribe had never petitioned the Secretary of the Interior.  The Court acknowledged that the request to transfer into Tribal Court may be denied, but the party opposing the transfer bears the burden to show that good cause exists to deny the transfer.  

The Supreme Court recognized the importance of respecting Tribal courts and quoted John v. Bakersaying, “Superior courts should strive to respect the cultural differences that influence tribal jurisprudence, as well as to recognize the practical limits experienced by smaller court systems.”  This case confirmed that Tribes have the authority to accept ICWA cases transferred from state court.  

OPINION: Peidlow v. Williams, 459 P.3d 1136 (Alaska 2020)

In this case, the Alaska Supreme Court considered who had jurisdiction (or authority) over a child and custody matter. The parents opened a custody matter in state court. Then the Native Village of Barrow (NVB) started a child protection proceeding for the same child. NVB has sole jurisdiction over child protection cases involving tribal children within Utqiagvik. 

NVB began issuing orders in the Tribal case. The state court also issued orders in the custody case. The state refused to respect and listen to the Tribal Court orders. It also refused to let the Tribal Court to be involved in the state case. 

The Supreme Court decided that the superior court was wrong because it failed to follow the state procedures to give a tribal court order full faith and credit as required by ICWA. Ultimately, this case is in line with a previous decision on Tribal Court Jurisdiction which supports the Tribe having jurisdiction when properly used over a child and family in a child in need of aid case. This authority of a tribal court over a child protection case is well established in Alaska case law.

Opinion: Starr v. George 175 P.3d 50 (Alaska 2008)

The paternal grandparents of two young tribal children filed a custody petition in Alaska state court.  The maternal grandparents had previously been granted visitation with the children in state court guardianship proceedings after the children’s mother killed their father.  While the superior court custody dispute was pending, paternal grandparents obtained tribal council resolutions approving their adoption of the children.  The paternal grandparents moved to dismiss the maternal grandparents’ state court custody action based on their adoption of the children.  However, the maternal grandparents did not have prior notice of the tribal council adoption proceedings and were not given an opportunity to be heard—and so the tribal adoption proceedings violated the requirements of due process.  Therefore, the tribal council resolutions were not entitled to full faith and credit and was not recognized or enforced by the Alaska state courts.

Bottom line: A tribal court adoption decree will not be recognized by the State of Alaska if due process is violated.

Opinion: J.P. and S.P. v. State of Alaska and Sun’aq Tribe of Kodiak, S-18107

In this Published Order, the Supreme Court found that it does not have the authority to require a tribal court to return a child in need of aid (CINA) case back to state court after it has been transferred and accepted by the Tribe.

A CINA proceeding involving a minor, J.F., was transferred to the Sun’aq Tribe of Kodiak’s court. After the state court approved the transfer, and the Tribe accepted jurisdiction, J.F.’s foster parents, J.P. and S.P., asked the Alaska Supreme Court to stay the transfer pending an appeal. The Supreme Court denied the motions, but asked the parties to file briefs on issues related to whether an appeal by J.P and S.P. is moot, (meaning, there is no longer any issue in dispute).

After reviewing the briefs, the Alaska Supreme Court decided that the appeal was moot, and dismissed it, because there is no relief that the Court could grant to these foster parents. It would not look into the question of whether the transfer was proper under the Indian Child Welfare Act (ICWA), because “even if [the Court] were to rule that the superior court erred in transferring jurisdiction, we lack the authority to order the court of the Sun’aq Tribe, a separate sovereign, to transfer jurisdiction of the child’s proceeding back to state court.” 

This is especially important in light of the open questions involved in this transfer, including that J.F. was not a member or eligible for membership in the Sun’aq Tribe; this Tribe was accepting transfer at the request of the child’s Tribe, Tangirnaq Native Village. The Court refused to decide whether such a transfer is proper under ICWA because it could not require a separate sovereign nation to return a case, whatever its decision.

The Court also determined the case was moot, because the foster parents never claimed that their due process was violated, and because they had not used all the tools available to them in the Sun’aq Tribe of Kodiak’s court. 

The concurrence by Justices Winfree and Carney highlights the dangers of allowing foster parents to participate as legal parties to state court cases, as allowed in Zander B., when foster parents’ interests can be protected by other processes in state court proceedings, without allowing them to be legal parties.

OPINION: Perryville v. Tague, 2003 WL 25446105 (Nov. 19, 2003)

This case recognized the authority of Alaska Native tribes to banish members for violent and assaultive behavior.  It also authorizes state courts to enforce those orders and issue writs of assistance to law enforcement.

Shortly after this, both the Department of Public Safety (DPS) and the Department of Law (DOL) expressed some concern about the actions the court had taken in this case and the DOL informed the court that it would be advising DPS not to enforce these types of court orders in the future, due to some alleged “defects” in the procedure.

John Tague was a resident and enrolled member of the Native Village of Perryville (NVP).  He was a very violent man who continued to assault Perryville residents despite the occasional intervention of law enforcement.

In March 1999, the NVP Council passed a resolution banning Mr. Tague from Perryville.  In May of that year, Mr. Tague was sentenced in a criminal case and the assistant district attorney informed the state court and Mr. Tague of the NVP banishment resolution.  In November 2000, NVP sought an injunction from a state superior court to enforce its tribal resolution.  Notice was given by publication but Mr. Tague never responded and default was entered.  A permanent injunction was signed by the court March 10, 2001.

In January 2003, Mr. Tague boarded a plane to return to Perryville.  Also on board was an Alaska State trooper in route for other business.  When the plane landed, the Trooper was informed of the tribal resolution and the injunction and he was asked to enforce the banishment.  The Trooper contacted his superiors and was told he needed a further court order.  A day or so later, a superior court issued a writ of assistance directing a peace officer to enforce the court’s injunction.  The Trooper served the writ on Mr. Tague, who said he would leave if NVP paid for his airfare.  NVP paid and Mr. Tague left.

The Court issued an order to show cause for why the injunction should not be vacated and the state, NVP, and others were present to make their arguments.  Mr. Tague did not participate.  

The State’s position was that an Alaska Native tribe without “Indian country” has no sovereign territory and therefore no authority to banish members from a village.  It also thought the injunction directing the Troopers to enforce the banishment was a violation of the separation of powers.  Further, it argued that VAWA did not apply to this case and that Mr. Tague did not receive due process.

NVP argued that, pursuant to John v. Baker, as a federally recognized Indian tribe it has the authority and jurisdiction to regulate the internal relations of its members and the superior court is required to grant comity to tribal court orders where there was proper jurisdiction and due process.  It also argued that the Troopers are required to enforce lawful orders of the NVP court and writs issued by a superior court in the aid of tribal court orders.

The court agreed, for the most part, with NVP.  First, the court acknowledged the State’s role as an amicus, but explained that only parties to a case may seek remedies for a matter to be at issue.  The State was not a party to the case.  Here, Mr. Tague did not contest the injunction and he never sought any kind of post-judgment relief.  As such, it was appropriate to vacate the show cause order and leave the injunction in place.

Next, the court echoed the message of John v. Baker, that Alaska Native tribes have the right to regulate the internal affairs of their members.  It found that the banishment order was appropriately limited to just the Village of Perryville and it allowed Mr. Tague to petition the NVP Tribal Court for reentry.

Finally, the court held that Mr. Tague received adequate notice of the injunction and that due process was not offended.  He was given notice by publication and actual notice of the banishment during his 1999 criminal proceeding. 

OPINION: Oertwich v. Traditional Village of Togiak, 413 F. Supp. 3d 963 (D. Alaska 2019)

The Village of Togiak banished Ronald Oertwich on the grounds that he brought alcohol into the village and then returned to the village. Oertwich sued the Tribe, individuals working for the Tribe, the State of Alaska Department of Public Safety, and the City of Togiak, seeking relief from the banishment, compensatory damages, and punitive damages.

The federal court for the District of Alaska dismissed each of his claims, (except for his claim against the mayer of Togiak), based on sovereign immunity. Sovereign immunity means that a sovereign nation is protected from certain lawsuits, in order to allow it to conduct its work without being embroiled in constant litigation. The court decided that the Tribe and its officers working for the Tribe were entitled to sovereign immunity for Oertwich’s claims, and so they were dismissed.

Additionally, Oertwich claimed that the Tribe and its officials violated the Indian Civil Rights Act (ICRA) by not providing him sufficient due process. The U.S. Supreme Court has found that ICRA does not provide a private right of action against a Tribe or its officers, and therefore, the Oertwich’s complaints regarding violations of ICRA must be brought in the Tribe’s tribal court.