August 01, 2014

Parent Had to Exhaust Appeals in Tribal Court before Proceeding to State Court

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Simmonds v. Parks, 2014 WL 3537863 (Alaska).

Tribal court had removed child based on mother’s and child’s tribal membership and residence on tribal land and later terminated father’s rights after he failed to make changes required by his case plan. Therfore, father’s appeal to state court had to be dismissed since he failed to exhaust his appellate opportunities in tribal court. 

Mother was a member of the Native Village of Minto. According to Minto law, the child was also eligible for enrollment. She had lived for several years on tribal land. 

The child came to the attention of tribal social services due to concerns about the mother’s substance abuse and domestic violence by the child’s father. The child’s older half-siblings were already in tribal custody.  While the agency was providing preventative services, the mother was due to be incarcerated. She contacted her cousin and he and his wife agreed to care for the child. The agency filed a petition and the court confirmed the placement of the children with the cousin at the emergency hearing. 

The father was not contacted until after the emergency hearing due to working in a remote location in Alaska. 

At the second hearing, a month later, the father was not present due to an illness but he requested custody through family. The tribal court found that the father’s home in Fairbanks was not suitable for an infant. The court ordered the father to find suitable housing and participate in an anger management program. It also denied custody to the paternal grandmother, but suggested she could submit to a home study through the agency. 

The case continued to be reviewed by the court. The father’s visitation was suspended after he became aggressive with a social worker. During the reviews, the father was reminded to complete anger management. 

The father retained an attorney who sent a letter to the Tanana Chiefs Conference, a regional consortium of Alaskan Native Villages, and to the Minto general counsel. The letter threatened a civil suit unless the tribal court returned the child to him. The letter also challenged the court’s jurisdiction over the father because, as the attorney put it, tribal courts in Alaska were fake courts and lacked authority.

The attorney wrote a second letter to the mother’s cousin, tribal social services, and Fairbanks police, again asserting the Minto Tribal Court lacked jurisdiction over the child and advised the parents that they could take the child from the home. The father took the child from a babysitter when the cousins were out. The cousins reported this to tribal social services and the police were contacted. The child was located and returned to the cousins.

The case went to termination. At the termination trial, the father’s attorney was permitted to be present and speak with his client, but was not allowed to address the court directly. It was disputed whether the father had prior notice of this court rule. The tribe’s chief indicated she had spoken with the father and explained the court procedures. The father disputed this. The chief also explained that the reasons for the rule were that the tribal court judges were elders not trained in the law, and the court followed a traditional nonadversarial decision-making style, which included the judges speaking directly with the parties.

The Minto Tribal Court terminated parental rights based on the father’s failure to provide a suitable home and complete anger management. 

Although the father received instructions on appealing the tribal court order, he instead brought a custody action against the foster parents in state and federal courts. The father asserted the Minto Tribal Court was not federally recognized and did not have authority to take custody of the child. 

The U.S. District Court dismissed the father’s petition because the Minto tribe was federally recognized. He appealed to the Ninth Circuit Court of Appeals which affirmed.

The cousins and tribe moved to dismiss the state superior court action based on the Minto court order arguing it should be given full faith and credit.

The superior court did not grant the motion to dismiss holding that the Minto court order could not be given full faith and credit under 25 USC § 1911(d) because it did not provide the father due process when it did not allow him to present arguments at trial. While the court did not conclude that oral arguments were required by due process, it also found the father was not given notice that he could present arguments in writing to the court. The superior court rejected the father’s argument that the tribal court lacked authority to adjudicate the case.

The cousins appealed to the Alaska Supreme Court and the state of Alaska intervened. The Alaska Supreme Court reversed the state trial court, holding the father failed to exhaust tribal appellate remedies.

First, the state argued that tribal courts should be given partial not full faith and credit because they are not similarly situated to state courts. The Alaska Supreme Court rejected this argument noting the Indian Child Welfare Act (ICWA) specifically provides for “full faith and credit…to the same extent as other states’…” 

Next the Alaska Supreme Court considered state and federal precedent and concluded the father had not exhausted tribal appellate remedies. The father and the state argued that any appeal in tribal court would be futile. The court first noted that courts have not generally accepted a futility argument except when a functioning tribal court is lacking. As to the state’s related claim that an appeal would not be meaningful, the court rejected this noting that tribal interpretations of due process should be respected. 

Next the court examined whether the father could show an exception to the exhaustion of remedies issue because the tribal court lacked jurisdiction. The standard, it stated, is that the tribal appellate court should be given the opportunity to address claims of lack of jurisdiction unless there is no plausible or colorable basis for jurisdiction. In this case, the Minto Tribal Court had at least plausible jurisdiction because the ICWA gives jurisdiction to a child’s tribe and it was confirmed that the child was a member.

Last, the court examined the state’s argument that the Minto Court lacked jurisdiction over the father as a nontribal member. The state’s reliance on court cases holding the tribe lacked jurisdiction over non-Indians in criminal law enforcement and hunting and fishing contexts was not persuasive. The analysis of tribal jurisdiction over nonmembers is context specific and the ICWA has been consistently applied to parents of children of mixed Indian and non-Indian background.