Tlingit and Haida Tribes win major decision in child welfare case

Youth from the Central Council of Tlingit and Haida Indian Tribes perform at a ceremony in Juneau, Alaska, on March 2, 2016. Photo from Tlingit Haida Central Council / Facebook

The Central Council of Tlingit and Haida Indian Tribes has the "inherent authority" to handle matters involving their children, the Alaska Supreme Court ruled on Friday in a closely-watched case.

Child welfare is "integral to tribal self-governance," Chief Justice Dana Fabe wrote for the majority. That means the tribe can exercise jurisdiction over all parents of Tlingit and Haida children, even if those parents are not members.

"Central Council does not claim general jurisdiction over nonmember parents, but rather asserts specific jurisdiction to adjudicate child support matters arising out of a parent’s obligations to his or her tribal child, whose membership is the basis of inherent tribal sovereignty," Fabe wrote. "The jurisdiction claimed is thus intimately tied to the identified basis of inherent tribal sovereignty."

The decision is significant because the justices determined that the U.S. Supreme Court decision in Montana v. US does not apply in this situation. Under that decision, tribes aren't able to exercise authority over non-members except under certain exceptions.

But the Alaska court went ahead and determined that child welfare matters would fall under the consensual relations exception laid out by the Supreme Court.

"When two people bring a child into being each should reasonably anticipate that they will be required to care for the child and perhaps may need to turn to a court to establish the precise rights and responsibilities associated with the resulting family relationship," Fabe wrote. "This may require litigating in a court that is tied to the child but with which the parent has more limited contacts."

The second exception would also apply because child welfare matters involve activity that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe," Fabe wrote, quoting from Montana.

"In light of federal precedent that recognizes that serious damage to territorial resources fits within the second Montana exception when a tribe’s inherent sovereignty is based on territory, the serious potential for damage to the next generation of tribal members posed by a tribe’s inability to administer parental financial support of member or member-eligible children brings the power to set nonmember parents’ child support obligations within the retained powers of membership-based inherent tribal sovereignty," the decision stated.

The ruling was unanimous although two justices wrote separately because they believe the court went too far in addressing the tribal jurisdiction issue. Otherwise, they agreed that the state must respect child support orders issued by the central council.

The case is part of a long-running dispute over the authority of tribes and their judicial systems. The appeal was heard before Gov. Bill Walker (I) and Lt. Gov. Byron Mallott (D), who is Tlingit, came on board and they have tried to reset the state's relationship with the first Alaskans.

Earlier this month, the Central Council signed an agreement to handle foster cases involving its children. Federal Title IV-E funds will now be going to the tribe instead of the state.

"This government to government agreement between the state of Alaska and the Central Council of the Tlingit and Haida Indian Tribes of Alaska recognizes that tribes are uniquely qualified to meet the needs of their families," Valerie Davidson, the Commissioner of the Department of Health and Social Services, said in a press release. Davidson is one of a number of Native appointees in the Walker-Mallott administration.

Oral arguments from the Alaska Supreme Court hearing can be viewed on 360 North. Turtle Talk has posted documents from the case, State of Alaska v. Central Council of Haida and Tlingit Indian Tribes.

Alaska Supreme Court Decision:
State of Alaska v. Central Council of Tlingit and Haida Indian Tribes (March 25, 2016)

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