Court: No charge in tribes' custody control

Supreme Court will not hear case on tribal status in custody cases

Posted: Wednesday, February 23, 2000

ANCHORAGE - The U.S. Supreme Court will not review a state court ruling giving Alaska Native tribes equal standing with the state to decide child custody disputes between tribal members.

The high court's ruling, issued without comment Tuesday, leaves intact a 3-2 Alaska Supreme Court decision from September. That ruling found the 227 federally recognized tribes in Alaska have certain self-government powers, including the power to decide child-custody disputes through tribal courts.

The state Supreme Court threw out a ruling by a Fairbanks Superior Court judge that granted sole custody of two children to their father, John Baker. The state court ruling went against an earlier ruling by the Northway tribal court giving Baker and the children's mother, Anita John, joint custody.

Writing for the majority, Alaska Supreme Court Justice Dana Fabe said all tribal powers were not extinguished by last year's pivotal Venetie decision by the U.S. Supreme Court. The Venetie case dealt with whether Natives had self-government powers over lands conveyed to them under the 1971 Alaska Native Claims Settlement Act. The high court said they do not.

The power for tribes to decide internal domestic matters is derived from other state and federal law, the state Supreme Court said. That interpretation had been supported by Native advocacy groups, including the Native American Rights Fund and the Alaska Inter-Tribal Council as well as the state and federal governments.

``It really is a major reversal in the Alaska Supreme Court, in their view of tribal powers within Alaska,'' said Heather Kendall-Miller, an attorney who filed a court brief on behalf of the Alaska Inter-Tribal Council.

A petition asking the U.S. Supreme Court to review the ruling was filed by lawyers for Baker, who contended tribes don't exist in Alaska because the Interior Department did not follow the law when it published the 1993 list of Native organizations it recognizes as tribes.

Anchorage attorney Don Mitchell, who wrote the petition for Baker, said Tuesday's announcement by the high court was unfortunate. But he said he was not surprised, particularly because the governor urged the justices to reject it.

``It is important to understand that in denying the petition the court is expressing no view on it,'' Mitchell said.

Alaska Gov. Tony Knowles urged the U.S. Supreme Court not to take up the case because it could disrupt the governor's effort to work cooperatively with Natives in the aftermath of last year's Venetie case.

Fabe's opinion ``significantly advances the prospects for more cooperative, effective, nonduplicative working relations between state and tribal courts in Alaska,'' the governor's brief said.

Knowles' relations with Native groups, became more difficult in January when state lawyers said they would appeal part of a key subsistence ruling. Leaders of the Alaska Federation of Natives vowed to defend the ruling and declared state government hostile to the group's interests.

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