(Cite
as: 155 F.3d 1150)
United States Court of
Appeals,Ninth Circuit.
NATIVE
VILLAGE OF VENETIE IRA COUNCIL; Native Village of Fort Yukon IRA Council;
Nancy Joseph; Margaret Solomon, Plaintiffs-Appellants,
v.
STATE
OF ALASKA; John Pugh; Karen Perdue, in her official capacity as Commissioner
of Health & Social Services, Defendants-Appellees.
No.
96-35699.
Argued and Submitted July
16, 1998.
Decided
Sept. 17, 1998.
*1150
William E. Caldwell,Alaska Legal Services Corporation, Fairbanks, Alaska, for plaintiffs-appellants.
D.
Rebecca Snow, Office of Attorney General, Fairbanks, Alaska, for defendants-appellees.
Appeal
from the United States District Court for the District of
Alaska;
H.
Russel *1151
Holland, District Judge, Presiding.
D.C. No.
CV-86-00075-HRH.
Before:
FARRIS,
O'SCANNLAIN, and HAWKINS, Circuit Judges.
FARRIS,
Circuit Judge:
The
governing bodies of the Native Alaskan villages of Venetie and
Fort Yukon as well as two individual residents of those
villages won declaratory relief in district court requiring the State
of Alaska to give full faith and credit to adoption
decrees issued by the villages.
The villages now appeal the district court's denial of their
motion for attorneys' fees under 42 U.S.C. §
1988.
We reverse and remand for an award of attorney's fees.
BACKGROUND
In
November 1986, Venetie and Fort Yukon as well as two
residents of those villages filed suit against the state of
Alaska asserting claims under the Indian Child Welfare Act (25
U.S.C. §
1911(d)),
42 U.S.C. §
1983,
and the Fourteenth Amendment.
The claims arose out of the state's refusal to recognize
adoptions that were being executed and recorded by the Venetie
and Fort Yukon tribal courts.
The villages claimed that Alaska's policy violated the full faith
and credit provision of the Indian Child Welfare Act and
deprived them of their “federally
protected right of self-governance, their constitutional right to equal protection
of the laws and their substantive due process and freedom
of association rights to determine the structure of their family
units according to the customs and traditions of the Athabaskan
peoples.”
In
May 1988, the district court granted summary judgment in favor
of Alaska.
Native
Village of Venetie v. Alaska,
687 F.Supp. 1380 (D.Alaska 1988) (Venetie
I
).
Without ever addressing the villages' constitutional claims, the district court
concluded that the Venetie and Fort Yukon courts had not
followed necessary procedures under the ICWA. Id.
at 1396-97.
The Ninth Circuit affirmed the dismissal of the tribes' claims
to the extent that they had sought money damages but
reversed the claims seeking prospective injunctive or declaratory relief.
Native
Village of Venetie v. Alaska,
944 F.2d 548 (9th Cir.1991) (Venetie
II
).
The court implied a private right or action from §
1911(d)
of the ICWA and concluded that both the villages and
their individual residents could sue to enforce the ICWA's full
faith and credit provisions.
Id.
at 552-54.
On the merits, the Ninth Circuit held that Alaska would
be required to give full faith and credit to Venetie's
and Fort Yukon's adoption decrees if those villages could be
considered the equivalent of sovereign native tribes.
Id.
at 558-59.
The case was remanded for a determination of the tribal
status of the native villages.
Because the district court had not reached any of the
plaintiffs' constitutional claims, the Ninth Circuit did not reach the
merits of those claims.
Id.
at 554.
After
a five day trial, the district court concluded on remand
that the native village of Venetie met the legal test
for sovereign tribes.
Native
Village of Venetie v. Alaska,
Nos. F86-0075 & F87-0051, 1994 WL 730893, at *21 (D.Alaska
Dec. 23, 1994).
The court further concluded that adoption decrees issued by the
villages must therefore be afforded full faith and credit under
the Indian Child Welfare Act, 25 U.S.C. §
1911(d).
Id.
at *21-22.
Alaska later stipulated that Fort Yukon could also meet the
requirements for tribal status.
The district court entered a final judgment declaring that Alaska
must give full faith and credit to the adoption decrees
of both the Venetie and Fort Yukon tribes.
The
villages filed a motion for costs and attorneys' fees pursuant
to 42 U.S.C. §
1988(b).
The villages asserted that their complaint sought relief under §
1983
and that, although their constitutional claims were never decided, their
rights to self-governance and under the ICWA were implemented by
§
1983
and were vindicated in the suit.
The district court granted costs but denied attorneys' fees, concluding
that “the
parties did not litigate and the court did not decide
nor grant any relief under 42 U.S.C. §
1983.”
The villages appealed.
DISCUSSION
[1]
The
district court's denial of attorneys' fees is reviewed for an
abuse of discretion.
See
Corder
v. Gates,
104 F.3d 247, 249 (1996).
However, any elements of legal analysis*1152
and statutory interpretation which figure in the district court's
decision are reviewed de novo.
See
id.
Factual findings underlying the district court's decision are reviewed for
clear error.
See
id.
Section
§
1988(b)
of Title 42 provides that “[i]n
any action or proceeding to enforce a provision of section[
] ...
1983 ...
the court, in its discretion, may allow the prevailing party
...
a reasonable attorney's fee as part of the costs....”
FN1
As
we recognized in United
States v. Washington,
“the
dispositive question in this appeal is whether the Tribes have
stated a claim under 42 U.S.C. §
1983
for which attorney's fees are available under 42 U.S.C. §
1988.”
813
F.2d 1020, 1022-23 (9th Cir.1987) (footnotes omitted).
FN1.
At
oral argument, counsel for the State of Alaska argued that
the court lacked subject matter jurisdiction to award fees because
the tribes were not “citizens
or other persons”
and therefore could not sustain a §
1983
action.
The Supreme Court has liberally construed “other
persons”
for the purposes of §
1983
to include labor unions, see
Allee
v. Medrano,
416 U.S. 802, 819 n. 13, 94 S.Ct. 2191, 40
L.Ed.2d 566 (1974), corporations, Metropolitan
Life Ins. Co. v. Ward,
470 U.S. 869, 881 n. 9, 105 S.Ct. 1676, 84
L.Ed.2d 751 (1985), and non-profit organizations, NAACP
v. Button,
371 U.S. 415, 428, 83 S.Ct. 328, 9 L.Ed.2d 405
(1963).
Moreover, Ninth Circuit authority supports the conclusion that the plaintiff
tribes are “other
persons”
entitled to sue under §
1983.
See
Chemehuevi
Indian Tribe v. California State Board of Equalization,
757 F.2d 1047, 1054-55 (9th Cir.), rev'd on other grounds,
474 U.S. 9, 106 S.Ct. 289, 88 L.Ed.2d 9 (1985)
(per curiam) (holding that tribe is “person”
for purposes of state tax statute).
Such a conclusion is also consistent with the broad intent
of Congress to “provide
a federal remedy for the abridgement of federally secured rights.”
Lac
Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin,
663 F.Supp. 682, 691 (W.D.Wis.1987);
see
also Mille
Lacs Band of Chippewa Indians v. Minnesota,
853 F.Supp. 1118, 1127 (D.Minn.1994).
[2]
To
the extent that either this court in Venetie
II
or the district court on remand granted relief pursuant to
§
1983,
the villages are undoubtedly entitled to attorneys' fees under 42
U.S.C. §
1988.
However, we have also recognized that even unadjudicated claims can
support an award of attorneys' fees under §
1988
as long as those claims are substantial and were not
alleged solely to support the fee award.
See
Hoopa
Valley Tribe v. Nevins,
881 F.2d 657, 661 (9th Cir.1989) (citing Maher
v. Gagne,
448 U.S. 122, 130-33, 100 S.Ct. 2570, 65 L.Ed.2d 653
(1980)).
Therefore, the villages need only show that at least one
of their claims falls within the remedial scheme of §
1983
and remained a sufficiently substantial claim throughout the litigation to
trigger the fee-shifting provision of §
1988.
a.
The
ICWA Claim
In
considering our jurisdiction in Venetie
II,
we held that §
1911(d)
of the ICWA gave both the Native villages and their
individual residents private rights of action in federal court.
Venetie
II,
944 F.2d at 553.
We reasoned that, given Congress's understanding at the time of
passage that statutes passed for the benefit of Indian tribes
would “be
liberally construed in favor of such tribes,”
Congress would have expressly precluded a federal cause of action
had it intended that none be recognized.
Id.
at 554.
After finding “no
reason that Congress would not have intended to give Indian
tribes access to federal courts to determine their rights and
obligations under the Indian Child Welfare Act,”
the court held that “Congress's
intention to create a tribal cause of action under the
Act can be inferred.”
Id.
[3]
There
are two issues necessary to determining whether the villages' ICWA
claims are enforceable by §
1983:
1)
whether the federal statute was intended to create an enforceable
right;
and
2) whether the statutory scheme indicates an intent to preclude
resort to §
1983.
See
Wilder
v. Virginia Hospital Ass'n,
496 U.S. 498, 508 n. 9, 110 S.Ct. 2510, 110
L.Ed.2d 455 (recognizing an exception to general rule that §
1983
provides remedy for violation of federal statutory rights “only
when Congress has affirmatively withdrawn the remedy”).
The Ninth Circuit expressly concluded in Venetie
II
that the ICWA created a right enforceable in federal court.
The only remaining question is whether the ICWA included a
sufficiently exhaustive remedial scheme within the underlying statute to preclude
enforcement under §
1983.
See
Smith
v. Robinson,
468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984).
In
support of its conclusion that the statute created an enforceable
federal right, the court in Venetie
II
noted that “[a]s
the primary*1153
mechanism for advancing its objectives in the [Indian Child
Welfare] Act, Congress created a comprehensive jurisdictional scheme for the
resolution of custody disputes involving Indian children.”
944
F.2d at 555.
The court stopped well short, however, of finding that the
ICWA contains “a
remedial scheme that is sufficiently comprehensive ...
to demonstrate congressional
intent to preclude the remedy of suits under §
1983.”
Blessing
v. Freestone,
520 U.S. 329, ----, 117 S.Ct. 1353, 1362, 137 L.Ed.2d
569 (1997) (internal quotation omitted).
The Supreme Court in Blessing
noted that it has “[o]nly
twice found a remedial scheme sufficiently comprehensive to supplant §
1983.”
Id.
In both of those cases, the federal statutes included either
specific provisions authorizing private persons to sue or extensive and
“carefully
tailored”
administrative procedures followed by judicial review of disputes.
Id.
117 S.Ct. at 1362-63.
The
ICWA, however, contained no such specific enforcement schemes.
This court in Venetie
II
had to imply a federal cause of action precisely because
none was explicitly included in the statutory scheme.
It would seem strange indeed for a statute to include
a remedial scheme sufficiently comprehensive to preclude a §
1983
suit where an enforceable federal right had to be implied
by the court.
The ICWA, therefore, does not provide any exclusive means for
enforcing the rights recognized in §
1911(d).
Although it did not mention §
1983
as the intended mechanism for enforcement, this court's decision in
Venetie
II
must be read to recognize the villages' suit as a
private right of action under §
1983
for the enforcement of a federal right created by §
1911.
The villages' claims based on violations of the ICWA, which
provided the basis for the district court's declaratory judgment, are
within the scope of §
1983
and support an award of fees under §
1988.
CONCLUSION
In
finding an implied private right of action within §
1911,
this court implicitly held that the villages' claims under the
ICWA could be enforced through §
1983.
Because it was under §
1911(d)
that the district court awarded declaratory relief, the villages' §
1983
claims based upon violations of that provision provide a basis
for the award of fees.
REVERSED AND REMANDED
FOR AWARD OF ATTORNEY'S FEES.
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