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(Cite as: 1986 WL 81076 (Alaska
A.G.))
Office
of the Attorney General
State
of Alaska
*1
File No. 663-86-0248
April
16, 1986
State
recognition of Native council adoption orders
Honorable
John Pugh
Commissioner
Department
of Health & Social Services
You have requested our advice on the question of state
recognition of an adoption decree from the village council of
an Alaskan Native village. Specifically, the Bureau of Vital Statistics
has received a request on behalf of the village of
Allakaket for a substitute birth certificate for an infant for
whom the village council has issued an adoption decree. The
Bureau ordinarily issues substitute birth certificates upon proof of a
valid adoption through
an Alaskan court or the courts of another state. The
question here is whether an adoption order from a Native
council in an off-reservation Alaskan community should be given the
same deference as an adoption order from the courts of
another state.
25 U.S.C. § 1911(d),
which is part of the federal Indian Child Welfare Act
(ICWA), requires each state to give full faith and credit
to the "public acts, records, and judicial proceedings" of Indian
tribes regarding Indian child custody proceedings, to the same extent
that it gives full faith and credit to other entities.
We interpret this provision as requiring the state to recognize
and give effect to adoption decrees (adoptions are "child custody
proceedings" under ICWA) from validly constituted tribal courts to the
same extent that it would with child custody decrees from
other states.
The question then becomes, to what extent does Alaska give
full faith and credit to child custody decrees from other
states? The "full faith and credit" doctrine derives from article
IV, section 1, of the United States Constitution. Its application
in child custody proceedings has never been clear. [FN1]
The Alaska Supreme Court has taken the position that the
courts will disregard full faith and credit and abandon the
principle of comity with other states when a child's welfare
so dictates. Layman v. DeHart, 536 P.2d 789 (Alaska 1975);
Wilsonoff v. Wilsonoff, 514 P.2d 1264, 1267 Alaska 1973); Restatement
(Second) of Conflict of Laws § 79
(1971). The United States
Supreme Court has ruled that when a judgment in one
state is sought to be enforced in another state, the
second state may legitimately inquire into whether the first state
had jurisdiction in the original proceeding. Adam v. Saenger, 303
U.S. 59, 62 (1938). In short, although decrees and judgments
from other states will ordinarily be given effect in Alaska,
it is still proper to question the jurisdiction of the
other state's courts and, in child custody cases, to reexamine
whether the child's welfare would be harmed by the foreign
decree.
We do not mean to suggest that the Bureau of
Vital Statistics should make independent inquiry regarding a child's welfare.
Foreign decrees are presumed to be valid until a challenge
is made to their validity. However, when there is reason
to question the jurisdiction of an entity purporting to issue
child custody orders, the Bureau may properly decline to give
them effect until the legal uncertainties are resolved.
*2
In this case, where the Allakaket Village Council has purported
to issue an adoption order, there is substantial reason to
question that council's legal jurisdiction. Native councils on reservations have
authority over tribal adoptions, and their decrees are generally entitled
to be respected by states. But Allakaket is not on
a reservation. However, the Indian Child Welfare Act does permit
off-reservation Alaska Native villages to exercise a broad range of
child welfare powers. But the Act contains a significant restriction:
In our opinion,
under § 108
of the Act, 25 U.S.C. § 1918,
Alaska Native villages may assume jurisdiction over Indian child custody
proceedings only after approval by the Secretary of the Interior
of a petition from the village with a suitable plan
for exercising that jurisdiction. Allakaket has not received this approval
but has simply started issuing decrees, on the theory that
it has inherent authority to do so. This issue is
already in litigation regarding other villages. At this point the
situation may be described as follows: The jurisdiction of the
council to issue adoption decrees is legally disputed and a
substantial question will continue to exist until the courts or
Congress clarifies the law.
As noted above, the state is not obligated to give
full faith and credit to decrees from another entity when
that entity's jurisdiction is in doubt. Thus, the Bureau of
Vital Statistics is not obligated to issue a substitute birth
certificate pursuant to a decree from the Allakaket Village Council,
at least as long as the council's jurisdiction is in
as much legal doubt as it is today. Of course,
if the legal doubts are resolved in favor of the
council in the future, it would then be proper to
recognize the council's decrees. If the Bureau receives similar requests
in the future, we will be happy to give advice
on the status of legal conflicts regarding Native village jurisdiction.
Finally, we note that counsel for Allakaket may have made
this request solely for the purpose of attempting to arrange
indirect evidence of state recognition of
village jurisdiction. If that was the case, it would be
an improper use of the Bureau, and we suggest that
whenever any of your offices believes this may be happening
in the future, it seek our advice on the situation.
*1
Harold M. Brown
Attorney
General
Douglas
K. Mertz
Assistant
Attorney General
Department
of Law
[FN1].
See the United States Supreme Court cases listed in DeHart
v. Layman, 536 P.2d 789, 791 n. 4 (Alaska 1975).
1986 Alaska Op. Atty. Gen. (Inf.) 315, 1986 WL 81076
(Alaska A.G.)
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