MATTHEWS, Chief Justice, joined by COMPTON, Justice, dissenting.

I. Introduction .................................................. 766

II. Historical Setting ............................................ 768

III. How This Case Should Be Decided ............................... 771

IV. Summary of the Majority's Reasoning ........................... 772

V. The Allocative Principle of State and Tribal Power ............ 774 A. The Allocative Principle Is a Fundamental Component of American Indian Law ..................................... 774 B. The Supreme Court Has Traditionally Viewed Whether or Not a Case Arose in Indian Country as a Threshold Issue ..... 777 C. Indian Country as a Jurisdictional Concept Encompasses Tribal Power over Both Tribal Lands and Members ......... 778 D. The Majority's Decision Is Internally Inconsistent with Regard to the Importance of a Territorial Basis for Tribal Court Jurisdiction ............................... 779

VI. Indian Country Is a Prerequisite for the Exercise of Tribal Court Adjudicatory Authority ................................ 780 A. The Supreme Court Has Never Held that a Tribe's Inherent Powers Can Be the Basis for Exercising Tribal Adjudicatory Authority Outside of Indian Country ........ 780 B. At Least Two of the Inherent Powers Recognized in United States v. Wheeler Do Not Extend Beyond Indian Country ................................................. 780 1. A Tribe's Inherent Power to Criminally Sanction Its Members Does Not Extend Outside of Indian Country .. 781 2. A Tribe's Inherent Power to Regulate Domestic Relations Among Members Does Not Extend to Cases Arising Outside of Indian Country ................... 781 C. DeCoteau .................................................. 783 D. Fisher .................................................... 785 1. Fisher's Language Does Not Support Jurisdiction Outside Indian Country .............................. 785 2. Iowa Mutual's Citation to Fisher Does Not Persuasively Reinterpret Fisher's Meaning ........... 787 3. Fisher Does Not Concern Concurrent State Jurisdiction ........................................ 788 E. Other Case Law ............................................ 788

VII. Executive and Statutory Authority Relied on by the Majority ... 790 A. Executive Advocacy as to the Extent of Tribal Court Jurisdiction Is Not Entitled to Special Deference ....... 790 B. Statutory Analysis ........................................ 791 1. The Canon of Construction Favoring Native Americans Is Inapplicable to This Case ........................ 791 2. ANCSA ................................................. 791 3. The Tribe List Act .................................... 792 4. The Tribal Justice Act ................................ 793 5. The Indian Child Welfare Act (ICWA) ................... 793 a. ICWA Should Not Be Extrapolated ................... 793 b. The Majority Decision Ignores Essential Protections Which Congress Built into ICWA ...... 794

VIII. Even Assuming that Tribal Courts Have Inherent Sovereign Power to Hear Child Custody Cases Not Arising in Indian Country, the Majority Decision Is Still Erroneous Because It Enables a Tribal Court to Utilize this Power Over a Non-Tribal Member .......................................... 795 A. Case Law: Tribal Inherent Sovereignty Powers Relate Only to Tribal Members ................................. 796 B. The Montana Exceptions Do Not Apply ...................... 797 C. The Absence of Subject Matter Jurisdiction Cannot Be Waived ................................................. 798 D. Tribal Court Jurisdiction Over Nonmembers Denies Access to State Courts on the Basis of an Unpermitted Racial Classification ......................................... 798

IX. Court-developed Policy Arguments are an Inappropriate Basis Upon Which to Base Tribal Court Jurisdiction ................ 799

X. State Law Applies Outside Indian Country ...................... 800 A. Case Law .................................................. 800 B. Section 4 of Public Law 280 Requires that the Laws Applied in Tribal Court Must be Consistent with State Law ....... 801 C. The Rationale of Erie v. Tompkins ......................... 802

XI. Conclusion .................................................... 803

Addendum: P.L. 280 History and Analysis ............................ 805

I. Introduction

Does inherent tribal jurisdiction over custody cases extend beyond Indian country? The majority answers "yes," concluding that tribal sovereignty prevails unless Congress provides otherwise. My answer is "no." Under established principles of federal Indian law, state law governs outside of Indian country unless Congress provides otherwise, and it has not so provided. Moreover, the United States Supreme Court has twice held that inherent tribal jurisdiction over custody applies only to cases arising within Indian country.

Today's opinion changes Alaska society. Alaska law no longer applies to every Alaskan. The doors of Alaska's courts will no longer be open to all Alaskans. More than one-sixth of Alaskan children, regardless of where they reside, will be subject to the laws of one of 226 village tribal organizations. More than one-sixth of Alaskan adults, regardless of where they reside, will be subject to the domestic relations laws of one of 226 village tribal organizations. These laws, written or unwritten, may be different from the laws of the state, indeed they may conflict with the laws of the state. But their reach will be statewide, and even beyond, governing cases that arise in cities, towns, and villages which may be hundreds of miles from the village whose tribal laws are applied. And the family law cases of more than one out of six Alaskan children and adults now will be subject to adjudication not in the Alaska Court System, but in the tribal courts of one of 226 villages. Some tribal court cases will be decided fairly. Others will not be. But the only remedy Alaskans aggrieved by the application of conflicting laws or unfair decisions will have is to pursue "comity" litigation in the state courts. Relief through this vague doctrine will be uncertain, hard to obtain, and expensive.

Because today's opinion takes a long step away from the Alaska constitutional goal of equal rights under the law and is contrary to federal law, I dissent. Given the importance of this case to the future of Alaska's system of justice, I set forth my views in greater length than is normally required or appropriate in a dissenting opinion.

Today's opinion holds:

(1) That tribal courts have jurisdiction, based on inherent sovereignty, to adjudicate child custody cases which arise outside of Indian country, involving children who are either tribal members or eligible for tribal membership. Such cases involve custody disputes between parents who are tribal members, and between parents when only one parent is a tribal member. The majority also holds that a child's eligibility for tribal membership, taken alone, is a sufficient basis for the assertion of jurisdiction. Thus, any custody dispute involving a child eligible for tribal membership, regardless of the membership status of the adult parties, will fall within the coverage of the opinion.

(2) That when tribal courts decide custody disputes, tribal law controls even where it is inconsistent with state law.

(3) And that Public Law (P.L.) 280, which grants Alaska exclusive jurisdiction of private civil cases arising in Indian country, does not apply to this case.

I disagree with the first two conclusions for reasons developed at length in this dissent.

With respect to the third conclusion, regarding P.L. 280, my observations are as follows. P.L. 280 grants the State of Alaska criminal and civil jurisdiction over cases arising in Indian country. We have held that P.L. 280 grants Alaska exclusive, rather than merely concurrent jurisdiction. The appellant and the amici in this case argue that these holdings are wrong and that tribes have concurrent jurisdiction. Most of their briefing is devoted to this point. P.L. 280, however, focuses on cases arising in Indian country, and the present case does not arise in Indian country. Why then the concern with P.L. 280? The appellant and the amici recognize that Congress could not have intended tribes to have more power outside of Indian country than within Indian country. Thus if Alaska has exclusive jurisdiction to decide private custody cases which arise in Indian country, it has, by necessary implication, exclusive jurisdiction to decide private custody cases which arise outside of Indian country.

Since the majority opinion has not overruled our P.L. 280 cases, it might be sufficient for me to observe that one independent reason why the opinion is wrong is that it conflicts with this necessary implication. But in order to fully answer the arguments of the appellant and the amici concerning P.L. 280 I set forth my views on this issue in an addendum to this opinion. There I explain that our previous cases were properly decided, and that P.L. 280 grants Alaska exclusive jurisdiction over private child custody cases arising in Indian country.

II. Historical Setting

In the body of this dissent, I take direct issue with the majority's conclusion that tribal courts have jurisdiction to hear child custody cases not arising in Indian country. To set the context of this case, I begin with a brief statement of the history of Government-Native relations in Alaska. Without such a statement one might assume, based on the majority opinion, that before the Alaska Native Claims Settlement Act (ANCSA) tribes were "adjudicat[ing] domestic disputes between members," and that I am arguing that Congress in passing ANCSA in 1971 intended to "eradicate tribal court jurisdiction over family law matters." Neither assumption would be correct.

Beginning with the assumption of jurisdiction over Alaska by the United States in 1867, throughout Alaska's history as a territory, and since statehood in 1959, Alaska Natives have always been subject to the same laws as non-Natives. These laws have always been administered only by territorial and state courts open to Native and non-Native alike. Thus Congress, in passing ANCSA in 1971, did not focus on tribal court jurisdiction because tribal courts had played no significant role in Alaska's legal history.

The history of Government-Native relations in Alaska has been recounted in detail in Native Village of Stevens v. Alaska Management Planning, and Metlakatla Indian Community, Annette Island Reserve v. Egan. I will refer here mainly to the conclusions that we have drawn from this history, rather than to the details on which the conclusions are based.

We stated in Native Village of Stevens that "the history of the relationship between the federal government and Alaska Natives up to the passage of the Alaska Indian Reorganization Act, 49 Stat. 1250 (1936) indicates that Congress intended that most Alaska Native groups not be treated as sovereigns." "[N]either the Alaska Indian Reorganization Act, nor subsequent Congressional acts have signaled a change from non-sovereign to sovereign status." We supported this conclusion with a detailed examination of court decisions and enactments of Congress and the Territorial Legislature, all indicating that Alaska Natives were governed by general rather than tribal law. We noted that a proviso of the Alaska Indian Reorganization Act of 1936 (IRA) which was applicable to most Alaska Native groups explicitly stated that they had not been recognized as tribes. We reiterated the following points by quoting from our earlier Metlakatla opinion:

The United States has never entered into any treaty or similar type agreement with any group of Indians in Alaska. None of the Indians of appellant communities have ever been exempt from taxation by the Territory or State of Alaska. Crimes committed by Indians in Alaska have always been punished by the territorial and state courts. . . . There are not now and never have been tribes of Indians in Alaska as that term is used in federal Indian law. No Indian tribe, independent nation or power has been recognized in Alaska.

We also noted in Native Village of Stevens that a section of the Alaska IRA authorized the Secretary of the Interior to designate as reservations areas of land which had previously been reserved by executive order for the use and occupancy of Alaska Natives or which were actually occupied by them. Some reservations were so designated. These reservations, and the earlier reserves that were not designated as reservations, clearly meet the definition of "Indian country" codified in 1948 in 18 U.S.C. § 1151(b) as "dependent Indian communities." But they were not thought to be areas beyond the reach of state law.

This assumption was challenged in 1957 in the case of In re McCord. That case involved the prosecution for statutory rape of two Natives who resided, and committed their alleged offenses, on a reserve created by executive order encompassing the village of Tyonek. Tyonek had been issued a constitution under the Alaska IRA. The defendants contended that Tyonek was Indian country and was thus beyond the reach of the laws of the Territory of Alaska and that the federal act extending certain federal crimes to Indian country did not apply to statutory rape. Territorial District Court Judge McCarrey accepted these arguments and dismissed the charges against the defendants.

While the McCord decision disturbed conventional assumptions and threatened to leave a law enforcement void at least on those reserves which were occupied by villages which had IRA constitutions, its immediate effects were short-lived. Within a year Congress had added the Territory of Alaska to the list of states governed by P.L. 280. This action, taken in response to the McCord decision, extended the criminal and civil laws of the territory to Indian country under the administration of the territorial courts.

This was the historical setting in 1971 when ANCSA was passed revoking all reservations except Metlakatla. Native sovereignty issues, tribal law, and tribal court jurisdiction were not within the scope of ANCSA. Alaska law was thought to apply to all Alaskans, both Native and non-Native, and the cases of all Alaskans were decided in Alaska courts. The assumption of Congress and the Department of the Interior in 1971 was that P.L. 280 granted exclusive jurisdiction to the state. And Alaska Native villages had not received formal recognition as tribes.

But three developments of considerable legal significance took place after the passage of ANCSA. First, in the mid-1970's the Department of Interior reversed its field and decided P.L. 280 was a grant of concurrent rather than exclusive jurisdiction to the states. This view was adopted by the Ninth Circuit in Native Village of Venetie I.R.A. Council v. Alaska ( Venetie IRA).

Second, the Interior Department in 1993 through Assistant Secretary Deer administratively recognized 226 Alaska Native villages as sovereign tribes.

And third, the Ninth Circuit in Alaska ex rel. Yukon Flats School District v. Native Village of Venetie Tribal Government ( Venetie I), ruled that at least some land conveyed under ANCSA qualified as Indian country.

The conjunction of these events promised to have significant and potentially enormous consequences. More than forty-four million acres (an area about the size of the State of Washington) were conveyed under ANCSA. Since virtually every Native village recognized as sovereign by Secretary Deer received an ANCSA conveyance, Alaska might have contained 226 semi-autonomous nations. State functions spanning a broad spectrum of criminal and civil laws might have been transferred to the villages within these enclaves.

This then was the setting in 1998 when the United States Supreme Court decided Alaska v. Native Village of Venetie Tribal Government ( Venetie II). In that case the tribal government sought to impose about $161,000 in taxes covering commercial activities within the tribal village on a contractor building a state school on tribal lands transferred under ANCSA. The Ninth Circuit had noted that the ultimate question — "whether Venetie has the authority to tax activities occurring within its territory — turns on whether Venetie occupies Indian country". The circuit court had concluded that Venetie's ANCSA lands were Indian country.

The United States Supreme Court reversed, holding that a tribe's ANCSA lands are not Indian country. Referring to the "dependent Indian communities" definition in 18 U.S.C. § 1151(b), the Court held that a two-part test applied. The lands must have been set aside by the federal government for the use of Indians as Indian land, and the lands must be under continuing federal superintendence. Neither part of the test was met with respect to ANCSA lands. ANCSA revoked all reservations in Alaska except Metlakatla and transferred lands to private state-chartered Native corporations without restraints on alienation. And instead of continuing federal superintendence, one objective of ANCSA was to avoid a "lengthy wardship or trusteeship."

The Supreme Court's decision in Venetie II meant that there would not be numerous reservation-like enclaves in Alaska. But in some ways the majority's decision today will have broader consequences than an affirmance of the Ninth Circuit's Venetie I decision would have had. If there were Indian country enclaves, tribal jurisdiction would be confined to the enclaves. But without the geographical limits of enclaves, under today's decision tribal jurisdiction extends statewide, and beyond. It follows tribal members, children eligible for membership, and their parents wherever they reside.

III. How This Case Should Be Decided

Before turning to a critique of the majority's reasoning I will state in affirmative form how I think this case should be decided. Appellant claims, and the majority concludes, that Northway has inherent sovereignty to regulate domestic relations among members. Tribes unquestionably have certain powers which derive from inherent sovereignty. For example, as the majority notes, tribes have the power to regulate the conduct of members through criminal laws, they have the power to determine their own membership, they have power over the domestic relations of their members, they have the power to prescribe and enforce rules of inheritance for their members, and they have the power to tax. But do all, or any, of these powers extend beyond Indian country? Specifically, the question in this case is: Does the adjudicatory power to decide the custody disputes of parents whose children are tribal members apply to cases not arising in Indian country?

This is a question of federal law. But there is no need to search the reports of the lower federal courts for an answer. The United States Supreme Court has answered it, twice. The answer is that a tribe's inherent power to adjudicate the custody cases of tribal children does not extend to cases not arising in Indian country.

In DeCoteau v. District County Court, the Court recognized that tribal court jurisdiction would not apply to custody proceedings involving Indian children not residing in Indian country. Because the reservation where the parent and children resided had been terminated, the state court rather than the tribal court had jurisdiction.

In Fisher v. District Court, the Court upheld tribal court jurisdiction over children in a dispute concerning whether a state court or a tribal court had jurisdiction, because "all parties resided on the reservation at all relevant times." The court stated that as between state and tribal courts "it is appropriate to predicate jurisdiction on the residence of the litigants."

Thus DeCoteau and Fisher unequivocally teach that a tribe's inherent power over child custody cases is limited to cases arising in Indian country.

It is no coincidence that the Supreme Court in making the allocative decision involved in Venetie II cited Footnote 2 of DeCoteau. The Court in Venetie II stated: "Although this definition [of Indian country] by its terms relates only to federal criminal jurisdiction, we have recognized that it also generally applies to questions of civil jurisdiction such as the one at issue here. See DeCoteau v. District County Court for Tenth Judicial Dist., 420 U.S. 425, 427 n. 2 (1975)." Footnote 2 of DeCoteau, cited by the Court in Venetie II, supplies the complete answer to the present case:

If the lands in question are within a continuing "reservation," jurisdiction is in the tribe and the Federal Government . . . . On the other hand, if the lands are not within a continuing reservation, jurisdiction is in the State, except for those land parcels which are "Indian allotments, the Indian titles to which have not been extinguished . . . . While § 1151 is concerned, on its face, only with criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction."

IV. Summary of the Majority's Reasoning

The rationale of the majority can be expressed in two syllogisms. The first is as follows:

(1) Tribal sovereignty exists (apparently wherever it is asserted) unless Congress has expressly and unambiguously divested the tribe of sovereignty in the type of case at issue.

(2) Congress has not expressly and unambiguously divested Alaska tribes of child custody jurisdiction in cases arising outside of Indian country.

(3) Therefore Alaska tribes have custody jurisdiction in cases arising outside of Indian country.

As support for the conclusion reached by this syllogism and as an independent but related rationale the majority also relies on the following second syllogism:

(1) Through the Tribe List Act and Tribal Justice Act, Congress has ratified the Secretary of the Interior's recognition of Alaska tribes as sovereigns, and as sovereigns, they have inherent authority to establish their own forms of government including tribal justice systems.

(2) Unless tribes that do not occupy Indian country have "inherent powers of self-governance," including the power to adjudicate child custody disputes, their sovereignty would be "virtually meaningless."

(3) As Congress did not intend tribal sovereignty to be virtually meaningless, it must have empowered tribes that do not occupy Indian country to exercise inherent powers of self-governance, including child custody jurisdiction, outside of Indian country.

These syllogisms are flawed. In particular the first premise of the first syllogism is wrong because it ignores the basic principle for the allocation of state and tribal functions. Outside of Indian country state laws apply to Indians unless Congress explicitly provides otherwise. Thus, outside of Indian country the premise should not be that tribal sovereignty applies unless Congress provides otherwise, but that state sovereignty applies unless Congress provides otherwise.

The second syllogism is wrong in several respects. In particular, the second premise treats all the inherent tribal powers of self-government alike. In fact, some inherent powers might be effective outside of Indian country, but others definitely are not. Supreme Court case law is clear that, for example, the power to regulate the conduct of tribal members toward each other through the criminal law does not extend beyond Indian country. Equally clear is Supreme Court case law that the power to adjudicate child custody cases does not extend beyond Indian country.

Further, the second premise of the second syllogism is wrong in asserting that sovereignty would be "virtually meaning less" unless tribes which do not occupy Indian country have all the inherent powers of self-government. Indian country is an important limiting factor, but tribes without it still have the inherent power to determine their own forms of organization and membership. Further, tribes have such powers as are delegated them by Congress. Tribal powers under the Indian Child Welfare Act are an important example of delegated powers that involve the need to use tribal justice systems. Other powers may be delegated in the future, as needed in the judgment of Congress. Tribes outside of Indian country are also eligible for special programs and services provided to Indians by the federal government, many of which involve tribal administration of federal grants. Also, such tribes have sovereign immunity. Thus tribal sovereignty for tribes that do not occupy Indian country is not meaningless.

Finally, the conclusion of the second syllogism that Congress must have wanted tribes that do not occupy Indian country to exercise all the powers of inherent self-government outside of Indian country is demonstrably wrong, for Congress's intent was to treat all tribes equally, and Indian country is a limiting factor on the authority of all tribes. Some tribes outside of Alaska also have lost most of their Indian country, and occupy, like Northway, only scattered allotments — yet their authority is limited by the allocative principle. The tribe in DeCoteau is one example.

V. The Allocative Principle of State and Tribal Power A. The Allocative Principle Is a Fundamental Component of American Indian Law

Despite the complexities of the numerous Supreme Court decisions addressing the extent of tribal power with respect to the states, most of these cases either explicitly or implicitly address two issues: (1) whether the litigants and the activity giving rise to the dispute are based in Indian country, and (2) whether there is an act of Congress which expressly supports the particular exercise of state or tribal power.

These two issues are important because, as the Supreme Court stated in Bryan v. Itasca County, the general rule is that "State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that state laws shall apply." By contrast, outside of Indian country the "general rule" is that tribal authority does not apply, unless there is a clear congressional expression that it should. As the Supreme Court stated in Oklahoma Tax Commission v. Chickasaw Nation, "'express federal law to the contrary' overrides the general rule that 'Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.'"

In Mescalero Apache Tribe v. Jones, the Supreme Court made it clear that this is a firmly established principle of American Indian law that dates back to the 19th century:

[T]ribal activities conducted outside the reservation present different considerations. "State authority over Indians is yet more extensive over activities . . . not on any reservation." Organized Village of Kake [v. Egan], 369 U.S. [60, 75 (1962)]. Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State. See, e.g., Puyallup Tribe v. Department of Game, 391 U.S. 392, 398 (1968); Organized Village of Kake, supra, 369 U.S. at 75-76; Tulee v. Washington, 315 U.S. 681, 683 (1942); Shaw v. Gibson-Zahniser Oil Corp., 276 U.S. 575 (1928); Ward v. Race Horse, 163 U.S. 504 (1896).

Mescalero Apache Tribe also leaves little doubt that the "principle" it describes is a broad one: "That principle is as relevant to a State's tax laws as it is to state criminal laws, see Ward v. Race Horse, supra, at 516, and applies as much to tribal ski resorts as it does to fishing enterprises. See Organized Village of Kake, supra."

Secondary sources have also recognized the existence and importance of the allocative principle. For example, the American Indian Law Deskbook, which is a treatise compiled by the Conference of Western Attorneys General , states:

Determining the presence of Indian country is the benchmark for approaching the allocation of federal, tribal, and state authority with respect to Indians and Indian lands. . . . [T]he Supreme Court has employed [the Indian country definition] to determine the geographical reach of the special Indian law rules governing preemption of state law in civil contexts. Thus the "Indian country" definition is relevant to virtually every aspect of Indian law unless displaced by another statutory formulation of geographical coverage.

The discussion of "Preemption in Indian Law" in Federal Indian Law, is also an analysis of the allocative principle. Most of the discussion concerns the "within Indian country" aspect of the principle, because this aspect has received more attention recently. As to the "outside of Indian country" aspect of the allocative principle, this text states:

Preemption can occur in off-reservation contexts also, but the approach is different: state law applies to off-reservation Indian activities unless there is "express federal law to the contrary." Examples of such express laws are treaties reserving off-reservation fishing rights.

Thus, the Supreme Court and Indian law scholars and practitioners have consistently recognized the allocative principle and its centrality in federal Indian law jurisprudence.

In its recent Venetie II decision, the United States Supreme Court once again emphasized the allocative principle, this time in the context of Alaska Natives. Despite the fact that the power to tax is one of a tribe's inherent powers of self-government, the Supreme Court applied the allocative principle and held that the Venetie tribe did not have the power to levy the tax in question because it was being imposed on an activity on tribal lands outside of Indian country. The Court expressed the allocative principle by first citing Footnote 2 of DeCoteau. The Court then stated: "Generally speaking, primary jurisdiction over land that is Indian country rests with the Federal Government and the Indian tribe inhabiting it, and not with the States. See, e.g., South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998)." The part of the Yankton Sioux opinion cited by the Venetie II Court states: "If the divestiture of Indian property . . . effected a diminishment of Indian territory, then the ceded lands no longer constitute 'Indian country' as defined by 18 U.S.C. § 1151(a) and the State now has primary jurisdiction over them."

This general rule, with its presumption in favor of state authority outside of Indian country, clearly applies to the present case. The critical issue here, as in Venetie II and DeCoteau, is whether a tribe can exercise one of its inherent powers outside of Indian country. Nevertheless, the majority ignores this bedrock principle of Indian law jurisprudence in deciding the issue.

Instead of beginning with the premise that state law applies and asking, as the allocative principle requires in cases arising outside of Indian country, whether there is an act of Congress which is in conflict with the assertion of state authority, the majority reverses the principle and begins with the premise that tribal authority applies and asks whether Congress has expressly divested the tribe of jurisdiction in this situation.

The majority does this by claiming that Montana v. United States "reconciled" the allocative principle, as stated in Mescalero, with "the general rule that tribal sovereignty exists unless specifically divested" by Congress. The implication is that the Montana Court somehow changed the meaning and scope of the allocative principle, and because of this "reconciliation" the majority claims that "the [Supreme] Court has not focused on tribal land as determinative of tribal authority." This reasoning is simply wrong. As recently as 1995, the Supreme Court referred to the allocative principle as a "general rule" of Indian law jurisprudence.

Moreover, contrary to the majority's assertions, Montana did not water down what Mescalero's expression of the allocative principle meant. Rather, Montana cited Mescalero for the proposition that "even on reservations, state laws may be applied unless such application would interfere with reservation self-government." This statement adds meaning in favor of state power to the "within Indian country" aspect of the allocative principle, but it does nothing to change the meaning of the allocative principle applied outside of Indian country. This is clear from the text of Mescalero, because almost immediately after Mescalero makes the statement quoted in Montana, the Court goes on to state the "outside of Indian country" portion of the allocative principle: "But tribal activities conducted outside the reservation present different considerations. . . . Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State." Thus, contrary to the majority's assertions, Montana, a case about tribal power over nonmembers on a reservation, does not change the allocative principle's presumption in favor of state authority outside of Indian country.

As noted, the majority's failure to apply the allocative principle leads the majority to proceed from the wrong premise. This, in turn, leads to the erroneous decision in this case. Despite over 100 years of Supreme Court precedent reflecting the allocative principle, the majority goes so far as to state that "whether [a] tribe is located in Indian country" is not a "key inquiry" in cases delineating the extent of tribal jurisdictional power. Such a statement in view of numerous Supreme Court decisions to the contrary turns a blind eye on controlling legal precedent.

B. The Supreme Court Has Traditionally Viewed Whether or Not a Case Arose in Indian Country as a Threshold Issue

Contrary to the majority's claim, the Supreme Court has not only viewed whether or not a case arose in Indian country as an important inquiry in cases delineating tribal jurisdiction, the Court has traditionally treated such an inquiry as the threshold issue upon which the outcome of the case turns. For example, in McClanahan the Court stated: "It may be helpful to begin our discussion of the law applicable to this complex area with a brief statement of what this case does not involve. We are not here dealing with Indians who have left or never inhabited reservations set aside for their exclusive use . . . ."

Also, in Organized Village of Kake, a case involving Native Alaskans, the first issue the Court addressed was the status of the land upon which the dispute arose: "The situation here differs from that of the Metlakatlans in that neither Kake nor Angoon has been provided with a reservation." Because the tribe did not reside in Indian country, and there existed no "statutory authority under which the Secretary of the Interior might permit [Kake] to operate fish traps contrary to state law," the Court held that Alaska's fishing laws applied to the tribe.

Likewise in Venetie II the first, and only, question which the Supreme Court addressed was whether the tribal lands on which the taxed activity took place were within Indian country. Since the answer was "no" the tribe's inherent power to tax could not be exercised.

Similarly, in DeCoteau the Supreme Court affirmed state court jurisdiction over Indian children in a custody proceeding because, as the court held, the case arose on land that no longer was Indian country. Jurisdiction was exclusive. In Indian country the state would have no jurisdiction, outside Indian country the tribe would have no jurisdiction. The Supreme Court's introductory language makes it clear that whether or not the land was Indian country was the threshold issue upon which the outcome of the case rested: "We hold, for the reasons that follow, that [Congress] terminated the Lake Traverse Reservation, and that consequently the state courts have jurisdiction."

C. Indian Country as a Jurisdictional Concept Encompasses Tribal Power over Both Tribal Lands and Members

As the above discussion of the allocative principle makes clear, Indian country as a jurisdictional concept encompasses tribal power over both tribal lands and tribal members. Remarkably, the majority takes issue with this fundamental and settled principle of Indian law. The majority states that the Supreme Court in Venetie II "makes clear that any allocative significance that exists in the concept of Indian country pertains to a tribe's territorial power over its land, not its members." The majority comes to this conclusion, which is at odds with over 100 years of Supreme Court precedent, by reasoning that because the Supreme Court in Venetie II "not[ed] that tribes have 'primary jurisdiction over land that is Indian country' but [said] nothing about jurisdiction over members" there is no "allocative significance . . . in the concept of Indian country" with regard to questions of tribal jurisdiction over tribal members. This conclusion has no basis in Indian law jurisprudence.

The Supreme Court in Venetie II "[said] nothing about jurisdiction over members" for the simple reason that "jurisdiction over members" was not an issue in Venetie II. Whether Venetie's ANCSA-granted lands were Indian country and whether Venetie could exercise its inherent power to tax nonmembers on its lands located outside of Indian country were the issues in that case. Nevertheless, according to the majority's logic, if a specific Supreme Court decision, for example, said that all federal courts must obey Supreme Court precedent, the majority would reason that state courts could ignore Supreme Court precedent because the Court's decision did not mention state courts. The Supreme Court's silence on a subject that is not at issue in a case is just that — silence — not some kind of implied legal pronouncement. The Supreme Court itself has recently criticized the type of faulty reasoning in which the majority engages.

Moreover, numerous Supreme Court cases reveal just how mistaken the majority's conclusion is that Indian country is not relevant to the issue of whether a tribe has jurisdictional power over its own members. In each of these cases, the existence of Indian country was the central factor in determining whether the tribe had jurisdictional authority over its members.

D. The Majority's Decision Is Internally Inconsistent with Regard to the Importance of a Territorial Basis for Tribal Court Jurisdiction

As the above discussion shows, there is substantial Supreme Court authority establishing the allocative principle and the importance of Indian country in delineating state and tribal jurisdictional authority. Because this authority undercuts the basis for the majority's decision, the majority spends much effort arguing that Indian country is not relevant or needed for tribal court jurisdiction over members.

Ironically, the majority, at the end of its opinion, impliedly acknowledges the need for a territorial and geographical basis for jurisdiction in cases like the present one. In its discussion of comity, the majority states that state courts should not recognize tribal court judgments if the tribal court lacked personal jurisdiction. But personal jurisdiction is an inherently territory-based concept, involving contact with a forum state — a geographical entity. Thus, the majority opinion says that the proper exercise of tribal court jurisdiction is not dependent on the territorial concept mandated by federal Indian law, Indian country, but it is dependent on some form of territorial nexus.

The majority does not explain how lower courts should apply its new personal jurisdiction concept. The idea of personal jurisdiction relates to a defendant's contacts with a forum state. In cases involving Indians, the analog to the forum state is Indian country. Today, the majority invents a new analog to the state for purposes of personal jurisdiction in Alaska — the tribal village:

A requirement that a tribal court possess personal jurisdiction over litigants appearing before it ensures that the tribal court will not be called upon to adjudicate the disputes of parents and children who live far from their tribal villages and have little or no contact with those villages.

These assurances that "tribal courts will not be called upon to adjudicate the disputes" of those who live far from tribal villages are illusory, for if a party files a custody suit against another party, Native or non-Native, that defendant must respond no matter where he or she lives, or risk a default judgment in tribal court. The defendant might be able to raise the defense that the tribal court lacked personal jurisdiction but the uncertainty of the meaning of personal jurisdiction in the context of village tribal courts makes that a strategy whose risks may be unacceptably high for many litigants.

It is anyone's guess how the untested concept of personal jurisdiction premised on tribal villages will play out in our state courts. But it does reveal the foundation upon which the majority's decision rests. Rejecting the need for Indian country as the territorial basis for tribal jurisdiction, the majority in the end substitutes another territorial concept through the doctrine of personal jurisdiction. This is a new path, one not taken by federal Indian law.

The United States Supreme Court has never held, as the majority does today, that a tribe's inherent sovereignty, in and of itself, independent of Indian country, can be the basis for tribal adjudicatory authority. The majority acknowledges the absence of case law supporting what it does today, but claims that this dearth of legal precedent results from the fact that "courts have not had occasion to tease apart the ideas of land-based sovereignty and membership sovereignty."

This is an erroneous reading of Supreme Court Indian law jurisprudence, for "teasing apart" these concepts is exactly what the Court has done when it has held that state rather than tribal law governs tribal members outside of Indian country. The cases cited in the following subsections illustrate this. They also illustrate a fundamental principle of Indian law, as articulated by the Conference of Western Attorneys General: " [A] tribe's inherent sovereign powers extend only to tribal territory, [therefore] tribal claims of civil and criminal jurisdiction over member actions on fee lands will be dependent upon the status of those lands." This principle is central to the resolution of the present case, but is ignored by the majority.

B. At Least Two of the Inherent Powers Recognized in United States v. Wheeler Do Not Extend Beyond Indian Country

United States v. Wheeler held that an Indian tribe's "right of internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions." This "power to punish tribal offenders is part of [a tribe's] own retained sovereignty." Other retained sovereign powers of Indian tribes include the power "to regulate domestic relations among tribe members."

The majority relies heavily on Wheeler in holding that the Northway tribal court has jurisdiction in the present case. However, Wheeler, itself, does not answer the question posed by the present case because the events giving rise to the crime in Wheeler took place solely within the confines of Indian country. Despite its extensive reliance on Wheeler, the majority never acknowledges this important difference between Wheeler and the present case. Thus, Wheeler's teachings about inherent tribal powers provide limited guidance in the present case. Wheeler describes how and from where such inherent powers are derived. But it does not indicate whether such powers extend outside of Indian country — the central issue here.

1. A Tribe's Inherent Power to Criminally Sanction Its Members Does Not Extend Outside of Indian Country

In order for the majority's reasoning and result to be correct, there should be authority indicating that the inherent tribal powers described in Wheeler extend outside of Indian country. But there is no such authority. To the contrary, there is definitive authority for the opposite conclusion: that a tribe's inherent power to punish tribal members does not extend beyond the confines of Indian country. For example, in Organized Village of Kake, the Supreme Court observed: "State authority over Indians is yet more extensive over activities . . . not on any reservation. It has never been doubted that States may punish crimes committed by Indians, even reservation Indians, outside of Indian country." This conclusion is not surprising. Even the majority most likely would not endorse the notion of granting Alaska tribes the authority to criminally punish tribal members; yet, that is the logical extension of today's decision.

In Solem v. Bartlett, the Supreme Court made clear that the state's jurisdiction over Indians acting outside of Indian country was exclusive. Solem involved a habeas corpus petition of an enrolled member of the Cheyenne River Sioux Tribe. The question was whether the state had jurisdiction over a tribal member who had committed a crime. The Supreme Court, as it has in numerous other cases, resolved this issue by examining whether the actions giving rise to the dispute occurred in Indian country. The Court did so because it regarded actions outside of Indian country by tribal members to be under the exclusive jurisdiction of the state. The Court explained this concept broadly:

As a doctrinal matter, the States have jurisdiction over unallotted opened lands if the applicable surplus land Act freed that land of its reservation status and thereby diminished the reservation boundaries. On the other hand, federal, state, and tribal authorities share jurisdiction over these lands if the relevant surplus land Act did not diminish the existing Indian reservation because the entire opened area is Indian country. . . .

2. A Tribe's Inherent Power to Regulate Domestic Relations Among Members Does Not Extend to Cases Arising Outside of Indian Country

The majority is correct in noting that tribes have the inherent power to regulate domestic relations among tribal members. Both United States v. Wheeler and Montana v. United States recognized this power. However, as the discussion above shows, the specific inherent power which was Wheeler's focus — the ability of tribes to criminally punish their members — does not extend beyond Indian country. Therefore, it is logical to conclude that neither do the other inherent powers recognized by Wheeler. Supreme Court case law bears this out, at least in terms of the power to decide child custody cases.

Supreme Court precedent holds that the inherent power over child custody cases does not extend to cases not arising in Indian country. One case so holding is DeCoteau v. District County Court. The other is Fisher v. District Court.

C. DeCoteau

The issue in one of the two consolidated cases in DeCoteau was whether the tribal or state court had jurisdiction over custody proceedings involving Indian children. The Supreme Court framed the issue as follows:

In each of the two cases, the South Dakota courts asserted jurisdiction over members of the Sisseton-Wahpeton Tribe for acts done on lands which, though within the 1867 reservation borders, have been owned and settled by non-Indians since the 1891 Act. The parties agree that the state courts did not have jurisdiction if these lands are "Indian country," as defined in 18 U.S.C. § 1151 . . . .

The Court followed this statement with Footnote 2:

If the lands in question are within a continuing "reservation," jurisdiction is in the tribe and the Federal Government . . . . On the other hand, if the lands are not within a continuing reservation, jurisdiction is in the State, except for those land parcels which are "Indian allotments, the Indian titles to which have not been extinguished . . . . While § 1151 is concerned, on its face, only with criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction."

The language of Footnote 2 delineates a straightforward jurisdictional scheme whereby tribal courts have jurisdiction over their members only if the actions of such members that gave rise to the dispute took place in Indian country. The majority disagrees, claiming that "the Court [in DeCoteau] did not consider the implications of the reservation's existence because it accepted a stipulation by the parties that the state had jurisdiction if the reservation had been terminated by Congress."

The majority misreads DeCoteau. It confuses the stipulation and related assumption in Footnote 3 with the statements of law contained in Footnote 2, and the result is a dramatic mischaracterization of the import of the case. It is not true, as the majority claims, that "[a]fter describing the legal agreement between the parties, which the Court assumed without deciding was an accurate one, the Court noted in [F]ootnote 2 that the parties relied on 11 U.S.C. §§ 1151(a) and (c) in formulating their stipulation." Footnote 2, which precedes rather than follows Footnote 3, describes an entirely different legal concept — one that was not contested by the parties, but was not part of the stipulation described in Footnote 3.

The language of Footnote 2 does not describe the content of any kind of stipulation by the parties. Rather, Footnote 2 contains the Court's explanation as to why the parties to the case did not contest the settled issue that "state courts [do] not have jurisdiction if [the] lands are 'Indian country'."

The fallacy of the majority's reading of DeCoteau can be illustrated in two ways. First, a close examination of Footnote 2 reveals that each assertion is supported by a citation to legal authority. It would be illogical to presume that the first two sentences of the footnote (containing the allocative principle) are a description of a stipulation by the parties, but the third sentence is an unannounced segue into the Court's legal analysis.

The second way to disprove the majority's reasoning is to compare the Court's treatment of the issue in Footnote 2 with that of the issue in Footnote 3. Footnote 3, in contrast to 2, does concern an agreement between the parties not to litigate an unsettled question of law. The parties stipulated that fifty percent of the mother's acts occurred on non-Indian, patented land. The Court noted:

The parties here have assumed that the State had jurisdiction . . . if the non-Indian, patented lands were not "Indian country" under 18 U.S.C. § 1151(a). We have made the same assumption. We note, however, that § 1151(c) contemplates that isolated tracts of "Indian country" may be scattered checkerboard fashion over a territory otherwise under state jurisdiction. In such a situation, there will obviously arise many practical and legal conflicts between state and federal jurisdiction with regard to conduct and parties having mobility over the checkerboard territory. How these conflicts should be resolved is not before us.

The Court is explicit about the content of the assumption made by the parties — specifically, that the fifty percent figure would be sufficient to give the state court jurisdiction if the patented land was found not to be Indian country. The Court then raises the counter-argument to this position before openly declaring that the issue was not before the Court and would therefore not be decided. None of this careful disclaimer exists in Footnote 2, because Footnote 2 is a statement of law rather than a description of a stipulation.

The legal principle in Footnote 2 does not indicate where jurisdiction would lie if the activities giving rise to the dispute occurred partly in Indian country and partly outside Indian country. Footnote 3 raises that complex question, but indicates that the parties avoided the issue by stipulating that fifty percent non-Indian country activity would be enough to confer state jurisdiction.

The facts of the present case fall squarely within the legal principle announced in Footnote 2 of DeCoteau — if the lands are not within Indian country "jurisdiction is in the State." This is why I believe DeCoteau should control the resolution of today's case. The tribe in DeCoteau, like tribes, post-ANCSA, in Alaska which previously occupied reserves, had lost its Indian country. Both DeCoteau and today's case involve the same main issue — whether a tribal or state court has jurisdiction in an Indian child custody dispute. Thus, the result in our case should be the same as in DeCoteau — jurisdiction lies with the state, not tribal, court.

D. Fisher

In Fisher, the Tribal Court of the Northern Cheyenne awarded temporary custody of tribal member Ivan to Josephine Runsabove, also a tribal member, because the court had found that Ivan's mother had neglected him. The tribal court later granted Ivan's mother's request for temporary custody. Four days before the entry of that order, Runsabove and her husband initiated an adoption proceeding for Ivan in Montana state court. Ivan's mother, who was also a tribal member, moved to dismiss this state court case for lack of subject matter jurisdiction, arguing that the tribal court possessed exclusive jurisdiction. Upon receiving a certified question from the state court on the issue of which court had jurisdiction, a tribal appellate court held that the state court was without jurisdiction. The Montana Supreme Court disagreed, holding that the state court had jurisdiction. The United States Supreme Court reversed the Montana Supreme Court, noting that this was a case between Indians "arising out of conduct on an Indian reservation," and "[n]o federal statute sanctions this interference with tribal self-government" because, among other reasons, "Montana has not been granted . . . civil jurisdiction" over the reservation under P.L. 280. The Court made it clear that the result would have been different if the litigants had not resided in Indian country:

Since the adoption proceeding is appropriately characterized as litigation arising on the Indian reservation, the jurisdiction of the Tribal Court is exclusive. The Runsaboves have not sought to defend the state court's jurisdiction by arguing that any substantial part of the conduct supporting the adoption petition took place off the reservation. . . . Since all parties resided on the reservation at all relevant times, and since the reservation has not been partially terminated, cf. DeCoteau v. District County Court, 420 U.S. [425,] 429 n. 3 [(1975)], it appears that none of the acts giving rise to the adoption proceedings occurred off the reservation. The Runsaboves do not contend otherwise. . . . In a proceeding such as an adoption, which determines the permanent status of litigants, it is appropriate to predicate jurisdiction on the residence of the litigants . . . .

The Court's teaching is clear: since jurisdiction is to be predicated on the place of residence of the litigants, if the parties to the dispute had resided outside of Indian country the state court would have had jurisdiction. That is the situation in the present case, because the litigants here do not reside in Indian country.

Thus, I believe that Fisher squarely answers the issue presented by the present case. But the majority argues that Fisher supports its holding that the Northway tribal court has jurisdiction in this case. The majority does this in two ways: (1) by misreading Fisher; and (2) by citing a subsequent Supreme Court case in an attempt to reinterpret Fisher's analysis and holding. I address each of these efforts in turn.

1. Fisher's Language Does Not Support Jurisdiction Outside Indian Country

The majority argues that Fisher "provides an example of the Supreme Court's recognition of the dual nature of sovereignty[.]" The majority acknowledges that the language in Fisher, cited above, makes it clear that the Supreme Court was holding that jurisdiction was in the tribal court because the child custody dispute arose in Indian country. But, the majority then quotes Fisher in the following manner: "[t]he exclusive jurisdiction of the Tribal Court . . . [derives] from the quasi-sovereign status of the Northern Cheyenne Tribe under federal law." From this quote, the majority finds evidence for its "dual nature of sovereignty" theory by stating " Fisher therefore reflects both a recognition of territorial bases of sovereignty and an understanding that tribal status itself includes the power to adjudicate internal child custody disputes." The use of the word "itself" means that the majority believes that tribal court jurisdiction can be based on territorial sovereignty, or, as to cases not arising in Indian country, a tribe's inherent sovereignty. Such a reading is not reasonable.

The Northern Cheyenne Tribe has quasi-sovereign status. The power derived from this status is what enabled the tribe to adjudicate the child custody case in Fisher. But the Court made clear that this power does not follow tribal members wherever they reside. Instead, it is confined to cases arising in Indian country.

The majority's "dual nature of sovereignty" reading of Fisher presumes that the Supreme Court's analysis in Fisher is internally inconsistent. The Supreme Court could not assert both that if the case arose outside Indian country, the state court would have jurisdiction, and also that "tribal status itself includes the power to adjudicate internal child custody disputes," arising outside Indian country. Fisher is not saying that tribal authority to adjudicate child custody cases is limited to cases arising in Indian country and that such authority is not limited to cases arising in Indian country. Yet that is what the majority's reading comes down to. Rather, Fisher can only be read as holding that the tribe has jurisdiction to adjudicate a child custody case involving tribal members because of its quasi-sovereign status, and that this jurisdiction is limited to cases arising in Indian country.

Indeed, consistent with many other Supreme Court cases, Fisher treats the question of whether or not the dispute arose in Indian country as a threshold issue, upon which the outcome of the case rests. Finding that the case arose in Indian country, the Court applied the general rule favoring tribal authority in the absence of contrary congressional intent. That Fisher treated the existence of Indian country as a threshold issue becomes even more clear in light of Fisher's citation to and reliance on DeCoteau.

As previously noted, in DeCoteau the Supreme Court found that the events giving rise to the Indian child custody dispute in question did not take place in Indian country. On that basis, the Court found that the state court had exclusive jurisdiction. DeCoteau was twice cited by Fisher. Fisher, which "predicate[s] jurisdiction on . . . residence" must, like DeCoteau, be read as standing for the proposition that Indian country is a requirement for tribal court jurisdiction in child custody cases where a tribe exercises its inherent sovereign authority over its members. To read Indian country as somehow merely optional or as just an alternative path to jurisdiction, as the majority does, is plainly inconsistent both with Fisher and DeCoteau.

2. Iowa Mutual's Citation to Fisher Does Not Persuasively Reinterpret Fisher's Meaning

The majority attempts to reinterpret Fisher's teachings by relying on the following statement from Iowa Mutual Insurance Co. v. LaPlante: "If state-court jurisdiction over Indians or activities on Indian lands would interfere with tribal sovereignty and self-government, the state courts are generally divested of jurisdiction as a matter of federal law. See Fisher v. District Court, 424 U.S. 382 (1976)." The majority maintains that Iowa Mutual shows that Fisher's holding stemmed from the tribe's sovereign powers and not its connection to Indian country.

The majority's interpretation of Iowa Mutual's citation to Fisher is directly at odds with Strate v. A-1 Contractors. Strate is a much more recent Supreme Court pronouncement on tribal court adjudicatory authority. It does not simply cite Fisher, as Iowa Mutual does, but directly explains the holding in Fisher, something that Iowa Mutual does not do. Strate states:

The Court held in Fisher that a tribal court had exclusive jurisdiction over an adoption proceeding when all parties were members of the tribe and resided on its reservation. . . . The Court observed in Fisher that state courts may not exercise jurisdiction over disputes arising out of on-reservation conduct — even over matters involving non-Indians — if doing so would "infring[e] on the right of reservation Indians to make their own laws and be ruled by them."

Later in the opinion, the Court in Strate interprets a citation that Montana v. United States made to Fisher. The Court in Strate described Montana's analysis in the following way: "The [ Montana] Court referred first to the decision [in Fisher] recognizing the exclusive competence of a tribal court over an adoption proceeding when all the parties belonged to the Tribe and resided on its reservation. See Fisher, 424 U.S. at 386." Strate's explanation of Fisher leaves no doubt that the Supreme Court views the existence of Indian country as a critical factor in Fisher's analysis. Its use of the word "and," not "or," each time it analyzed Fisher shows that the Court viewed the tribe's connection to Indian country as a determining factor in its holding that the tribal court in Fisher had jurisdiction over the child custody dispute. Strate, therefore, closes the door on the majority's interpretation of Fisher that would have Fisher stand for the proposition that tribal courts can adjudicate child custody cases not arising in Indian country.

Also, Strate makes it clear that to the extent that Iowa Mutual is cited for authoritative statements on the scope of tribal jurisdictional powers (as the majority does) it is no longer persuasive law. The Supreme Court in Strate emphasizes this point throughout its opinion.

Both [ Iowa Mutual and National Farmers Union Insurance Cos. v. Crow Tribe, 471 U.S. 845 (1985)] describe an exhaustion rule allowing tribal courts initially to respond to an invocation of their jurisdiction; neither establishes tribal-court adjudicatory authority, even over the lawsuits involved in those cases. . . . Recognizing that our precedent has been variously interpreted, we reiterate that National Farmers and Iowa Mutual enunciate only an exhaustion requirement . . . . These decisions do not expand or stand apart from Montana's instruction on "the inherent sovereign powers of an Indian tribe."

3. Fisher Does Not Concern Concurrent State Jurisdiction

The majority states that the main issue in Fisher was "whether Montana had any basis to assert concurrent jurisdiction." But the word "concurrent" does not appear anywhere in the Fisher opinion.

Instead of indicating that it was envisioning a concurrent jurisdictional scheme, the Court stated that it was "appropriate to predicate jurisdiction on the residence of the litigants." Because "all parties resided on the reservation at all relevant times" the state court was without jurisdiction. This language contains no hint that the Supreme Court was contemplating a system of shared jurisdiction. To the contrary, the phrase "predicate jurisdiction on the residence of the litigants" fits squarely within the theoretical framework of the allocative principle — tribal jurisdiction if within Indian country and state jurisdiction if outside of Indian country.

Fisher's reliance on and citations to DeCoteau also indicate that Fisher's focus was determining whether the state or tribe had exclusive jurisdiction. Both cases centered on the same issue — whether the state or tribal court had jurisdiction over an Indian child custody dispute. Footnote 2 of DeCoteau is an explicit statement that the Court viewed the jurisdiction in that case to be exclusive. Nothing in Fisher, which was decided only one year after DeCoteau, signals a change to a system of concurrent jurisdiction.

E. Other Case Law

In an attempt to illustrate the principle that tribal courts, outside of Indian country, can predicate jurisdictional authority over members and nonmembers on nothing more than the tribe's inherent sovereignty powers, the majority cites two Supreme Court tax cases, Oklahoma Tax Commission v. Sac and Fox Nation, and Oklahoma Tax Commission v. Chickasaw Nation. But the majority does not rely on what the Supreme Court actually held in these cases. Sac and Fox Nation held that Oklahoma's income tax did not apply to tribal members earning income from tribal employment within Indian country who also resided within Indian country. The Court also held that Oklahoma's vehicle and excise tax and registration fees did not apply to tribal members living in Indian country. Chickasaw Nation held that the State of Oklahoma may tax the income of Indian tribal members who work for the tribe in Indian country, but reside outside of Indian country. The Court also held that Oklahoma could not tax motor fuel sold by the tribe within Indian country. Thus, these cases illustrate the continued importance of whether a case arises in Indian country in delineating the proper allocation of tribal and state power.

Despite the holdings in Sac and Fox Nation and Chickasaw Nation, which do not support today's decision, the majority, through the use of pliable phrases like "the Court implied" or the cases "suggest," argues that these cases support its decision. The majority goes so far as to argue that "[b]y deliberately leaving the door open for tribal governments to conduct internal self-governance functions in the absence of Indian country, Chickasaw Nation and Sac and Fox Nation suggest that Northway Village has jurisdiction to hear this [child custody] dispute[.]"

The dicta in these cases do suggest that it is an open question whether a tribe in the exercise of inherent sovereignty may tax income earned from tribal employment in Indian country by members who do not reside in Indian country. Perhaps this also suggests the possibility that there are other powers derived from inherent sovereignty which extend beyond the boundaries of Indian country. But we know because of Fisher and DeCoteau that the power to decide child custody cases is not among such powers. Thus, with regard to jurisdiction to hear child custody cases arising outside of Indian country, Fisher and DeCoteau have already shut the door the majority maintains is still "open."

VII. Executive and Statutory Authority Relied on by the Majority

As the discussion above demonstrates, substantial case law from the United States Supreme Court establishes the allocative principle. Outside of Indian country, this principle provides that absent "express federal law to the contrary," "beyond reservation boundaries" Indians "have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the state." Since there is no express federal law that grants the Northway tribal court jurisdictional authority over the custody dispute in this case, it should follow, because the dispute arose outside of Indian country, that Northway is without jurisdiction. But the majority finds that "the intent of the Executive Branch" and "federal statutes" is to grant the Northway tribal court jurisdictional authority in the present case, despite the absence of Indian country. As shown below, neither the intent of the executive branch nor any federal statute legitimizes or supports the majority's decision.

A. Executive Advocacy as to the Extent of Tribal Court Jurisdiction Is Not Entitled to Special Deference

The majority states that "since this court defers to determinations of tribal status by the Executive Branch or by Congress, we similarly accept their conclusion that, even after ANCSA, federally recognized Alaska Native tribes like Northway Village retain sovereignty to adjudicate domestic disputes between members." While it is true that we give conclusive deference to the determinations of Congress on all matters of federal law, Congress has not concluded that Alaska tribes have authority to adjudicate child custody cases arising outside of Indian country.

It is also true that tribal recognition by the Department of the Interior is given conclusive deference as a non-justiciable political question, presumably because the Department has been delegated authority by Congress to make such a determination. But it does not follow that we give similar deference to the executive branch on questions concerning the extent of tribal authority. In fact, we do not.

Only Congress can prescribe the allocation of authority between tribes and states. Once tribal status has been granted, the executive's role in disputes concerning tribal and state power is usually that of an advocate. While executive recognition of tribal status is non-justiciable, executive advocacy concerning tribal power is not similarly conclusive. To the contrary, in numerous disputes involving the extent of tribal court jurisdiction, the Supreme Court has rejected arguments by the executive branch that urged an expansion of tribal authority. Thus, the majority opinion is wrong in stating that we must accept the Department of Justice's arguments on tribal court jurisdiction in this case in the same way that we are bound to accept the Interior Department's determination of tribal status.

B. Statutory Analysis

The majority does not acknowledge or apply the "general rule" that, absent "express federal law to the contrary," tribal authority does not extend beyond Indian country. However, the majority does hold that "the intent of Congress, as revealed by the Tribe List Act, ICWA, and the Tribal Justice Act," bestows upon Alaska Native tribal courts the jurisdictional authority to hear child custody disputes arising outside of Indian country. None of the statutes relied upon by the majority grants to tribal courts jurisdiction over child custody cases between parents not arising in Indian country. None is therefore the "express federal law" needed to overcome the presumption against tribal adjudicatory authority outside of Indian country which should control this case.

1. The Canon of Construction Favoring Native Americans Is Inapplicable to This Case

In analyzing the statutes upon which it relies, the majority uses the canon of construction that requires courts to "resolve ambiguities in statutes affecting the rights of Native Americans in favor of Native Americans." However, it is not at all clear to which statute the majority is applying the canon. There is no statute that the majority cites that can be said, even ambiguously, to bestow concurrent jurisdiction on tribal courts in Alaska.

Further, the canon does not apply for another reason. The parties to this dispute are Anita John and John Baker, both of whom are Native Alaskans. The Native Village of Northway is an amicus curiae. Baker does not want the Northway tribal court to have jurisdiction in this case, in part because he believes that his rights and the rights of his children will be adversely affected by the assumption of jurisdiction by the tribal court. Yet, the majority applies its assumption "in favor of Native Americans" for John and the Northway tribe at the expense of Baker. Since Native Alaskans are on both sides of the case, the canon should apply to both, or neither. Either way, it is a non-factor.

The Supreme Court in Northern Cheyenne Tribe v. Hollowbreast has recognized this. The Court stated that when a suit involves the competing interests of tribes and tribal members the canon of construction favoring Indians "has no application."

2. ANCSA

The majority states that "ANCSA itself . . . support[s] Northway's jurisdiction over child custody matters." In fact, ANCSA makes clear that of all the things it was intended to do, expanding tribal court jurisdiction in Alaska was not one of them. As demonstrated in Section II of this dissent, Alaska Natives have always been subject to the same laws as non-Natives, administered only by territorial and state courts open to both Natives and non-Natives. ANCSA rejected any notion that it should be interpreted as expanding tribal court jurisdiction or Native sovereignty in any way: "Congress finds and declares that — the settlement [of Native Alaskan land claims] should be accomplished rapidly . . . without establishing any permanent racially defined institutions, rights, privileges, or obligations . . . ."

Still, the majority proceeds from the premise that "Congress did not intend for ANCSA to divest tribes of their powers to adjudicate domestic disputes between members." Thus, the majority's approach is to look at Congress's intent in ANCSA and ask whether Congress in abolishing reservations and reserves intended to take away important aspects of tribal sovereignty. My view is different. The consequences that flow from the revocation of reserves and reservations by ANCSA are the same as the consequences which would result from the revocation of Indian country with respect to any tribe in the United States. That is why Fisher and DeCoteau are so persuasive with regard to this case.

The Supreme Court's decision in Venetie II vindicates my approach. That decision shows that the revocation of reservations and reserves by ANCSA had the same meaning as the revocation of Indian country elsewhere. For example, the power to tax is an inherent tribal power. But the ruling in Venetie II was that because ANCSA revoked the Venetie reserve and did not create new types of Indian country, the village of Venetie could not exercise that power. The Court said that Indian country as defined in 18 U.S.C. § 1151 "generally applies to questions of civil jurisdiction such as the ones at issue here. See DeCoteau v. District County Court for the Tenth Judicial Dist., 420 U.S. 425, 427 n. 2 (1975)." This is important for two reasons. First, it is a statement that the existence or nonexistence of Indian country is determinative of "questions of civil jurisdiction" in Alaska and elsewhere. Second, because the language "such as the ones at issue here" is followed immediately by the citation to DeCoteau Footnote 2, it analogizes the issue in Venetie II — the inherent power and jurisdiction to tax — with the issue in DeCoteau Footnote 2 — the inherent power and jurisdiction over child custody disputes. The consequence of the tribe's loss of Indian country in DeCoteau was that the tribe lost the power to adjudicate tribal child custody disputes arising in what was no longer Indian country. Venetie II's citation to Footnote 2 of DeCoteau makes clear that the Supreme Court had the analytical framework of DeCoteau in mind when the Court examined tribal power, post-ANCSA, in Alaska.

3. The Tribe List Act

Although the Tribe List Act formally recognizes Alaska Native villages as tribes, it does not in any way expand tribal powers. Rather, as the Department of the Interior explained, Native villages in Alaska "have the right, subject to general principles of Federal Indian law, to exercise the same inherent and delegated authorities available to other tribes . . . ." General principles of federal Indian law would have prevented the Northern Cheyenne tribal court in Fisher from assuming jurisdiction over a child custody dispute between tribal members had that dispute arisen outside of Indian country. Similarly in DeCoteau, general principles of federal Indian law dictated that a South Dakota court rather than the Sisseton-Wahpeton tribal authorities had jurisdiction over the children there involved because the tribe's reservation had been terminated. Because the same general principles apply to the present case, the result here should be that the Northway tribal court lacks jurisdiction. The addition of Alaska Native villages to the Tribe List Act does nothing more than confirm the correctness of this result.

That special privileges were not intended to be granted Alaska Native tribes is also made clear by the House Report accompanying the Tribe List Act which states that the Act neither confers nor denies sovereignty. This report stated:

The Committee notes . . . that there is extensive litigation on the subject of the precise sovereign powers of Alaska Native Tribes. While these issues deserve further review by Congress, nothing in this Act should be construed as enhancing, diminishing, or changing in any way the status of Alaska Native Tribes. It is the intent of the Committee that its previous position taken in the 1987 amendments to the Alaska Native Land Claims Settlement Act be maintained and that nothing in this Act shall "confer on, or deny to, any Native organization any degree of sovereign governmental authority over lands . . . or persons in Alaska." P.L. 100-241, Section 2(8)(B). [This] Act merely requires that the Secretary continue the current policy of including Alaska Native entities on the list of Federally recognized Indian tribes which are eligible to receive services.

This language is plain: Congress did not intend the Tribe List Act to be a vehicle for expanding or diminishing tribal power. But the majority explicitly relies on the Tribe List Act as authority to change the allocation of jurisdictional authority over tribal children between tribal and state courts as laid out in decisions of the United States Supreme Court. Thus, the majority "construes" the Act in a way that Congress forbade — it uses the Act as a means to expand tribal jurisdictional authority.

4. The Tribal Justice Act

The majority's reliance on the Tribal Justice Act is equally unpersuasive. The Tribal Justice Act focuses primarily on establishing, organizing, and funding, within the Department of the Interior, the Office of Tribal Justice Support. The Act also establishes responsibilities, goals, and funding for the Secretary of the Interior in working toward the development and betterment of tribal justice systems. In its "Findings" the Act is protective of tribal rights that have already been established by Congress or the courts. But nothing in the Act extends or bestows any additional jurisdiction to tribal courts. And because neither Congress nor the Supreme Court has bestowed upon tribal courts the jurisdiction to hear child custody disputes not arising in Indian country between parents, neither does the Tribal Justice Act.

5. The Indian Child Welfare Act (ICWA) a. ICWA Should Not Be Extrapolated

ICWA does not apply to this case. The majority acknowledges this. Nevertheless, the majority relies on "the intent of Congress, as revealed by . . . ICWA" for its holding that the Northway tribal court has jurisdiction over the child custody dispute in this case. We have observed that "a statute may form the basis for a common law rule which applies beyond the prescribed scope of the statute." That observation was accompanied by a quotation from Moragne v. States Marine Lines, Inc., which indicates when a principle may be extrapolated from legislation and made a part of general decisional law and when extrapolation should not take place. The Supreme Court in Moragne stated:

The legislature does not, of course, merely enact general policies. By the terms of a statute, it also indicates its conception of the sphere within which the policy is to have effect. In many cases the scope of a statute may reflect nothing more than the dimensions of the particular problem that came to the attention of the legislature, inviting the conclusion that the legislative policy is equally applicable to other situations in which the mischief is identical. This conclusion is reinforced where there exists not one enactment but a course of legislation dealing with a series of situations, and where the generality of the underlying principle is attested by the legislation of other jurisdictions. On the other hand, the legislature may, in order to promote other, conflicting interests, prescribe with particularity the compass of the legislative aim, erecting a strong inference that territories beyond the boundaries so drawn are not to feel the impact of the new legislative dispensation.

Because Congress explicitly excluded from ICWA's coverage divorce proceedings and, as the majority points out, this exclusion was intended to encompass child custody proceedings between unmarried as well as married parents, ICWA presents a case in which Congress in recognition of conflicting interests has, to use the language of Moragne, "prescribe[d] with particularity the compass of the legislative aim, erecting a strong inference that territories beyond the boundaries so drawn are not to feel the impact of the new legislative dispensation."

Further, we have already held that the extrapolation method that the majority engages in today is inappropriate with regard to ICWA. In Catholic Social Services, Inc. v. C.A.A., we cautioned against interpreting ICWA in ways that extend it beyond its intended scope. In that case the superior court found that under ICWA an Indian child's tribe is entitled to notice of a proceeding for voluntary termination of parental rights, even though the statute itself contained no notice requirement. We reversed, holding that "[i]n enacting [ICWA], Congress has both created and defined tribal rights in adoption and termination proceedings. The provisions of the Act . . . define the scope of tribal rights. The Act strikes a balance between the sometimes conflicting interests of Indian parents, Indian children, and their tribes." Today the majority ignores Catholic Social Services' admonition that it is the business of Congress, not the courts, to create, define, and also limit the scope of tribal rights with regard to ICWA.

b. The Majority Decision Ignores Essential Protections Which Congress Built into ICWA

Moreover, even assuming that the majority is correct in its assumption that "the intent of Congress, as revealed by . . . ICWA," could apply to this case, the majority's decision would still be flawed. In enacting ICWA, Congress crafted two important protections relevant to this case which the majority's improvised extension of jurisdiction ignores.

First, ICWA provides that before tribes which became subject to state jurisdiction in P.L. 280 states can reassume jurisdiction they must obtain the approval of the Secretary of the Interior to a plan for the reassumption of jurisdiction. The regulations for reassumption of jurisdiction contain detailed provisions designed to insure that any tribe reassuming jurisdiction has an appropriately organized tribal court, and that there are clear procedures for identifying persons who will be subject to its jurisdiction. Further, notice of approval of a reassumption plan must include a clear description of the territory in which jurisdiction will be exercised.

Second, in ICWA cases which arise outside of Indian country tribal courts only have what is called "transfer jurisdiction." This jurisdiction can only be exercised with the consent of both parents. Thus it was the judgment and intent of Congress that tribal court jurisdiction should not reach beyond the boundaries of Indian country in ICWA cases unless both parents agree to the use of the tribal forum. The Department of the Interior guidelines for interpreting ICWA specifically refer to this provision as "an absolute veto power over transfers" to tribal courts by either parent. This power has a purpose which is critical in Alaska. It is to give to either parent of a child not living in Indian country the power to decide whether an adjudication of custody by a tribal court would be inappropriate because of the child's lack of contact with the tribe or its culture. The Interior Department discusses this point in its "Guidelines for State Courts":

The first four criteria in the earlier version were all directed toward the question of whether the child's connections with the reservation were so tenuous that transfer back to the tribe is not advised . . . . It is recommended that in most cases state court judges not be called upon to determine whether or not a child's contacts with a reservation are so limited that a case should not be transferred. This may be a valid consideration since the shock of changing cultures may, in some cases, be harmful to the child. This determination, however, can be made by the parent, who has a veto over transfer to tribal court.

The protections which Congress built into ICWA will not be available in cases decided under today's decision. There will be no advance review of the organization and function of tribal courts by an agency with the expertise and authority to conduct such a review. The territorial limits of tribal courts are not defined or established. And the vital parental veto power over tribal court jurisdiction, a power which can be exercised by either parent under ICWA, is simply dispensed with under today's decision.

The loss of these protections illustrates the danger of the extrapolative method used by the majority. Not only is the jurisdiction of tribal courts expanded to cases which Congress considered and excluded in enacting ICWA, but important protections which Congress built into ICWA do not survive in the majority's extension of jurisdiction.

Even if federal case law supported the majority's position, by holding that the inherent sovereign powers of tribes to "regulate internal domestic relations" between their members did extend beyond Indian country in child custody cases, the majority's decision today would still be erroneous because it extends the reach of this power to individuals who are not tribal members. There is no authority to expand a tribe's inherent powers in such a way.

A. Case Law: Tribal Inherent Sovereignty Powers Relate Only to Tribal Members

The Supreme Court cases that have analyzed the extent of inherent tribal sovereignty have stated that such power pertains to internal tribal matters and tribal members only. The majority recognizes, and even emphasizes, this. Thus, the Court in Montana v. United States stated: "[T]he powers of self-government . . . involve only the relations among members of a tribe . . . . Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members." The Supreme Court's "members only" emphasis in its discussions of inherent sovereignty has been purposeful, as was noted by the Court in Duro v. Reina: "[In] [o]ur discussion of tribal sovereignty in Wheeler . . . [w]e were consistent in describing retained tribal sovereignty over the defendant in terms of a tribe's power over its members." Thus, a tribal court's powers, deriving from its inherent sovereignty, generally do not extend to non-tribal members. This was made clear in Montana and reemphasized by the Court in Strate: "In the main, the [ Montana] Court explained, 'the inherent powers of an Indian tribe' — those powers a tribe enjoys apart from express provision by treaty or statute — 'do not extend to the activities of nonmembers of the tribe.'"

Throughout its discussion of inherent sovereignty, the majority relies on many of the cases cited above, such as Montana, Wheeler, and Reina, in support of its conclusion that the Northway tribal court has jurisdiction in this case. However, only near the end of opinion does the majority try to reconcile the fact that while the Supreme Court authority it relies upon to establish the concept of inherent sovereignty emphasizes inherent tribal powers over members, the dispute in this case is actually between a tribal member and nonmember.

The majority sidesteps this by announcing a new rule that is not based on supporting legal authority. That rule is: "Because the tribe only has subject matter jurisdiction over the internal disputes of tribal members, it has the authority to determine custody only of children who are members or eligible for membership." Thus, the majority authorizes tribal court jurisdiction over cases involving a member Native child where both parents are tribal members and where one parent is a tribal member and one is not.

In a child custody dispute, a court should have jurisdiction over the child and the child's parents or other custodians. The majority states that a tribe "only has subject matter jurisdiction over the internal disputes of tribal members." Where both parents are tribal members this condition is satisfied. But it is not satisfied when one of the parents is not a tribal member. Since "the powers of self-government . . . involve only the relations among members of a tribe" and since "Indian tribes retain their inherent power to . . . regulate domestic relations among members," it follows that jurisdiction based on inherent sovereignty cannot extend to disputes involving nonmembers. Accordingly, even assuming that a tribe's inherent powers extend to cases not arising in Indian country, the Northway court should not have jurisdiction in this case because its inherent power does not encompass authority over John, who is not a member of the Native village of Northway.

B. The Montana Exceptions Do Not Apply

The majority states that the consent of a nonmember parent may be an "alternative basis for tribal court jurisdiction in child custody cases." The majority cites Montana for this consent theory. But Montana does not support this theory.

The majority's cite to Montana references one of the two " Montana exceptions." Strate explains the two exceptions in the context of Montana: " Montana thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers" subject to "two exceptions." The two Montana exceptions, upon which the majority relies upon as authority to enable the Northway court to exercise inherent sovereign power over a consenting nonmember, are as follows:

[(1)] To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. [And, (2)] A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

Neither of the two Montana exceptions applies to this case because each specifically involves the exercise of inherent tribal power over nonmembers in Indian country. That is not the case here. Thus, the majority's claim that "federal law supports the determination that tribes have jurisdiction over consenting nonmembers in some situations" is only true in the limited context of nonmembers in Indian country. No Supreme Court case has held that outside of Indian country, a tribal court has the inherent power to exercise jurisdictional authority over a nonmember, consenting or otherwise. Because there is no authority to support an assertion of inherent tribal powers over nonmembers, this is another basis for holding that the Northway tribal court lacks jurisdiction in this case.

C. The Absence of Subject Matter Jurisdiction Cannot Be Waived

Consent in the context of this case is not effective for another reason. Whether a tribal court can hear cases not arising in Indian country between members and nonmembers is an issue of subject matter jurisdiction. The majority recognizes this. If, as I believe, the tribal court is not empowered to hear member versus nonmember cases because it lacks the power to do so, then it does not matter that the nonmember in this case consented to having the tribal court hear her case. The tribal court is still powerless to hear the case because the lack of subject matter jurisdiction cannot be waived.

D. Tribal Court Jurisdiction Over Nonmembers Denies Access to State Courts on the Basis of an Unpermitted Racial Classification

Not only do tribes not have inherent power over nonmembers outside of Indian country, but even if such powers were mandated by Congress, the exercise of such power over nonmembers would be constitutionally suspect racial discrimination. This is a complicated subject. It is not critical here because of John's consent. But it is likely to be raised in a variety of contexts in the future. In this dissent I will only highlight the issue by quoting from the Department of Justice's analysis of ICWA legislation when it was first drafted. It appears that the original version of ICWA did not provide for any type of parental veto over the choice of forum, as the law now does. This was a source of concern for the Department of Justice. Then-Assistant Attorney General, and now D.C. Circuit Judge, Patricia Wald, voiced these concerns in a letter to Representative Morris Udall, Chairman of the Committee on Interior and Insular Affairs:

The [ICWA] bill would appear to subject family relations matters of certain classes of persons to the jurisdiction of tribal courts which are presently adjudicated in State courts. The bill would accomplish this result with regard to three distinct categories of persons . . . . One class would be members of a tribe. Another class would be nontribal members living on reservations, and a third would be nonmembers living off reservations. These three classes would be denied access to State courts for the adjudication of certain family relations matters unless "good cause" is shown under section 102(c) of the bill.

The general constitutional question raised by [the bill] is whether the denial of access to State courts constitutes invidious racial discrimination violative of the fifth amendment. See Bowling v. Sharp, 347 U.S. 497 (1954).

. . . .

[T]here is little support for the constitutionality of this bill as applied to nontribal members living on reservations and the rationale applied by the [Supreme] Court in [ Morton v. Mancari, 417 U.S. 535 (1974) and Fisher v. District Court, 424 U.S. 382 (1976)], would not save the bill. The simple fact is that the parents of an Indian child may find their substantive rights altered by virtue of their Indian blood and the simple fact of residence on a reservation. The Court has never sanctioned such a racial classification which denied substantive rights, and we are unable to find any persuasive reason to suggest that it would do so.

Our conclusion with regard to nonmembers living on reservations is even more certain in the context of nonmembers living off reservations. In such a situation, we are firmly convinced that the Indian or possible non-Indian parent may not be invidiously discriminated against under the fifth amendment and that the provisions of this bill would do so.

IX. Court-developed Policy Arguments are an Inappropriate Basis Upon Which to Base Tribal Court Jurisdiction

The majority also reasons that the Northway tribal court should have jurisdiction in today's case based on the following rationale:

Tribal jurisdiction over child custody cases involving member children will further the goal under both federal and state law of best serving the needs of Native American children. . . . [T]he fact that many of Alaska's Native villages are located far from the courtrooms of our state trial courts limits our state judicial system's ability to respond to the needs of many Alaska Natives. . . . By acknowledging tribal jurisdiction, we enhance the opportunity for Native villages and the state to cooperate in the child custody arena by sharing resources. Recognizing the ability and power of tribes to resolve internal disputes in their own forums . . . can only help in the administration of justice for all.

This statement is a commendable declaration of policy. But the fact that this statement is just that — a declaration of court-made policy — raises fundamental issues about judicial restraint, separation of powers, and the role of the judiciary.

In Duro v. Reina, the Supreme Court held that a tribe's retained sovereignty did not include the authority to impose criminal sanctions on a nonmember Indian who had committed murder on the tribe's reservation. The Court made this holding despite a legitimate concern, voiced by a lower court, that to do so would create a "jurisdictional void" between federal and Indian crimes which might allow the defendant in this case to escape prosecution by either federal or Indian authorities. The Supreme Court, with Justice Kennedy writing for the majority, was unswayed by these arguments, but referred to them in the concluding paragraph of the opinion:

If the present jurisdictional scheme proves insufficient to meet the practical needs of reservation law enforcement, then the proper body to address the problem is Congress, which has the ultimate authority over Indian affairs. We cannot, however, accept these arguments of policy as a basis for finding tribal jurisdiction that is inconsistent with precedent, history, and the equal treatment of Native American citizens.

In an interesting postscript to this case, Congress passed a statute almost immediately after the Reina decision that corrected the problem of the "jurisdictional void." Thus, in that case, our system of separation of powers worked — the courts interpreted the law based on existing statutes and precedent, and Congress, persuaded by policy arguments that existing tribal jurisdictional schemes were inadequate, passed legislation to enhance tribal jurisdiction and rectify the problem.

Today, the majority attempts to short-circuit this system, by striking into an area — the expansion of tribal court jurisdiction based on policy arguments — that is solely the realm of Congress. If there is a need for out-of-Indian country tribal court jurisdiction in custody disputes between parents of Indian children, democratic processes are in place which can address this need. Alaska's Senators and Congressman are knowledgeable about and responsive to the needs of Alaska Natives. If there is a case to be made for expanded tribal court jurisdiction our Senators and Congressman are well-positioned to make an effective presentation. It is Congress, not this court, which is competent to decide what is needed and what limitations and protections are appropriate.

X. State Law Applies Outside Indian Country

The majority concludes that the tribal court may apply its own laws and customs in this case and implies that such tribal laws apply even if they conflict with state laws. The majority implies, incorrectly, that this has always been the case. But such a regime would be a radical departure from the past. Nevertheless, the majority supports this conclusion by relying on Santa Clara Pueblo v. Martinez, which held that tribes have the "power to make their own substantive law in internal matters, and to enforce that law in their own forums." But Santa Clara Pueblo is inapplicable to this case. That case involved a member of the Santa Clara Pueblo tribe and her children, all of whom lived and were raised on the Santa Clara Reservation. For that reason, the allocative principle favored tribal authority. By contrast, none of the events in the present case took place on reservation land or other Indian country, and therefore the allocative principle favors state authority. As I show below, the majority's conclusion ignores this important distinction and also conflicts with the purpose of P.L. 280 and its subsequent amendments.

A. Case Law

The discussion above in Part V of this dissent discusses the allocative principle in terms of whether the Northway tribal court or state court has jurisdiction in this case. This principle also applies to the determination of which law — state or tribal — applies to a given case regardless of which tribunal has jurisdiction. The plain language of the allocative principle makes this clear: "Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State." This has always been the case in Alaska. Thus, even if one assumes, as I do only for purposes of the discussion in this section, that the Northway court has jurisdiction in this case, it does not logically follow that tribal law controls. To the contrary, because this case arose outside of Indian country, the allocative principle requires the application of state, not tribal, law.

The argument, made by the majority, that the Supreme Court never contemplated applying the allocative principle to situations like those in Alaska where tribal membership has been separated from Indian country, is incorrect. Solem v. Bartlett did just that. Moreover, the tribe in DeCoteau had lost its reservation in much the way those tribes that had reserves in Alaska did, by an act of Congress. Yet the Supreme Court in DeCoteau confirmed the application of state law under the general allocative principle to a child custody case which involved tribal children residing within the boundaries of the former reservation but not in Indian country. And, in Venetie II, the Supreme Court confirmed the application of this principle in its most recent Indian law case arising from Alaska.

The Supreme Court also applied the allocative principle to Alaska Natives in Organized Village of Kake. There the Court noted that Kake Natives had not "been provided with a reservation," and there was "no statutory authority under which the Secretary of Interior might permit [Kake] to operate fish traps contrary to state law." Thus, the Court held that Alaska's fishing laws applied to the tribe. The interest in continuing the traditional use of fish traps was strong given that the Kake Indian community was "entirely dependent upon salmon fishing." Yet, this important interest had to give way to state law because the tribe did not reside on a reservation and no federal law expressly permitted it to ignore Alaska law. For similar reasons, because there is no statute authorizing tribal courts to apply tribal law to child custody disputes not covered by ICWA and not arising in Indian country, tribal custody laws must give way to state law if they conflict.

The majority's decision allowing tribal law, outside of Indian country, to trump state law simply ignores Kake, Mescalero Apache Tribe, DeCoteau, Solem, Venetie II, and the other cases that establish the principle that Indians outside of Indian country are subject to state laws.

B. Section 4 of Public Law 280 Requires that the Laws Applied in Tribal Court Must be Consistent with State Law

The majority's decision is also mistaken because it ignores section 4(c) of P.L. 280. This section states:

Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section.

The language of this statute is straightforward: In case of conflict between state and tribal law, P.L. 280 provides that state law governs.

To read this section as only applying to litigation in state courts would be erroneous because it would allow two sets of conflicting laws to govern the same transaction or occurrence. For example, state law prohibits custody preferences based on gender. The laws of some tribes may be to the contrary. They may, for example, employ the "tender years" presumption rejected by state law. As another example, state law provides that in a custody dispute between a parent and a non-parent, the parent is to be preferred absent a clear showing that parental custody will be harmful to the child. The laws of some tribes may be different. And as a third example, state law provides for scheduled child support to be paid by an obligor parent. Some tribes may not replicate this schedule.

If tribal laws provide for a particular custodial preference the litigant who will benefit by that preference will have a strong incentive to file in tribal court before his or her opponent files in state court. The reverse of course is also true. And if tribal courts are not bound by the state child support schedule and provide either lower child support or none at all, potential obligor parents will have a strong incentive to file their cases in tribal courts before potential obligees file in state court.

In my view, P.L. 280 clearly requires state law to govern in case of conflict between state and tribal law. The majority holds otherwise. Thus state law can be circumvented if one litigant files in tribal court before the other files in state court. Congress, in enacting P.L. 280, found that Indians would be benefitted by the "extension of State civil jurisdiction to" Indian country. With a goal of making Indians "truly first class citizen[s]," Congress "deemed desirable" the extension to reservations "the substantive civil laws of the respective states insofar as those laws are of general application to private persons or private property . . . ." It seems clear that the model Congress had in mind was that Indian country in P.L. 280 states would be governed by state laws of general application. By necessary implication, Congress must also have intended that state laws would govern outside of Indian country, and that there would not be, as the majority holds, sets of conflicting laws which can be selected by a litigant who wins a race to a courthouse.

C. The Rationale of Erie v. Tompkins

The majority's result also ignores the fundamental rationale of the landmark case, Erie Railroad Co. v. Tompkins. Erie overruled Swift v. Tyson, which held that federal courts, sitting in diversity, were not necessarily bound by the prior decisions of the courts of the states whose law was being applied. Rather, federal courts, in the interests of developing "general" federal law, could independently evaluate the state law at issue, even if that meant reaching a result different from that which a state court would reach.

In Erie, the Swift v. Tyson doctrine was abandoned, in part, because it made "rights enjoyed under the unwritten 'general law' vary according to whether enforcement was sought in the state or in the federal court" and it "had prevented uniformity in the administration of the law of the state." Thus, Erie's focus was on maintaining the uniformity of substantive law regardless of the forum chosen by the litigants. As Justice Frankfurter wrote in a later case: "The nub of the policy that underlies Erie R. Co. v. Tompkins is that for the same transaction the accident of a suit by [a party to the dispute] in a federal court instead of in a State court a block away, should not lead to a substantially different result."

The majority's decision allowing tribal law to trump state law creates the problem that Erie and its progeny sought to correct. When a marriage is breaking up, today's decision will create incentives for each party to the marriage to file first in the forum whose laws are thought to be more favorable. Again, it is very unlikely that Congress intended such a result, for it is difficult to see how any rational law-making authority could believe that it is desirable to permit conflicting laws to govern the same transaction.

XI. Conclusion

The majority's opinion today is very broad. (1) It holds that a tribe has jurisdiction to adjudicate child custody cases not arising in Indian country, contrary to the general principle that allocates functions between tribes and states, and contrary to two United States Supreme Court decisions which have stated that in custody cases tribal jurisdiction based on inherent sovereignty does not extend to cases not arising in Indian country. (2) In the face of many decades of contrary Supreme Court precedent, and without congressional authorization, it holds that Alaska Natives, outside of Indian country, are subject to tribal law, even if such laws conflict with those of the state. And (3) it gives tribal courts jurisdictional authority over any parent (tribal member or not, and Native Alaskan or not) of a child who is a tribal member or eligible for tribal membership. Given the large number of Native Alaskans in the state and the significant number of children born from marriages and relationships between Natives and non-Natives, the number of Alaskan citizens who will find themselves subject to mandatory tribal court jurisdiction is very large.

Today's decision also raises many more troubling questions than it answers. I mention just a few.

(1) What type and kind of tribal court will be empowered to exercise the authority conferred by today's decision? The majority speaks about tribal courts as if they are all the same. They are not. Indeed, they are markedly different in terms of structure, size, expertise, and experience. Sovereign status was extended, via the Bureau of Indian Affairs Tribal Recognition List, to 226 Native entities in Alaska. Will all such sovereigns exercise tribal court functions? Even those villages with populations of fewer than fifty people?

(2) Tribal courts are not bound by the United States Constitution. As Justice Stevens noted in Merrion v. Jicarilla Apache Tribe, "Tribes may enforce discriminatory rules that would be intolerable in a non-Indian community. The equal protection components of the Fifth and Fourteenth Amendments, which limit federal or state authority, do not similarly limit tribal power." What rules will apply to consenting nonmembers, or nonconsenting nonmembers?

(3) The Supreme Court has held that the powers "to tax," "to prescribe and enforce internal criminal laws," "to regulate domestic relations among members," and "to prescribe rules of inheritance for members," all derive from a tribe's inherent sovereign power. Today, the majority holds that the child custody component of the domestic relations power extends beyond Indian country. Does it logically follow from today's decision that tribal criminal and tort law will follow members outside of Indian country? Can a village council on the Tanana River exercise its sovereign powers to prescribe rules of inheritance for its members, including those who live in Anchorage or Los Angeles, or London? What are the geographical limits, if any, to the "membership sovereignty" that the majority recognizes today? And what contacts suffice to give a tribal court personal jurisdiction?

(4) More Native Alaskans live in, or within easy driving distance of, cities served by superior courts than live in villages distant from superior courts. And many Native Alaskans live very far from the villages with which they are associated. For example, about one-fifth (more than 20,000) of all resident Native Alaskans live in the Municipality of Anchorage. By making these Native Alaskans subject to the jurisdiction of distant village tribal courts, will today's decision create the very problem the majority believes it is solving — namely, the problem of requiring Native Alaskans to travel long distances to have their custody disputes adjudicated? And will the interests of children born and raised, for example, in Anchorage be best served if their child custody cases take place in tribal courts in distant villages about which they know little or nothing? Indeed, will the interests of Native children, no matter where they reside, be best served if their non-custodial parents are allowed by a tribal court order to pay child support that is significantly less than they would pay under Alaska Civil Rule 90.3?

I do not know the answers to these questions. One thing that I am sure of, however, is that the ramifications of this case will be felt for many years. Confusion and litigation will proliferate as state and tribal courts try to work out the consequences of this opinion.

Finally, it is important to note what this case is ultimately about — the balance of tribal and state power within Alaska. As Chief Justice Rehnquist stated in Washington v. Confederated Tribes of the Colville Indian Reservation, "[a]t issue here is not only Indian sovereignty, but also necessarily state sovereignty as well." The plenary power of the state under the Alaska Constitution is asserted by a system of uniform laws applied equally to all citizens, and by state courts which "shall constitute a unified judicial system . . . ." The result in this case cannot pass muster under the Alaska Constitution unless mandated by federal law. Reduced to its essence the question here is whether under the circumstances of this case the laws of the United States require that the plenary power of the state give way to tribal power. The answer given by the majority is "yes." Appropriate regard for the Alaska Constitution requires that such an answer not be given unless there are federal laws which require a cession of state authority. Because such laws do not exist, I respectfully dissent.

ADDENDUM: P.L. 280 HISTORY AND ANALYSIS

I. P.L. 280: Introduction ........................................ 805 A. P.L. 280 and Amendments .................................... 805 B. The Supreme Court and P.L. 280 ............................. 808

II. P.L. 280 As Amended Conferred Exclusive Jurisdiction ........... 809 A. The 1970 Amendment to P.L. 280 ............................. 809 B. Contemporaneous Administrative Construction ................ 811

III. Conclusion ..................................................... 813

I. P.L. 280: Introduction

After briefly discussing Public Law (P.L.) 280 and Native Village of Nenana v. State, Department of Health Social Services, the majority concludes that "it is neither necessary nor appropriate at this time to reach the question of whether Nenana and its progeny were wrongly decided." The majority then notes that its decision today "creates a disjunction in Indian law jurisprudence" because it leaves tribes without Indian country with greater powers than those with Indian country. Because the appellant and amici urge us to overrule the Nenana line of cases and because I believe that courts, including this one, will soon be required to address the disjunction mentioned by the majority, I set forth my views on this issue. For the reasons outlined below, I continue to believe Nenana properly held that P.L. 280 granted states exclusive jurisdiction in child custody matters.

A. P.L. 280 and Amendments

P.L. 280 was enacted in 1953 and amended in 1958 and 1970. Because sections of P.L. 280 are interrelated, I have set out the text of the act in the margin.

P.L. 280 conferred criminal and civil jurisdiction on five "mandatory" states: California, Minnesota, Nebraska, Oregon, and Wisconsin. Section 2, the criminal portion, provided that each state would have

jurisdiction over offenses committed by or against Indians in the areas of Indian country . . . to the same extent that such State has jurisdiction over offenses committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country as they have elsewhere within the State.

Section 4 conferred civil jurisdiction:

Each of the States listed . . . shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed . . . .

Section 4 also provided that state civil laws of general application should apply in Indian country as they do elsewhere:

those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State . . . .

Important provisos were added by subsections (b) and (c) of section 4. Subsection (b) emphasized that alienation or taxation of trust or restricted property was not authorized. Under subsection (c), tribal ordinances or customs were to be given effect in the adjudication of civil cases "if not inconsistent with any applicable civil law of the State . . . ."

Comprehensive congressional reports accompanied P.L. 280. The essence of the legislative history is contained in three paragraphs in the Report of the House Committee on Interior and Insular Affairs, which was subsequently incorporated into the Senate Report:

Need for such legislation on a general, rather than limited basis is grounded on the following: These States lack jurisdiction to prosecute Indians for most offenses committed on Indian reservations or other Indian country, with limited exceptions. The appli cability of Federal criminal laws in States having Indian reservations is also limited. The United States district courts have a measure of jurisdiction over offenses committed on Indian reservations or other Indian country by or against Indians, but in cases of offenses committed by Indians against Indians that jurisdiction is limited to the so-called 10 major crimes: murder, man slaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny.

As a practical matter, the enforcement of law and order among the Indians in the Indian country has been left largely to the Indian groups themselves. In many States, tribes are not adequately organized to perform that function; consequently, there has been created a hiatus in law-enforcement authority that could best be remedied by conferring criminal jurisdiction on States indicating an ability and willingness to accept such responsibility.

Similarly, the Indians of several States have reached a stage of acculturation and development that makes desirable extension of State civil jurisdiction to the Indian country within their borders. Permitting the State courts to adjudicate civil controversies arising on Indian reservations, and to extend to those reservations the substantive civil laws of the respective States insofar as those laws are of general application to private persons or private property, is deemed desirable.

In 1958, P.L. 85-615 extended both the criminal and civil provisions of P.L. 280 to "all Indian country" within Alaska. Three paragraphs from the Report of the Senate Committee on Interior and Insular Affairs distill the reasons for this amendment:

One of the needs for the enactment of the proposed legislation is due to a decision of the United States District Court for the District of Alaska in the cases of In re McCord (No. A-13,363) and In re Nickanorka (No. A-13,364), wherein the defendants were charged with statutory rape under the Territorial law of Alaska. The court held (1) that the Territorial law did not apply because the incident occurred in Indian country and (2) that the Federal law mentioned above and popularly referred to as the Ten Major Crimes Act ( 18 U.S.C. § 1153) did not apply because statutory rape is not included in the Federal crime of rape. The defendants were therefore released.

In construing the Federal statute the court also decided that the native village of Tyonek, Alaska, where the rape occurred, came within the definition of Indian country. Such a construction affects a large number of other native villages in Alaska similarly situated. The committee has been advised that these native villages do not have adequate machinery for enforcing law and order. They have no tribal court, no police, no criminal code, and in many instances no formal organization. This is for the reason that the Territorial government in Alaska has maintained law and order in the native villages as well as in the rest of Alaska and the native tribal councils have had no reason to nor have they ever exercised these functions. Since the natives are not prepared to take over these activities, the recent court decision has left the villages and the people without protection. The instant legislation seeks to remedy this situation by restoring what, until the court decision, was the actual practice in the enforcement of the law in the Indian country in Alaska.

The bill also extends the Territorial law of Alaska to Indian country with regard to civil matters. This action is consistent with previous enactments of Congress, as in the case of Public Law 280, 83d Congress, whereby criminal and civil jurisdiction over Indian country within the States of California, Minnesota, Nebraska, Oregon, and Wisconsin was transferred to those States.

In 1970 Congress again amended P.L. 280 by enacting P.L. 91-523. P.L. 91-523 excepted the Metlakatla Indian community from the area of Indian country subject to the exclusive criminal jurisdiction of Alaska, changing 18 U.S.C. § 1162(a) (section 2 of P.L. 280). And it described the Indian country subject to the criminal jurisdiction of the mandatory states as "areas over which the several States have exclusive jurisdiction."

The legislative history of the 1970 amendment is extensive and I will discuss it at some length later in this addendum. It suffices for purposes of this introduction to quote the one sentence "Purpose" section of the House Report:

The purpose of the proposed legislation is to amend section 1162 of title 18, United States Code, by adding language permitting the Metlakatla Indian community on the Annette Islands in Alaska to exercise jurisdiction over minor offenses concurrent with the State of Alaska.

B. The Supreme Court and P.L. 280

In Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, the Supreme Court declined to address the question of whether P.L. 280 conferred exclusive or concurrent jurisdiction on the states. Nevertheless, the Court has made statements suggestive of exclusive state jurisdiction. For example, in Yakima Indian Nation, the state of Washington enacted a law whereby it assumed "[f]ull criminal and civil jurisdiction to the extent permitted by Pub.L. 280" but which only "extended to all fee lands in every Indian reservation and to trust and allotted lands therein when non-Indians were involved." In analyzing the effect of this statute, the Court stated that "[s]tate jurisdiction is complete as to all non-Indians on reservations and is also complete as to Indians on nontrust lands [on the reservation]."

Earlier, in Organized Village of Kake v. Egan, the Supreme Court apparently endorsed the view that P.L. 280 granted exclusive jurisdiction to the states:

In 1953 Congress granted to several States full civil and criminal jurisdiction over Indian reservations, consenting to the assumption of such jurisdiction by any additional States making adequate provision for this in the future. 67 Stat. 588, 18 U.S.C. § 1162, 28 U.S.C. § 1360. Alaska was added to the list of such States in 1958, 72 Stat. 545. This statute disclaims the intention to permit States to interfere with federally granted fishing privileges or uses of property.

The words "complete" in Yakima Indian Nation and "full" in Kake are terms most logically associated with exclusive, rather than concurrent, jurisdiction.

Further, in Solem v. Bartlett, the court strongly implied that state criminal jurisdiction is exclusive, rather than concurrent, with tribal jurisdiction, stating that: "[Within Indian country] Tribes exercise concurrent jurisdiction over certain minor crimes by Indians, 18 U.S.C. § 1152, 1153, unless a State has assumed jurisdiction under § 1162 [P.L. 280 § 2]."

The Court also addressed the extent of state civil jurisdiction under P.L. 280 in Bryan v. Itasca County and California v. Cabazon Band of Mission Indians. According to the Court, section 4 of P.L. 280 was "primarily intended to redress the lack of adequate Indian forums for resolving private legal disputes between reservation Indians." The Court stated clearly that this jurisdiction did not include the power to tax or "general civil regulatory authority"; however, section 4 of P.L. 280 did "grant States jurisdiction over private civil litigation involving reservation Indians in state court[s]." Authority over private civil litigation is the issue in the present case.

II. P.L. 280 As Amended Conferred Exclusive Jurisdiction

In Native Village of Nenana v. State, Department of Health Social Services, we held that P.L. 280 grants Alaska exclusive jurisdiction to adjudicate cases involving the custody of Native children. The issue arose in the context of a child-in-need-of-aid proceeding in which the village of Nenana sought to transfer jurisdiction from the state court under the Indian Child Welfare Act. Under section 1918(a) of that act, "any Indian tribe which became subject to State jurisdiction pursuant to" P.L. 280 "may reassume jurisdiction over child custody proceedings." However, reassumption is permitted only if the tribe presents "a suitable plan to exercise such jurisdiction" to the Secretary of the Interior and the Secretary approves the plan. No reassumption plan had been approved for Nenana, but Nenana argued that this was unnecessary because P.L. 280 did not preempt its jurisdiction and that it continued to have concurrent jurisdiction with the state over children's matters. We rejected this contention and concluded that "Congress intended that Public Law 280 give certain states, including Alaska, exclusive jurisdiction . . . ." We followed Nenana in In re K.E. and In re F.P.

I believe Nenana, K.E. and F.P. were correctly decided. Congress in 1970 explicitly described the Indian country subject to state jurisdiction under P.L. 280 "as areas over which the several States have exclusive jurisdiction." The 1970 amendment was consistent with the prior text of P.L. 280 which the Department of the Interior interpreted as bestowing exclusive jurisdiction on the states.

A. The 1970 Amendment to P.L. 280

In 1970 Congress enacted P.L. 91-523, which amended the codification of P.L. 280 set out in 18 U.S.C. § 1162. The area of Indian country in which the State of Alaska was granted criminal jurisdiction was changed in section 1 from "all Indian country" to "[a]ll Indian country within the State, except that on Annette Islands, the Metlakatla Indian community may exercise jurisdiction over offenses committed by Indians in the same manner in which such jurisdiction may be exercised by Indian tribes in Indian country over which State jurisdiction has not been extended." This language contrasts with the exceptions for reservations pertaining to other states in section 2 of P.L. 280. For example, in Minnesota the Indian country affected is "all Indian country within the State, except the Red Lake Reservation." The reason for the difference was well considered. On excepted reservations, such as Red Lake, the writ of state law under P.L. 280 did not run. With respect to Metlakatla, Congress intended that state law would continue to apply but that the Metlakatla Indian community would have concurrent jurisdiction over those offenses committed by Indians which would be within the jurisdiction of tribes located in areas where P.L. 280 does not apply.

This amendment is important because it recognizes that the Metlakatla community lacked concurrent jurisdiction prior to the amendment. This, in turn, represents a recognition of pre-amendment exclusive jurisdiction in the state. Although the amendment affected only criminal jurisdiction, the language of section 2 of P.L. 280, conferring criminal jurisdiction on the states, and section 4 of P.L. 280, conferring civil jurisdiction on the states, is parallel. Section 2(a) provides: "Each of the States listed in the following table shall have jurisdiction over offenses . . . to the same extent that such State has jurisdiction over offenses committed elsewhere within the State." The language of section 4(a) is: "Each of the States listed in the following table shall have jurisdiction over civil causes of action . . . to the same extent that such State has jurisdiction over other civil causes of action . . . ." In view of these similarities it is impossible to conclude that Congress intended to confer on the states exclusive criminal jurisdiction, but only concurrent civil jurisdiction. Indeed, the Department of the Interior reported to Congress with respect to the 1970 amendment that P.L. 280, when made applicable to Alaska, "acted to remove, with limited exceptions, the civil and criminal jurisdiction for law and order purposes previously held by the Indian and native groups and the Federal Government." The first section of the 1970 amendment thus reflected Congress's belief that P.L. 280, as applied to Alaska, granted exclusive jurisdiction to the state.

Section 2 of the 1970 amendment reflects more than merely a belief of Congress:

Subsection (c) of section 1162 of title 18 United States Code, is amended to read as follows: "(c) The provisions of section 1152 and 1153 of this chapter shall not be applicable within the areas of Indian country listed in subsection (a) of this section as areas over which the several States have exclusive jurisdiction.

Prior to this amendment, subsection (c) of section 1162, a part of section 2 of P.L. 280, provided: "The provisions of sections 1152 and 1153 of this chapter shall not be applicable within the areas of Indian country listed in subsection (a) of this section." U.S.C. § 1152 extends the criminal laws of the United States to Indian country but does not apply to offenses committed by one Indian against another. U.S.C. § 1153 is the so-called Major Crimes Act which extends the criminal law of the United States to major felonies committed by one Indian against another in Indian country. Section 2 of the 1970 amendment was necessary because under section 1 Metlakatla remained Indian country covered by P.L. 280. But Congress wanted the Indian community to have concurrent jurisdiction with the state in that area. Congress therefore chose to define the remaining Indian country in Alaska covered by P.L. 280 and all Indian country in the other five states, except for the excepted reservations, as "areas over which the several States have exclusive jurisdiction."

This language is more than merely an expression of Congress's belief that P.L. 280 granted exclusive jurisdiction to the states; it ratifies that belief. It cannot be dismissed as merely the opinion of a later Congress concerning the meaning of a law passed by an earlier Congress. The later Congress changed the original act's language to both reflect and enact its belief. As such, P.L. 280 read in conjunction with its 1970 amendment more than adequately rebuts the presumption favoring tribal jurisdiction in Indian country because "Congress has expressly provided that State laws shall apply."

The 1970 amendment's importance should not be dismissed as merely the view of a subsequent Congress regarding the intent of an earlier one. In United States v. Philadelphia National Bank and South Dakota v. Yankton Sioux Tribe the Supreme Court observed that "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." The references in Yankton Sioux and Philadelphia National Bank were not amendatory to previous acts of Congress and are thus distinguishable from the present case. Moreover, in Bryan, a case that actually focuses on interpreting P.L. 280, the Supreme Court observed that "intervening" acts of Congress that are "intimately related" to jurisdictional issues of Indian law should be considered:

Title IV of the 1968 Act is intimately related to § 4, as it provides the method for further state assumptions of the jurisdiction conferred by § 4, and we previously have construed the effect of legislation affecting reservation Indians in light of "intervening" legislative enactments.

There is no question that P.L. 91-523, the 1970 amendment, is "intimately related" to P.L. 85-615, the 1958 amendment that added Alaska to P.L. 280. Its unambiguous purpose was to modify the 1958 amendment. As such, the 1970 amendment is particularly probative of Congress's intent in enacting P.L. 85-615.

B. Contemporaneous Administrative Construction

In determining a statute's meaning, courts will defer to the contemporaneous construction of the statute given by an agency charged with its administration. Contemporaneity of construction is important because often agency personnel have assisted in formulating the legislation and are thus knowledgeable of its intent and meaning. Interpretations which contradict contemporaneous interpretations, on the other hand, are entitled to little weight.

These principles apply to this case because the Department of the Interior, contemporaneously with the passage of P.L. 280 and for a long period of time thereafter, interpreted P.L. 280 as conferring exclusive jurisdiction on the states. A 1954 departmental opinion explained that P.L. 280 conferred exclusive criminal jurisdiction on the states. This confirmed an earlier departmental interpretation that the jurisdiction conferred by P.L. 280 was exclusive and which gave the following textual analysis for that conclusion:

Although there has been no interpretation of the act of August 15, 1953 (Public Law 280 — 83d Cong.), by the Federal courts, it is our view that the act, by providing that the State shall have jurisdiction over crimes and offenses committed by or against Indians in the Indian country to the same extent that the State has jurisdiction over crimes and offenses committed elsewhere within the State, except as limited in Section 2(b), made such jurisdiction of the State exclusive. The extent of the State's jurisdiction is full and complete and permits of no such jurisdiction by any other body save the Federal Government and subordinate agencies of the State itself. The act also explicitly states that the criminal laws shall have the same force and effect within Indian country as they have elsewhere within the State. The effect of this provision clearly is to extend both the substantive and procedural laws of the State to crimes committed by Indians. Thus, State law defines not only the criminal offenses against the State and the penalties therefor, but it also defines the courts in which and the manner in which persons accused of committing such offenses are to be tried.

These contemporaneous interpretations of exclusivity were published and thus known to Congress when it extended P.L. 280 to Alaska in 1958. As they were not addressed or changed, they were presumably approved by the 1958 Congress. The Senate Report accompanying the 1958 amendment states that under P.L. 280 "criminal and civil jurisdiction over Indian country within [the five mandatory states] was transferred to those States." As the primary meaning of "transfer" in this context is the conveyance of authority from one entity to another, the report suggests that the committee agreed with the Department's view that the state's jurisdiction was exclusive.

The Department continued to interpret P.L. 280 as vesting exclusive jurisdiction in the states into the 1970's. I have previously discussed the 1970 amendment to P.L. 280. The House Report regarding the 1970 amendment indicates a shared assumption by Commissioner Bruce of the Department of the Interior's Bureau of Indian Affairs and the House Judiciary Committee that P.L. 280 as applied to Alaska effectively eliminated all tribal jurisdiction over minor offenses. The report states that Metlakatla originally

had jurisdiction over minor criminal offenses under its federally recognized government. However, when the act of August 8, 1958 [applying P.L. 280 to Alaska] was passed giving Alaska jurisdiction over offenses by or against Indians in all Indian country within the Territory of Alaska, it had the effect of eliminating the legal basis for the jurisdiction exercised by the community over minor offenses. As Commissioner Bruce stated at the hearing, enactment of the bill would reinvest the Metlakatla Community Council with local legislative authority and police powers to enforce its laws over minor criminal offenses concurrently with the State.

A letter written by Undersecretary of the Interior Russell to the Senate Committee on the Judiciary concerning the 1970 amendment clarifies the Department's position on the transfer of exclusive jurisdiction and makes it clearly applicable to the civil as well as the criminal sections of P.L. 280:

Since 1958, the State of Alaska has had the responsibility for providing law and order services to Indians in the Indian country within its borders. The transfer of such jurisdiction to Alaska acted to remove, with limited exceptions, the civil and criminal jurisdiction for law and order purposes previously held by the Indian and native groups and the Federal Government. This bill would reinvest the Metlakatla Community Council with local legislative authority and police powers to enforce its law over minor criminal offenses concurrently with the State.

By 1978 the Department had changed its views. It began to regard P.L. 280 as a grant of concurrent jurisdiction to the state. In 1991 the Ninth Circuit adopted the same position.

I do not believe that P.L. 280 was designed to terminate Indian reservations or to eliminate all tribal authority. Tribal power granted by federal law over fish and game and trust property is specifically preserved under sections 2 and 4 of that act. But P.L. 280 was enacted in the heyday of what one authority has described as "the termination era" of 1945-1961. By contrast, the 1970's were part of a different trend in Indian law, "the self-determination era." This period is "characterized by expanded recognition and application of the powers of tribal self-government, and by the general exclusion of reservations from state authority." The 1978 departmental opinion should, therefore, be seen as consistent with the trends of the period during which it was issued. However, the earlier departmental opinions — those contemporaneous with the passage of P.L. 280 and its 1958 and 1970 amendments — were obviously more in tune with the Congresses which enacted and amended P.L. 280. As such, it is these departmental opinions which require our deference, not the later departmental opinions that contradict the contemporaneous interpretations of P.L. 280.

III. Conclusion

Congress in 1970 explicitly described the Indian country subject to state jurisdiction under P.L. 280 "as areas over which the several States have exclusive jurisdiction." This enactment was consistent with the text and the contemporaneous and long-standing interpretation of P.L. 280 by the Department of the Interior that the act bestowed exclusive jurisdiction on the states. For these reasons, I believe that Congress intended P.L. 280 as a grant of exclusive jurisdiction to the states. Accordingly, our decisions in Nenana, K.E., and F.P. were correct.