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Supreme Court orders state to enforce tribal child support orders as essential

  • Author: Lisa Demer
  • Updated: June 23, 2016
  • Published March 28, 2016

In a major decision on child support, the Alaska Supreme Court stopped a Parnell administration effort against tribal rights that lingered during Gov. Bill Walker's reign.

The court ruled unanimously Friday in a case going back to the beginning of the decade that tribes have authority over child support. The court directed the state to enforce tribal support orders like it does those issued by other states, even if one of the parents isn't a tribal member.

The decision written by Chief Justice Dana Fabe backs the authority of the Central Council of the Tlingit and Haida Indian Tribes of Alaska in hundreds of child support cases. It recognizes tribal jurisdiction over child support as a fundamental area of control, one that matters to the lives of children.

The case was the latest in a series of court battles from the Parnell years and earlier concerning tribal authority over the children of tribal members.

Every other state already recognizes and enforces tribal child support orders, according to the National Association of Tribal Child Support Directors, which filed a brief in support of the Tlingit and Haida Tribes.

"Child support orders are a pillar of domestic relations and are directly related to the well-being of the next generation," the Alaska Supreme Court order said.

In 2010, the Central Council successfully sued the state to force it to help with enforcement. The Supreme Court opinion upholds the 2011 ruling against the state by Juneau Superior Court Judge Philip Pallenberg, in which he said that ensuring child support "may be the same thing as ensuring that those children are fed, clothed and sheltered."

"I look at this case as a vestige of the Parnell administration," said Erin Dougherty Lynch, an Anchorage-based lawyer with the Native American Rights Fund who represented the national tribal child support group in the case. "But I also have high hopes that it ends here and it is not appealed to the United States Supreme Court."

By the time Walker took office in December 2014, legal briefs had already been filed and lawyers had already presented oral arguments before the Supreme Court. On Monday the state was still reviewing the 48-page ruling, but indicated the matter was now settled.

"Tribal child support authority has been in various stages of litigation since 2001. This decision will provide some much needed certainty in this area," the Walker administration said in a written response to questions.

The state has wrestled with tribal jurisdiction over child custody and child support for decades, sometimes taking a tribe's side and sometimes fighting it.

"The State's position on the nature and extent of tribal sovereignty has waxed and waned depending upon the politics of the day," Justice Daniel Winfree wrote in a separate concurring opinion in the child support case.

Since the 2011 Juneau Superior Court ruling, the state and the Central Council of Tlingit and Haida have worked together, and that will continue, the state said.

Creative orders

State cooperation is especially important in tribal cases because state governments have powers that tribes do not. Only a state can go after a parent's income tax refund, for instance. Tlingit and Haida negotiated an agreement with the state of Washington to do that. But other mechanisms require help from the state of Alaska, such as going after a reluctant parent's driver's license, Permanent Fund dividend or unemployment payment.

While states have additional enforcement tools, tribes can be more creative in their support orders than state courts and administrative agencies such as the Alaska Child Support Services Division.

Tribes can order a non-custodial parent to cut wood, help a child make tribal regalia or teach a Native language, said Lynch of the Native American Rights Fund.

Tribes try to make their orders achievable, but they also put a dollar value on the work that states can then use as a basis for getting money from parents who don't follow through, she said.

"They are very much for the benefit of the child. The court is really looking at keeping parents involved and active in the child's life," she said.

Central Council of Tlingit and Haida in 2007 began running the state's first federally funded tribal child support program after years of preliminary work.

The U.S. Justice Department jumped into the court case, as did the national tribal child support group. The federal child support program needs states, tribes and the federal government to work together and recognize each other's court orders.

"Alaska's blanket refusal to address the Tribe's child support orders reduces the impact and undermines the effectiveness of the federal support for the Tribe," the Justice Department said.

Around the country, about 60 federally funded tribal programs are in place. So far only two are in Alaska, the Central Council's and one run by the Aleutian Pribilof Islands Association, which says its goal is to help parents support "their children emotionally, socially, and economically using a holistic and flexible approach."

"It's been a while coming," Jessie Archibald, manager of the Central Councils tribal child support unit, said Monday of the decision from the state's high court.

State resistance

To ensure smooth handling of child support orders from other states -- or from tribes -- every state has passed similar legislation, the Uniform Interstate Family Support Act, a necessary step to get federal administrative aid.

But Alaska's version for years didn't include tribes within its definition of a state, according to the Supreme Court decision. Twice in 2008, the state of Alaska petitioned the federal government to let it exclude tribes, saying that tribal court orders from states with reservations or other forms of Indian country were covered under a different law. Only when the state was warned that its failure could cost it $60 million in federal money for child support and welfare was Alaska's law changed, according to the Justice Department. And even then, the state refused to enforce Central Council's tribal court orders until the 2011 ruling.

The state had argued it would be challenging to work with different tribes, which might have different approaches to child support, and hard to modify tribal support orders.

That doesn't matter, the Supreme Court ruled.

"Our decisions exploring the retained inherent self-governance powers of Alaska tribes contain no suggestion that the burden on state agencies associated with recognizing tribal authority is part of the analysis," the opinion said.

The Alaska Supreme Court justices split over whether they should have decided a side question. Fabe's opinion took on not only whether tribes have jurisdiction over child support, but also whether that extended to cases in which one parent was not a tribal member. The decision found the tribal authority was tied to the child's eligibility for tribal membership. But Justices Winfree and Craig Stowers, while agreeing that tribes have jurisdiction, disagreed on deciding that aspect.

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