John v. Baker

982 P.2d 738, 1999 Alas. LEXIS 123, 1999 WL 692604

• Court: Alaska Supreme Court
• Decided: September 8, 1999
• Docket: S-8099
• Status: Published

Opinions

OPINION

FABE, Justice.

I. INTRODUCTION

Seeking sole custody of his two children, John Baker, a member of Northway Village, filed a custody petition in the Northway Tribal Court. Anita John, the children’s mother and a member of Mentasta Village, consented to Northway’s jurisdiction. After the tribal court issued an order granting shared custody, Mr. Baker filed an identical suit in state superior court. Although Ms. John moved to dismiss based on the tribal court proceeding, the superior court denied the motion and awarded primary physical custody to Mr. Baker. Ms. John appeals, arguing that as a federally recognized tribe, North-way Village has the inherent sovereignty to adjudicate custody disputes between its members and that the superior court therefore should have dismissed the state case.

This appeal raises a question of first impression. We must decide whether the sovereign adjudicatory authority of Native tribes exists outside the confines of Indian country. After reviewing evidence of the intent of the Executive Branch, as well as relevant federal statutes and case law, we conclude that Native tribes do possess the inherent sovereign power to adjudicate child custody disputes between tribal members in their own courts. We therefore reverse and remand to the superior court to determine whether the tribal court’s custody determination should be recognized by the superior court under the doctrine of comity.

II. FACTS AND PROCEEDINGS

Anita John and John Baker are Alaska Natives; Ms. John is a member of Mentasta Village and Mr. Baker is a member of North-way Village. Although they never married, Ms. John and Mr. Baker had two children together: John Jr., born in July 1991, and Emmanuel, born in June 1992. The family lived together in Ms. John’s village until the parents ended their relationship in 1993. For the next two years, Ms. John and Mr. Baker cooperated in sharing custody of John Jr. and Emmanuel. This cooperation ended in July 1995 when Mr. Baker refused to return the children to Ms. John.

In July 1995 Mr. Baker filed a petition with the Northway Tribal Court requesting sole custody of John Jr. and Emmanuel. The tribal court sent a notice to the parties on August 10 informing them of their right to be present at the custody hearing, and both parents participated in the hearing held on August 29. At the conclusion of the hearing, Tribal Court Judge Lorraine Titus ordered the parents to share custody of the children on an alternating monthly schedule. Judge Titus stated, however, that this arrangement would be temporary and that she would reconsider the custody question in one year, before the oldest child entered school.

The parents followed the tribal court’s order from September to December, deviating from the alternating schedule only so that Ms. John could care for the children while Mr. Baker was serving a sentence for DWI. During these months Mr. Baker appealed to the tribal court to change its custody order, but the court denied his request. Dissatisfied with the tribal court’s custody determination, Mr. Baker filed a separate action in state court in December. In the affidavit accompanying the state complaint, required at that time under the Uniform Child Custody Jurisdiction Act (UCCJA),¹ Mr. Baker misled the superior court by stating that he was “unaware of any custody proceeding regarding the children, except as provided herein, in Alaska, or any other jurisdiction.”

Citing the tribal court proceedings, Ms. John filed a motion to dismiss the state court action. The superior court denied her motion. Ruling first that the Indian Child Welfare Act (ICWA)² did not apply to a custody dispute between parents, the court concluded that it had subject matter jurisdiction over the suit. The court then stated that even if the tribal court had concurrent jurisdiction, “the facts of this ease [would] require” superior court involvement. The court pointed to the state’s access to a child custody investigator and to the parents’ different tribal affiliations as facts justifying its involvement in the case.

The superior court’s initial temporary custody order was identical to the tribal court’s. The parties therefore continued with the alternating monthly custody schedule until April 1996, when the superior court altered its temporary order to give Mr. Baker primary custody. The superior court’s final order, entered after trial, maintained Mr. Baker as primary physical custodian and granted Ms. John visitation every other weekend during the school year and for at least eight weeks during the summer. Although it recognized that both parents had experienced problems with substance abuse in the past, the superior court found that Mr. Baker was in better control of his problems than Ms. John. In addition, the court stated that Ms. John needed to address other issues, such as her severe depression. Ms. John appealed to this court, arguing that the superior, court should have granted her motion to dismiss.

Shortly after we initially held oral argument in this appeal, the United States Supreme Court decided Alaska v. Native Village of Venetie Tribal Government (Venetie II ).³ We then requested supplemental briefing, asking the parties to address how the Venetie II decision affects the issues presented.

III. DISCUSSION

Resolving this appeal requires us to examine the nature and scope of Native American self-government in Alaska. We must decide whether Northway Village had the jurisdiction to adjudicate a custody dispute involving-children who are tribal members. If North-way possessed such jurisdiction, we must then decide whether the superior court should have dismissed Mr. Baker’s identical state suit.

In a line of decisions beginning with Native Village of Nenana v. State, Department of Health & Social Services,

4 and ending in In re F.P.,5 we held that Native villages in Alaska do not have the power to adjudicate some types of child custody disputes. Recognizing the existence of these precedents, Ms. John presents two alternative arguments for finding tribal jurisdiction in this case- First, she argues that we can rale in her favor without overruling Nenana and F.P. because those decisions do not apply to the facts of this appeal. Second, she contends that even if Nenana and F.P. do apply, we should reconsider their holdings. Ms. John claims that, regardless of whether they occupy Indian country, Alaska Native villages can adjudicate child custody disputes between members because of their status as federally recognized tribes.

Mr. Baker’s briefing focuses on perceived flaws in the tribal court’s decision in this case. He therefore claims that even if Northway Village generally has jurisdiction to decide child custody disputes between members, state courts should not recognize this particular decision because the proceedings violated due process and because his children are not members of Northway Village. We evaluate each of the parties’ arguments after discussing the relevant standard of review.

A. Standard of Review

We rely on our independent judgment to decide legal questions such as the scope of tribal court subject matter jurisdiction and the meaning of federal statutes.⁶ In exercising our independent judgment, we will adopt the rale of law that is most persuasive in light of precedent, reason, and policy.⁷

B. Our Prior Decisions on Tribal Court Jurisdiction to Decide Custody Disputes Do Not Apply to This Case.

Mr. Baker claims that the holdings in Ne-nana and F.P. compel the conclusion that Northway is without jurisdiction in this case. Although not conceding that these decisions apply to the facts before us, Ms. John asks us to reconsider the holdings of those decisions. All the amici, including the United States and the State of Alaska, join Ms. John in urging us to reconsider these decisions and recognize tribal court jurisdiction. Before we decide whether to re-examine our precedents, we must determine whether they apply to the facts before us. Accordingly, we begin our analysis with an examination of whether it is necessary that we revisit Nena-na and F.P. in order to decide this case.

Although the holdings in Nenana and F.P. touched upon the contours of tribal court jurisdiction, both of those decisions were rooted in a pair of federal laws that may not apply to the facts of the dispute between Ms. John and Mr. Baker: Public Law 280⁸ (P.L. 280) and the Indian Child Welfare Act (ICWA).⁹ If this case does not fall within the scope of either of those pieces of legislation, then the holdings in our prior decisions are not squarely before us today, and it may be unnecessary to reconsider them.

1. The holdings of Nenana and F.P.

Nenana and F.P. dealt with the qhestion of tribal court jurisdiction in cases falling under ICWA in Alaska. In Nenana, the village petitioned a superior court under ICWA to transfer a ehild-in-need-of-aid proceeding to the village’s jurisdiction.¹⁰ Interpreting ICWA, the superior court ruled that transfer was improper because the village had not petitioned the Secretary of the Interior to reassume jurisdiction over child custody proceedings.¹¹

In evaluating the arguments on appeal in Nenana, we first considered § 1918(a) of ICWA,¹² which states that any Indian tribe that became subject to state jurisdiction under P.L. 280 may “reassume” jurisdiction over child custody proceedings by petitioning the Secretary of the Interior.¹³ Public Law 280 is a federal statute that grants several states, including Alaska, jurisdiction over all civil and criminal matters arising in Indian country.¹⁴ In Nenana, we interpreted § 1918(a)’s reassumption requirement to mean that P.L. 280 had vested exclusive jurisdiction over child custody matters in state courts, and that the state exercised exclusive jurisdiction until a particular tribe successfully petitioned the Secretary of the Interior.¹⁵ Because the village of Nenana had not petitioned the Secretary of the Interior for reas-sumption, we affirmed the superior court’s denial of the petition for transfer.¹⁶

In F.P., we were asked to reconsider Ne-nana ⅛ holding in light of the Ninth Circuit’s decision in Native Village of Venetie I.R.A. Council v. Alaska (Venetie I ).¹⁷ The question before the Ninth Circuit in Venetie I was whether ICWA required the State of Alaska to recognize tribal court child custody determinations.¹⁸ The state argued that because P.L. 280 had granted state courts exclusive jurisdiction over all civil disputes, the villages could not exercise any child custody jurisdiction without first petitioning the Secretary of the Interior.¹⁹ The Ninth Circuit resolved the dispute by addressing two issues: first, “whether the native villages are inherently sovereign, at least insofar as domestic relations or child-custody issues are concerned,” and second, “whether Congress has stripped the villages of that aspect of sovereign authority which encompasses child-custody determinations.” ²⁰ Although suggesting that it saw no impediment to a finding of sovereignty, the court concluded that sovereign status depended on a factual analysis that should be conducted by the district court.²¹ It then held that P.L. 280 had not stripped the villages of sovereignty over child custody issues because it had granted the states only concurrent jurisdiction.²²

In F.P., we disagreed with the Ninth Circuit’s conclusions on both the issue of sovereignty and on the meaning of P.L. 280. Addressing the sovereignty question first, we stated that the Ninth Circuit’s “opinion is contrary to Native Village of Stevens v. Alaska Management & Planning,[23] where we concluded that ‘the history of the relationship between the federal government and Alaska Natives indicates that Congress intended that most Alaska Native groups not be treated as sovereigns.’ ”²⁴ Moving to the second step in the Venetie I analysis, we reiterated our view that P.L. 280 had granted the states exclusive jurisdiction over child custody matters, quoting from the portion of Nenana that interpreted ICWA’s § 1918(a).²⁵ We therefore reaffirmed our prior holding that tribal courts lack jurisdiction over child custody proceedings under ICWA until they successfully reassume jurisdiction by filing a petition with the Secretary of the Interior.²⁶

In sum, our decisions to limit tribal adjudicatory power in Nenana and F.P. turned on our interpretation and application of ICWA and P.L. 280. In order to determine if those decisions are controlling, then, we must examine whether those two federal laws similarly apply to the case presently before us.

2. ICWA does not apply to the dispute between Mr. Baker and Ms. John.

ICWA’s provisions, including the reassumption requirement of § 1918(a) that we interpreted in Nenana and F.P., apply only to “child custody proceedings” as defined by the statute.²⁷ ICWA’s § 1903 specifically excludes from this definition an award of custody to one of the parents in a divorce proceeding. Ms. John relies on this language to argue that ICWA is inapplicable to this dispute because it will result in a custody award to a parent. Thus, we must decide whether a custody battle between unmarried parents qualifies for the divorce exception to ICWA.²⁸

Congress’s intent in enacting ICWA suggests that the divorce exception should apply to this case. Congress created ICWA because it was alarmed by the number of Indian children removed by state agencies from their parents and tribes and placed into non-Indian homes.²⁹ In the policy declaration incorporated into ICWA itself, Congress stated that the statute’s dual purpose was “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.”³⁰ The legislative history emphasizes this dual purpose, stating that the statute “seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society.”³¹

The custody dispute between Ms. John and Mr. Baker raises neither of the concerns ICWA sought to address.' Whatever the outcome of the custody battle, John Jr. and Emmanuel will'continue to split their time between the homes of their Native parents and their Native villages. Because this case does not pose the possibility that the children will be removed from their parents or their tribes, ICWA’s exclusive jurisdiction provision as well as its intricate procedural guidelines’are unnecessary to protect the family’s or the tribes’ interests.

Specific legislative history also suggests that Congress intended the divorce exception to apply to any parental custody dispute. Commenting on a draft of ICWA, the Department of the Interior wrote to Congress suggesting that it create exceptions to the type of proceedings covered by the Act. Stating that the “protections provided by this act are not needed in proceedings between parents,” the Department of the Interior advocated for the divorce exception.³² Apparently agreeing with the Department’s view, Congress inserted the divorce exception into ICWA. The legislature’s decision to create the exception based on the Department’s opinion that ICWA’s protections were unnecessary in disputes between parents suggests that Congress intended for the exception to apply to all parental custody battles.

Relying on the legislative history, the Bureau of Indian Affairs has concluded that Congress intended for the divorce exception to apply to all “domestic relations proceedings ... so long as custody is awarded to one of the parents.”³³ Additionally, the courts that have considered the question have concluded that ICWA does not apply to disputes between unmarried parents.³⁴ Based on this case law, the conclusions of the Bureau of Indian Affairs, and the purpose of ICWA as expressed in its text and legislative history, we conclude that ICWA does not apply to this inter-parental custody dispute.³⁵

3. The Supreme Court’s decision in Ven-etie II suggests that P.L. 280 does not apply to Native tribes occupying Alaska Native Claims Settlement Act lands.

The United States Supreme Court’s recent Venetie II decision suggests that P.L. 280, which grants states jurisdiction over disputes in Indian country, has limited application in Alaska because most Native land will not qualify for the definition of Indian country.³⁶ By its very text, P.L. 280 applies only to Indian country.³⁷ If Northway Village does not occupy Indian country, then our rulings interpreting P.L. 280 are not germane to this appeal.

In Venetie II, the Supreme Court interpreted the Alaska Native Claims Settlement Act (ANCSA),³⁸ which resolved Native claims to Alaska land by instituting a novel form of Native land ownership.³⁹ Under this innovative scheme, Congress revoked all existing Indian reservations in Alaska but one, and extinguished all aboriginal title and claims to Alaska land.⁴⁰ In exchange, ANCSA entitled Native-owned, state-chartered regional and village corporations to receive approximately forty-four million acres of land and $962.5 million in monetary compensation.⁴¹

The Venetie II Court was faced with the question of whether ANCSA lands qualify as “Indian country” under a federal statute, 18 U.S.C. § 1151, defining the term. Under § 1151, three kinds of Native lands qualify as Indian country: Indian reservations under federal jurisdiction, Indian allotments, and “dependent Indian communities.” ⁴² ANCSA revoked all federal Indian reservations in Alaska but one.⁴³ The Supreme Court held in Venetie II that a village occupying ANCSA lands does not qualify for the “dependent community” definition of Indian country.⁴⁴ Venetie II’s holding, therefore, appears to undermine the Indian country claims of those Alaska villages, like Northway Village, that occupy ANCSA lands.⁴⁵ If Northway Village does not occupy Indian country as a result of Venetie II, then P.L. 280 has no direct relevance to this appeal.

We conclude, then, that neither ICWA nor P.L. 280 applies to the case before us. Since Nenana and the decisions that followed it were rooted in the application of these statutes, the rationale underlying those precedents is not specifically called into question today. We accordingly conclude that it is neither necessary nor appropriate at this time to reach the question of whether Nena-na and its progeny were wrongly decided.⁴⁶

We have determined that the central issue in this appeal — whether tribal courts have jurisdiction over non-ICWA child custody cases arising outside of Indian country — is not affected by our holdings in Nenana and F.P. To resolve it, we must instead explore the nature of tribal power under federal law.

C. Tribes without Indian Country Can Adjudicate Internal Child Custody Disputes.

Today we must decide for the first time a question of significant complexity and import: Do Alaska Native villages have inherent, non-territorial sovereignty allowing them to resolve domestic disputes between their own members? After examining relevant federal pronouncements regarding sovereign power, we hold that Alaska Native tribes, by virtue of their inherent powers as sovereign nations, do possess that authority.

1. We defer to Congress’s finding that Alaska Native tribes are sovereign powers under federal law.

We have previously held that tribal status is a non-justiciable political question.⁴⁷ We therefore will defer to the determinations of Congress and the Executive Branch on the question of tribal status.⁴⁸ If Congress or the Executive Branch recognizes a group of Native Americans as a sovereign tribe, we “must do the same.”⁴⁹

Prior to 1993, no such recognition of Alaska villages had occurred. In Native Village of Stevens v. Alaska Management & Planning,⁵⁰ we conducted an historical analysis and concluded that the federal government had never recognized Alaska villages as sovereign tribes.⁵¹ We relied on this analysis in F.P. to hold that Native villages lacked sovereignty.⁵²

In 1993, however, the Department of the Interior issued a list of federally recognized tribes that included Northway Village and most of the other Native villages in Alaska.⁵³ In the list’s preamble, the Department of Interior explained that it was issuing the list in order to clarify confusion over the tribal status of various Alaska Native entities. The Department believed that previous lists had been interpreted to mean that Native villages in Alaska, although qualifying for federal funding, were not recognized as sovereign tribes.⁵⁴ It sought to rectify this misunderstanding and to reaffirm the sovereign status of the recognized tribes. In particular, the Department emphasized that the list included those Alaskan entities that the federal government historically had treated as tribes.⁵⁵

The Department also suggested in the preamble that its decision to publish the list was based on a recent opinion by the Solicitor of the Department of Interior, Thomas Sansonetti.⁵⁶ In this opinion, Sansonetti evaluated the sovereign tribal status of Alaska Native villages, conducting the same historical analysis as did the Stevens court but reaching the opposite conclusion.⁵⁷ Although recognizing that Alaska Native villages differed in significant ways from the tribes in the Lower 48, the Solicitor concluded that, for the last half century, Congress and the Interior Department “have dealt with the Alaska Natives as though there were tribes in Alaska.”⁵⁸

The language in the preamble to the 1993 list unquestionably establishes that the Department of the Interior views the recognized Alaska villages as sovereign entities. The preamble affirms the Department’s view that federally recognized tribes possess governmental authority and autonomy stemming from their tribal status:

The Bureau of Indian Affairs ... [finds] that the villages and regional tribes listed below have functioned as political entities exercising governmental authority....

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The purpose of the current publication is ... to eliminate any doubt as to the Department’s intention by expressly and unequivocally acknowledging that the Department has determined that the villages and regional tribes listed below are distinctly Native communities and have the same status as tribes in the contiguous 48 states.... [T]he villages and regional tribes listed below are not simply eligible for services, or recognized as tribes for certain narrow purposes. Rather, they have the same governmental status as other federally acknowledged Indian tribes by virtue of their status as Indian tribes with a govemment-to-govemment relationship with the United States ... .[59]

And for those who may have doubted the power of the Department of the Interior to recognize sovereign political bodies, a 1994 act of Congress appears to lay such doubts to rest. In the Federally Recognized Tribe List Act of 1994,⁶⁰ Congress specifically directed the Department to publish annually “a list of all Indian tribes which the Secretary recognizes to be eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”⁶¹ The Department published tribal lists for 1995 through 1998,. all of which include Alaska Native villages such as North-way, based on this specifically delegated authority.⁶²

The text and legislative history of the Tribe List Act demonstrate that Congress also views the recognized tribes as sovereign bodies. In the Act’s findings section, Congress discusses the “sovereignty” of federally recognized tribes.⁶³ Similarly, the House report to the Act provides that federal recognition “institutionalizes the tribe’s quasi-sovereign status.”⁶⁴ - Acknowledging that federal recognition “is no minor step,” the report states that such recognition “permanently establishes a government-to-government relationship between the United States and the recognized tribe as a ‘domestic dependent nation.’ ”⁶⁵

Through the 1993 tribal list and the 1994 Tribe List Act, the federal government has recognized the historical tribal status of Alaska Native villages like Northway. In deference to that determination, we also recognize such villages as sovereign entities.

The fact that Northway Village is a federally recognized tribe answers only part of the question posed by this case. Alaska Native villages such as Northway are in a unique position: Unlike most other tribes, Alaska Native villages occupy no reservations and for the most part possess no Indian country. Mr. Baker and the dissent argue that the existence of tribal land — Indian country — is the cornerstone of tribal court jurisdiction and that Congress necessarily withdrew such jurisdiction from Alaska Native villages when it enacted ANCSA.

To evaluate this argument, we must decide how much authority tribes retain in the absence of reservation land. We must, in other words, determine the meaning of “sovereignty” in the context of Alaska’s post-ANCSA landscape by asking whether ANCSA, to the extent that it eliminated Alaska’s Indian country, also divested Alaska Native villages of their sovereign powers.

2. Tribes retain their sovereign powers to regulate internal domestic affairs unless Congress specifically withdraws their authority to act.

The extent of tribal self-government depends on the intent of Congress.⁶⁶ We begin our analysis of congressional intent with the established principle under federal law that “Indian tribes retain those fundamental attributes of sovereignty ... which have not been divested by Congress or by necessary implication of the tribe’s dependent status.”⁶⁷ The United States Supreme Court explained in United States v. Wheeler ⁶⁸ that this starting point stems from the fact that tribal governance predates the founding of our nation: “The powers of Indian tribes are, in general, inherent powers of a limited sovereignty which has never been extinguished. Before the coming of the Europeans, the tribes were self-governing sovereign political communities.... The sovereignty that the Indian tribes retain is of a unique and limited character.”⁶⁹

Modern tribal sovereignty is certainly not absolute; “[i]t exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, ... Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.”⁷⁰ In explaining this rule, the Supreme Court has articulated a core set of sovereign powers that remain intact even though Indian nations are dependent under federal law; in particular, internal functions involving tribal membership and domestic affairs lie within a tribe’s retained inherent sovereign powers.⁷¹

Alaska law, too, has long recognized that sovereign powers exist unless divested. For example, we stated in Ollestead v. Native Village of Tyonek⁷² that “the principle that Indian tribes are sovereign, self-governing entities” governs “all cases where essential tribal relations or rights of Indians are involved.”⁷³ We recognized then that “Indian affairs are subject to state law but only to the extent that Congress explicitly so provides.”⁷⁴ In accordance with the Supreme Court’s approach in Wheeler, reiterated in cases following that decision⁷⁵ and established under Alaska law, we presume that tribal sovereign powers remain intact. Thus, we begin by evaluating federal statutes affecting Alaska Natives in order to determine whether Congress has explicitly revoked the inherent sovereignty of Alaska’s Native tribes by eliminating their Indian country.

The dissent, however, asks us to begin from the opposite premise. Rather than following the teachings of federal and state law that respect tribal sovereignty by presuming that sovereign power exists unless divested, the dissent quotes language from Mescalero Apache Tribe v. Jones,76 in which the United States Supreme Court noted that “Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens.”⁷⁷ From this statement the dissent deduces what it terms an “allocative principle.”⁷⁸ Based upon Mescalero’s language, the dissent formulates a presumption that would reverse the basic rule and require courts, at least outside of Indian country, to refuse to recognize tribal jurisdiction unless an act of Congress specifically authorizes the exercise of tribal adjudicatory power. We refuse to accept this invitation to deny the existence of tribal sovereignty and to turn federal law on its head.

The dissent’s “allocative principle” thesis ignores the teachings of Wheeler and the decisions that follow it. In these post-Mes-calero decisions, the Court has not focused on tribal land as determinative of tribal authority. Instead of interpreting the Mescale-ro language as an across-the-board prohibition of tribal sovereignty in the absence of Indian country, for example, the Court in Montana v. United States⁷⁹ reconciled the general rule that tribal sovereignty exists unless specifically divested with the Mescale-ro language that state law applies to natives beyond reservation land. But Montana, in contrast to the dissent, articulates no test making the existence of reservation land determinative of tribal power. Instead, the Montana Court explained that Mescalero stands for the proposition that an express congressional delegation of power is required to sustain tribal power when the tribe has sought to control matters outside the scope of internal governmental authority: “[E]xer-eise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.”⁸⁰ The Court has continued to adhere to this proposition, requiring express Congressional delegation of power only when a tribe seeks to exercise power outside of its core sovereign authority.⁸¹

Thus, in determining whether tribes retain their sovereign powers, the United States Supreme Court looks to the character of the power that the tribe seeks to exercise, not merely the location of events. We accordingly decline to adopt the dissent’s approach and-instead follow federal law by beginning from the premise that tribal sovereignty with respect to issues of tribal self-governance exists unless divested. Congress has recognized that a tribe has a strong interest in “preserving and protecting the Indian family as the wellspring of its own future.”⁸² Because Northway Village’s status as a federally recognized tribe is undisputed and its adjudication of child custody disputes over member children is necessary “to protect tribal self-government or to control internal relations,” its tribal courts require no express congressional delegation of the right to determine custody of tribal children.

Finally, we note a tenet of federal Indian law on statutory interpretation that informs our analysis of this issue. Supreme Court precedent supplies clear instructions for interpreting ambiguous statutes: Courts must resolve ambiguities in statutes affecting the rights of Native Americans in favor of Native Americans.⁸³ Thus, we will not lightly find that Congress intended to eliminate the sovereign powers of Alaska tribes.

3. ANCSA itself and post-ANCSA federal statutes regarding tribal sovereignty all support Northivay’s jurisdiction over child custody matters.

Ample evidence exists that Congress did not intend for ANCSA to divest tribes of their powers to adjudicate domestic disputes between members. Congress intended ANCSA to free Alaska Natives from the dictates of “lengthy wardship or trusteeship,” ⁸⁴ not to handicap tribes by divesting them of their sovereign powers. As a principal author of the law has explained, ANCSA “rejected the paternalism of the past and gave Alaska Natives an innovative way to retain their land and culture without forcing them into a failed reservation system.”⁸⁵ But nowhere does the law express any intent to force Alaska Natives to abandon their sovereignty.

Outside of ANCSA, too, ample evidence exists that Congress did not intend for ANC-SA to divest tribes of their powers to adjudicate domestic disputes between members. Post-ANCSA congressional actions such as the Tribe List Act, ICWA, and the Tribal Justice Act indicate that Congress intended for post-ANCSA Alaska Natives to continue to regulate their internal affairs.

We noted above that the Tribe List Act shows Congress’s determination that Alaska Native villages are sovereign entities. The inclusion of Alaska Native villages on the tribal lists makes clear that Alaska Natives “have the right, subject to general principles of Federal Indian law, to exercise the same inherent and delegated authorities available to other tribes.”⁸⁶ And 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.

To hold otherwise would render the Tribe List Act hollow: If tribes that do not occupy Indian country have no inherent powers of self-governance, the language in the Tribe List Act that expressly reserves to these tribes “the right ... to exercise the same inherent and delegated authorities available to other tribes”⁸⁷ would be virtually meaningless. We find untenable the conclusion that Congress intended for the Tribe List Act to be an empty gesture.

The passage of ICWA seven years after ANCSA’s enactment also makes clear that Congress did not intend ANCSA to eradicate tribal court jurisdiction over family law matters. ICWA’s goal was to increase tribal control over custody decisions involving tribal children. Congress viewed this increased control as vital to the continued sovereignty of the tribes. In the legislative history to ICWA, Congress cited with approval a decision stating that “there can be no greater threat to ‘essential tribal relations,’ and no greater infringement on the right of the ... tribe to govern themselves than to interfere with tribal control over the custody of their children.”⁸⁸ Alaska Native villages are explicitly included within ICWA’s scope.⁸⁹

ICWA’s very structure presumes both that the tribes covered by the Act are capable of adjudicating child custody matters in their own courts and that tribal justice systems are appropriate forums for resolution of child custody disputes.⁹⁰ Indeed, legislative history reveals that ICWA’s jurisdictional framework was motivated by concerns over the “failure of State officials, agencies, and procedures to take into account the special problems and circumstances of Indian families and the legitimate interest of the Indian tribe in preserving and protecting the Indian family as the wellspring of its own future.”⁹¹ Although the custody dispute at the center of this case falls outside ICWA’s scope, Congress’s purpose in enacting ICWA reveals its intent that Alaska Native villages retain their power to adjudicate child custody disputes.

The Tribal Justice Act,⁹² enacted in 1993, further evidences the congressional view that the Native villages retain governmental powers. The Act provides financial support for tribal court activities without drawing distinctions between those tribes that occupy Indian country and those that do not and specifically includes Alaska Native villages recognized as tribes within its scope.⁹³ Additionally, in the Act’s findings section, Congress recognizes that all “Indian tribes possess the inherent authority to establish their own form of government,” that “tribal justice systems [are] the appropriate forums for the adjudication of disputes affecting personal and property rights,” and that “traditional tribal justice practices are essential to the maintenance of the culture and identity of Indian tribes.”⁹⁴

Based on the intent of Congress, as revealed by the Tribe List Act, ICWA, and the Tribal Justice Act, we conclude that Alaska Native villages do possess governmental powers over child custody matters.⁹⁵ We next examine federal decisional law regarding tribal sovereignty to see what guidance they provide on the issue of Northwa/s post-ANCSA jurisdiction.

4. Federal case law suggests that post-ANCSA, Alaska’s tribes retain non-territorial sovereignty that includes power over child custody disputes.

Ms. John and thev amici argue that the existence of Indian country is linked only to the tribe’s power over land and nonmembers, not to its power over members. Thus, they claim that even if Northway Village does not occupy Indian country, it can nevertheless adjudicate disputes between its members.

Because the traditional reservation-based structure of tribal life in most states forms the backdrop for the federal cases, courts have not had occasion to tease apart the ideas of land-based sovereignty and membership sovereignty. Consequently, the federal decisions do not conclusively answer the question of what happens when a law like ANCSA separates membership and land completely by allowing a federally recognized tribe to redefine its relationship to state and federal governments by eliminating the idea of Indian country. But federal case law does provide significant support for our conclusion that federal tribes derive the power to adjudicate internal domestic matters, including child custody disputes over tribal children, from a source of sovereignty independent of the land they occupy.

The federal decisions discussing the relationship between Indian country and tribal sovereignty indicate that the nature of tribal sovereignty stems from two intertwined sources: tribal membership and tribal land. The United States Supreme Court has recognized the dual nature of Indian sovereignty for more than a century and a half; the Court has explained that, under federal law, “Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory.”⁹⁶ Tribes not only enjoy the authority to exercise control within the boundaries of their lands, but they also possess the inherent “power of regulating their internal and social relations.”⁹⁷

Mi*. Baker and the dissent argue that many federal decisions construing the nature of tribal sovereignty view the existence of Indian country as the critical factor in determining the existence or extent of tribal authority. But the case law does not fairly support the view that the existence of Indian country is an absolute prerequisite to the existence of sovereign tribal power.

To the contrary, in a series of decisions exploring the nature of tribal sovereignty, the Court has noted the crucial role tribal membership plays in defining the scope of tribal authority. The distinction between members and nonmembers has often been treated as a dispositive factor in federal Indian jurisprudence. In United States v. Wheeler,⁹⁸ for example, the Court held that although tribes enjoy less sovereignty than foreign nations by virtue of them dependent relationship with the federal government, tribes retain the core power to regulate internal affairs:

The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. They cannot enter into direct commercial or governmental relations with foreign nations. And, as we have recently held, they cannot try nonmembers in tribal [criminal] courts.

These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by vvrtue of a tribe’s dependent status. [⁹⁹]

Other decisions similarly stress the importance of tribal power to regulate internal domestic relations. Three years after Wheeler, the Court in Montana v. United States¹⁰⁰ reaffirmed the significance of tribal membership and reaffirmed the importance of Native American self-governance: “Thus, in addition to the power to punish tribal offenders, the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.”¹⁰¹ The Court has stated that a tribe’s authority to “determine rights to custody of a child of divorced parents of the tribe” falls within the boundaries of inherent tribal sovereignty.¹⁰² Again in 1990, the Court in Duro v. Reina¹⁰³ emphasized the fundamental importance of membership, noting the federal law’s consistency “in describing retained tribal sovereignty ... in terms of a tribe’s power over its members.”¹⁰⁴ In deciding that the Salt River Pima-Maricopa tribe was without jurisdiction to prosecute criminally a man not eligible for membership, the Court emphasized the crucial distinction between members and nonmembers of the tribe. The court also noted the importance of membership throughout different areas of federal Indian law, including taxation, regulation of hunting and fishing, and civil and criminal court jurisdiction.¹⁰⁵

The Supreme Court has also applied these principles in the specific context of tribal authority to handle civil disputes in tribal justice systems. Tribes “have power to make their own substantive law in internal matters, and to enforce that law in their own forums.”¹⁰⁶ And tribal courts may also have jurisdiction to “resolve civil disputes involving nonmembers, including non-Indians”¹⁰⁷ when the civil actions involve essential self-governance matters such as membership or other areas where “the exercise of tribal authority is vital to the maintenance of tribal integrity and self-determination.”¹⁰⁸ The key inquiry, according to the Court, is not whether the tribe is located in Indian country, but rather whether the tribe needs jurisdiction over a given context to secure tribal self-governance: “If state-court jurisdiction over Indians ... would interfere with tribal sovereignty and self-government, the state courts are generally divested of jurisdiction as a matter of federal law.”¹⁰⁹

Fisher v. District Court¹¹⁰ provides an example of the Supreme Court’s recognition of the dual nature of sovereignty in the case law. Fisher, like the case before us, was a family law dispute between Native American parents. The Northern Cheyenne Tribal Court removed Ivan Fisher from his mother’s home and placed him with another tribal member, who wished to adopt him.¹¹¹ In determining that the Montana state courts had no jurisdiction over the Runsaboves’ adoption proceeding, the Supreme Court noted that the tribal court had exclusive jurisdiction in part because “the adoption proceeding is appropriately characterized as litigation arising on the Indian reservation.”¹¹² But two paragraphs later the Court stated that “[t]he exclusive jurisdiction of the Tribal Court ... [derives] from the quasi-sovereign status of the Northern Cheyenne Tribe under federal law.”¹¹³ This description of Native sovereignty as stemming from the tribe itself is at odds with the dissent’s theory that a tribe’s ability to adjudicate internal disputes is premised solely on the basis of its location within Indian country.

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. Indeed, the Fisher court concluded that allowing Montana’s state courts to hear the custody case between Native parents “plainly would interfere with the powers of self-government ... exercised through the Tribal Court” and voiced its concern that such usurpation “would cause a corresponding decline in the authority of the Tribal Court.”¹¹⁴ Although that case took place on a reservation, the considerations of noninterference and respect for tribal forums invoked by the Fisher court apply outside of Indian country.

The dissent interprets Fisher in quite a different way. Along with DeCoteau v. District County Court,115 Fisher is one of two decisions that the dissent believes illustrates its theory that no tribal court jurisdiction whatsoever can exist without Indian country. But these decisions do not support the dissent’s thesis that tribal sovereignty exists only within Indian country.

DeCoteau involved the narrow jurisdictional issue of whether South Dakota’s state courts could assert any jurisdiction over the conduct of tribal members on a reservation, something normally within the tribe’s exclusive jurisdiction. The Court expressly stated that the only issue presented by the case was whether the reservation existed;¹¹⁶ the Court 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.¹¹⁷ After describing the legal agreement between the parties, which the Court assumed without deciding was an accurate one,¹¹⁸ the Court noted in footnote 2 that the parties relied on 11 U.S.C. §§ 1151(a) and (c) in formulating their stipulation. This statute defines “Indian country” for purposes of criminal jurisdiction, and the Court noted that the law “generally applies as well to questions of civil jurisdiction.”¹¹⁹ Footnote 2 amounts, then, to little more than a passing recognition of settled case law interpreting that statute’s usual meaning and scope. That this was all the Court meant to say in footnote 2 is illustrated by the Court’s reference to that footnote in Venetie II, which cited DeCoteau not for any bright-line jurisdictional test but only for the long-standing holding that § 1151 generally applies to both criminal and civil cases.¹²⁰ Moreover, the Venetie II court 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.¹²¹

Fisher teaches even less about the existence of any kind of rule equating Indian country with sovereign adjudicatory power. The Fisher Court asked only whether Montana had any basis to assert concurrent jurisdiction over the Runsaboves’ adoption proceeding; it assumed that the tribal court retained some form of jurisdiction, either exclusive or concurrent, stemming from the tribe’s right to govern itself.¹²² Because it found that state court jurisdiction would interfere with the tribe’s self-governance and diminish the authority of the tribal court, and because the state had no interest in the dispute since all relevant events took place on Indian land, the Court held that the tribe had exclusive jurisdiction over the adoption.¹²³ But Fisher does not imply that jurisdiction must lie exclusively in one forum or another. The Supreme Court viewed the case before it as one in which Indian jurisdiction was unquestioned and the only issue presented was' whether Montana had any form of jurisdiction at all. Thus, Fisher’s holding — that Indian land may be a prerequisite to exclusive tribal jurisdiction — in no way answers the question of whether the tribal court retains concurrent jurisdiction over tribal relations without such land.¹²⁴

Following in the line of Wheeler and Montana, a pair of recent tax decisions illustrates that DeCoteau and Fisher leave today’s dispute unanswered. And they indicate that the Supreme Court has been careful to note that the general rule that “Indians going beyond reservation boundaries have generally been held subject to non-discriminatóry state law otherwise applicable to all citizens of the State”¹²⁵ — the source of the dissent’s “allocative principle” — does not mean that a tribe must forego its fundamental self-governance because of a lack of Indian country. In Oklahoma Tax Commission v. Sac and Fox Nation,¹²⁶ the Court specifically declined to answer the question of “whether the Tribe’s right to self-governance could operate independently of its territorial jurisdiction to pre-empt the state’s ability to tax income ... when the employee does not reside in Indian country.”¹²⁷ Two years later, in Oklahoma Tax Commission v. Chickasaw Nation,128 the Supreme Court emphasized that the question of a tribe’s internal powers absent Indian country was undecided, but implied that a tribe’s ability to retain fundamental powers of self-governance is the more important principle.

The Chickasaw Nation Court held that Oklahoma could not collect several challenged taxes within an Indian reservation but could collect taxes on tribal members living outside Indian country. The court noted that generally applicable state laws’ are usually enforceable against Natives in the absence of Indian country.¹²⁹ But the Court also implied that its result would be different had the parties’ dispute implicated the tribal self-governance concerns raised by a family law matter integral to tribal self-governance. In explaining its rationale, the Supreme Court said: “Notably, the Tribe has not asserted here, or before the Court of Appeals, that the State’s tax infringes on tribal self-governance.” ¹³⁰ Only after twice emphasizing that the Chickasaw Nation did not raise self-governance claims and that the Court was thus procedurally foreclosed from considering such arguments did the Court reach its decision.¹³¹

The custody dispute between Ms. John and Mr. Baker lies at the core of sovereignty — a tribe’s “inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.”¹³² By 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 dispute because the right to determine custody of Indian children, unlike Oklahoma’s motor fuels tax, “infringes on tribal self-governance.”¹³³

As recently as last year, the Supreme Court reaffirmed the notion that the existence of Indian country is not a disposi-tive factor in determining jurisdiction. In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc.,134 the Court held that tribes enjoy sovereign immunity from civil lawsuits asserting contract claims regardless of whether the contracts were formed on or off Indian land.¹³⁵ Although the case dealt with a different set of factual circumstances than the present dispute, it is notable that only the Kiowa Tribe dissenters believed that the “generally applicable’ state laws” rule should apply to hold the tribe subject to suit for a promissory note executed outside of Indian country.¹³⁶ Although the dissenters claimed that the immunity doctrine should not apply to conduct unrelated to the tribe’s Indian country,¹³⁷ the majority refused to accept this narrow territorial conception.¹³⁸ We similarly refuse to accept it today.

Decisions of the United States Supreme Court support the conclusion that Native American nations may possess the authority to govern themselves even when they do not occupy Indian country.¹³⁹ The federal decisions contain language supporting the existence of tribal sovereignty based on either land or tribal status. Indian law jurisprudence stresses the central importance of membership and the fundamental powers of tribes to adjudicate internal family law affairs like child custody disputes. Decisions like Chickasaiv Nation and Sac and Fox Nation suggest that tribes without Indian country do possess the power to adjudicate internal self-governance matters. We hold that the type of dispute before us today — an action for determination of custody of the children of a member of Northway Village— falls squarely within Northway’s sovereign power to regulate the internal affairs of its members.

Although Ms. John is not a member of Northway Village, she argues that the children themselves are eligible for tribal membership. This is a critical fact that must be determined by the superior court on remand, as we discuss in Part III.E.3. A tribe’s inherent sovereignty to adjudicate internal domestic custody matters depends on the membership or eligibility for membership of the child. Such a focus on the tribal affiliation of the children is consistent with federal statutes such as ICWA, which focuses on the child’s tribal membership as a determining factor in allotting jurisdiction.¹⁴⁰ 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.¹⁴¹

5. Alaska’s state courts retain concurrent jurisdiction over this dispute.

Although we recognize North-way’s jurisdiction to adjudicate child custody disputes between village members, its jurisdiction is not exclusive. The State of Alaska can also exercise jurisdiction over such disputes. This is so because villages like North-way presumably do not occupy Indian country, and federal law suggests that the only bar to state jurisdiction over Indians and Indian affairs is the presence of Indian country.¹⁴² Outside Indian country, all disputes arising within the State of Alaska, whether tribal or not, are within the state’s general jurisdiction.¹⁴³ Thus the state, as well as the tribe, can adjudicate such disputes in its courts. A tribe’s inherent jurisdiction does not give tribal courts priority, or presumptive authority, in disputes involving tribal members.

Several state and federal courts have also recognized the existence of concurrent state-tribal jurisdiction over tribal family law disputes when one or both parents do not reside on reservation land. For example, in In re Marriage of Skillen,¹⁴⁴ the Supreme Court of Montana considered whether Montana state courts had jurisdiction to hear a dispute over the custody of an Indian child. One of the parties was the child’s non-Indian father, who lived off the reservation.¹⁴⁵ After discussing congressional intent as revealed in ICWA, the UCCJA, and the Parental Kidnapping Prevention Act (PKPA)¹⁴⁶ and examining federal case law, the Montana court determined that tribal courts have exclusive jurisdiction over children domiciled on reservation land and that “when an Indian child resides off the reservation, the state court and tribal court share concurrent jurisdiction.” ¹⁴⁷ The Skillen court noted that recognition of concurrent jurisdiction reflected the delicate balance under federal law of a state court’s “obligation to respect the sovereignty of Indian tribes in relation to [the court’s] responsibility to uphold and enforce the laws of this state.”¹⁴⁸

Although we base our decision in this case on the decisions of Congress and the Supreme Court, we, like the Skillen court, also believe that policy considerations support our recognition of concurrent jurisdiction. 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.

For example, the 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.¹⁴⁹ Moreover, we have recognized that Alaska is home to “uniquely divergent cultures,” including many “Native cultures which remain today much as they were prior to the infusion of Anglo-American culture.”¹⁵⁰ Because of this great diversity, barriers of culture, geography, and language combine to create a judicial system that remains foreign and inaccessible to many Alaska Natives.¹⁵¹' These differences have “created problems in administering a unified justice system sensitive to the needs of Alaska’s various cultures.”¹⁵² 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, while preserving the right of access to state courts, can only help in the administration of justice for all.¹⁵³

The continuing existence of concurrent state jurisdiction also lays to rest a number of the dissent’s concerns. Contrary to the dissent’s assertions that “[t]he doors of Alaska’s courts will no longer be open to all Alaskans”¹⁵⁴ and that urban Alaska Natives will be required to adjudicate their cases in remote villages,¹⁵⁵ Native parents who live in Anchorage and do not wish to avail themselves of a distant tribal forum will still be able to resolve their custody disputes in Anchorage Superior Court. Indeed, Alaska Natives who for any reason do not wish to have their disputes adjudicated in a tribal court will retain complete and total access to the state judicial system. Because state courts retain concurrent jurisdiction, there is no “mandatory tribal court jurisdiction.”¹⁵⁶

The existence of concurrent state jurisdiction also reveals the inapplicability of the dissent’s proposed “allocative principle” to our decision today. Even if there existed an iron-clad rule that state law must always apply to Natives outside of Indian land, the outcome we reach today would not violate that rule. Mescalero teaches that “Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens.” ¹⁵⁷ The dissent, citing no persuasive authority, mistakenly attempts to shape this statement into a rule between competing exclusive jurisdictions. But because the jurisdiction of Alaska state courts remains unaffected by our recognition of concurrent tribal court jurisdiction, the dissent’s argument in this regard is essentially a straw man. Our formulation does not rob the state of its exercise of judicial power over Alaska Natives; rather, the state will continue to address these disputes either directly, through the exercise of concurrent jurisdiction, or indirectly, through the doctrine of comity.

D. Tribal Law Applies to Child Custody Disputes Adjudicated by Tribal Courts.

Ms. John and the amici argue that North-way should be able to apply its own law, including tribal law and custom, in resolving a custody dispute that falls within its jurisdiction. We agree.

Decisions addressing tribal power to adjudicate internal matters state that tribes have the “power to make their own substantive law in internal matters and to enforce that law in their own forums.”¹⁵⁸ Similarly, the Supreme Court has stressed that tribal sovereignty is valuable precisely because it enables Native Americans “to control their own internal relations, and to preserve their own unique customs and social order.”¹⁵⁹ Because Alaska Native tribes have inherent sovereignty to adjudicate internal tribal disputes, the tribes must be able to apply their tribal law to those disputes. Thus, tribal sovereignty over issues like family relations includes the right to enforce tribal law in resolving disputes.

E. The Doctrine of Comity Properly Governs State Recognition of Tribal Court Decisions.

We must also determine whether the superior court should have dismissed Mr. Baker’s identical state suit. After examining whether states should afford tribal court judgments full faith and credit, we conclude that the comity doctrine provides the proper framework for deciding when state courts should recognize tribal court decisions.

1. Full faith and credit

ICWA requires courts to extend full faith and credit to tribal court decisions involving “child custody proceedings” as that term is defined by the statute.¹⁶⁰ But, as we stated above, this parental custody dispute does not qualify as a “child custody proceeding” under ICWA. Thus, ICWA’s full faith and credit provision does not apply in this case.

Other than ICWA, no federal or state law suggests that courts should grant full faith and credit to tribal court judgments. The full faith and credit provision of the federal constitution applies only to states.¹⁶¹ As one federal court recently concluded, nothing in the Constitution’s text or in the debates of the constitutional convention suggests that the framers believed that the clause would apply to tribes.¹⁶²

Further, federal legislation implementing the Constitution’s Full Faith and Credit Clause has extended its application only to United States territories and possessions.¹⁶³ Because Congress specifically distinguished between territories and possessions and Indian tribes in enacting ICWA’s full faith and credit clause, we do not view this legislation as extending the full faith and credit requirement to tribal judgments.¹⁶⁴

Similarly, the UCCJA and the PKPA, which require courts to recognize and enforce certain child custody determinations, apply only to “states.”¹⁶⁵ The two statutes define “state” to mean a state, territory or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.¹⁶⁶ Neither of the statutes’ legislative histories contains any evidence suggesting that the laws apply to Indian tribes. Because ICWA’s full faith and credit provision reveals that Congress does not view Indian tribes as “states, territories or possessions,” the PKPA does not accord full faith and credit to tribal judgments.¹⁶⁷ And in the absence of proof that the Alaska legislature specifically intended the UCCJA to include Indian tribes, we follow the principle of statutory interpretation instructing that all omissions be treated as exclusions.¹⁶⁸ We therefore conclude that the UCCJA does not apply to tribal judgments.¹⁶⁹

Because no federal or state law applies the full faith and credit requirement to tribal court decisions, we turn to consideration of the comity doctrine.

2. Comity

Comity is the principle that “the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another state or jurisdiction, not as a matter of obligation, but out of deference and mutual respect.”¹⁷⁰ The comity doctrine governs the recognition afforded by courts in the United States to judgments of foreign na-tions.¹⁷¹ Comity “is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.”¹⁷² Although Indian tribes, as domestic dependent nations, differ from foreign countries, we agree with the Ninth Circuit that comity affords the best “analytical framework for recognizing tribal judgments.”¹⁷³ Numerous state courts have reached the same conclusion.¹⁷⁴ We therefore hold that, as a general rule, our courts should respect tribal court decisions under the comity doctrine.¹⁷⁵

In certain limited circumstances, however, state recognition of tribal judgments may be inappropriate. We conclude, as did the Ninth Circuit, that our courts should refrain from enforcing tribal court judgments if the tribal court lacked personal or subject matter jurisdiction.¹⁷⁶ 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.

We also agree with the Ninth Circuit that state courts should afford no comity to proceedings in which any litigant is denied due process.¹⁷⁷ In deciding whether tribal court proceedings complied with due process, courts should consider whether the parties received notice of the proceedings and whether they were granted a full and fair opportunity to be heard before an impartial tribunal that conducted the proceedings in a regular fashion.¹⁷⁸ An indication that the judiciary was dominated by the opposing litigant would suggest that due process had been violated.¹⁷⁹

But this due process analysis in no way requires tribes to use procedures identical to ours in their courts. The comity analysis is not an invitation for our courts to deny recognition to tribal judgments based on paternalistic notions of proper procedure.¹⁸⁰ Instead, in deciding whether a party was denied due process, superior courts should strive to respect the cultural differences that influence tribal jurisprudence, as well as to recognize the practical limits experienced by smaller court systems.¹⁸¹

Additionally, superior courts should not deny recognition to tribal judgments simply because they disagree with the outcome reached by the tribal judge or because they conclude that they could better resolve the dispute at issue.¹⁸² Thus, suggesting — as the superior court did in this case — that state jurisdiction was proper because “significant expertise will be required to resolve this difficult dispute,” has no place in a comity analysis.

Although the comity analysis is not an invitation for superior courts to disregard tribal decisions with which they substantively disagree, the comity analysis, when properly applied, does allow state courts to refuse to enforce a tribal order that “is against the public policy of the United States or the forum state in which recognition is sought.”¹⁸³ This aspect of the comity analysis should lay to rest the dissent’s concern that our decision today will open the floodgates to tribal decisions that are fundamentally inconsistent with the public policies underlying Alaska law.¹⁸⁴ But we would ignore the fundamental meaning of sovereignty and insult tribal systems of justice to reason that because tribal law is different it is inferior.¹⁸⁵

3. Applying the comity doctrine in this case

Mr. Baker argues that the superior court should decline to recognize Judge Titus’s decision under the comity doctrine for two reasons. First, he contends that because his children are members of Mentasta Village, rather than Northway Village, the tribal court lacked subject matter jurisdiction over the dispute. Second, he maintains that Northway’s tribal court system does not comport with due process because it does not provide appellate procedures.

The superior court never had the opportunity to address these arguments through the framework of the comity doctrine as we have outlined it above. Further, we are unable to resolve these claims because the record on appeal contains no information about the tribal membership of the children or the review procedures available in the Northway Tribal Court. We therefore remand to the superior court to allow it to consider Mr. Baker’s claims in its application of the comity doctrine.

We would, however, like to provide the superior court with guidance in resolving these claims. First, although this is not an ICWA case, we conclude that ICWA provides the most appropriate test for deciding when a tribal court has subject matter jurisdiction over a particular custody dispute. Under ICWA, the relevant factor is the child’s tribe.¹⁸⁶ Thus, we agree with Mr. Baker that the Northway court had jurisdiction over this case only if the children are members or are eligible for membership in the village. In determining the children’s membership status, the superior court should apply tribal law.¹⁸⁷

Second, we do not decide in this appeal whether due process requires tribal courts to provide an appellate or review process. The parties have not fully briefed this issue, and we suspect that conflicting authority exists. Although the Restatement of Foreign Relations Law suggests that foreign courts must provide access to review in order to comport with due process,¹⁸⁸ the Supreme Court has held that due process does not require state court systems to provide an appellate system.¹⁸⁹ If the superior court finds on remand that Northway Village does not have an appeal or review system, it will need to determine, after detailed briefing, whether the absence of such a system violates due process.¹⁹⁰

IV.CONCLUSION

Tribal courts in Alaska have jurisdiction to adjudicate custody disputes involving tribal members. This jurisdiction is concurrent with that of the state courts. We therefore REVERSE and REMAND to the superior court to determine whether the tribal court’s resolution of the custody dispute between Ms. John and Mr. Baker should be recognized under the doctrine of comity.

1 . Former AS 25.30.010 et seq.

2 . 25 U.S.C. § 1901 et seq.

3 . 522 U.S. 520, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998).

4 . 722 P.2d 219 (Alaska 1986).

5 . 843 P.2d 1214 (Alaska 1992).

6 . See Hydaburg Coop. Ass’n v. Hydaburg Fisheries, 925 P.2d 246, 248 (Alaska 1996); In re T.N.F., 781 P.2d 973, 975 (Alaska 1989).

7 . See Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

8 . Act of August 15, 1953, Pub.L. 83-280, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-26, 28 U.S.C. § 1360).

⁹

10 . See 722 P.2d at 220.

11 . See id. at 221.

12 . See id.

13 . 25 U.S.C. § 1918(a).

14 . See 28 U.S.C. § 1360(a). Enacted in 1953, P.L. 280 required five states to assume civil and criminal jurisdiction over affairs in Indian country, and allowed other states to assume such jurisdiction voluntarily. In 1958, Alaska was added to the list of mandatory P.L. 280 jurisdictions. See Act of Aug. 8, 1958, P.L. No. 85-615, § 2, 72 Stat. 545.

15 . See Nenana, 722 P.2d at 221.

¹⁶

17 : 944 F.2d 548 (9th Cir.1991).

18 . See id. at 550.

19 . See id. at 556, 558.

20 . Id. at 556.

21 . See id. at 559.

22 . See id. at 562.

23 . 757 P.2d 32 (Alaska 1988).

24 . In re F.P., 843 P.2d 1214, 1215 (Alaska 1992) (internal ellipsis and citation omitted).

25 . See id. at 1215-16.

26 . See id. at 1216. But see id. at 1217-18 (Rabinowitz C.J., dissenting) (reasoning that "it is inconsistent with the doctrine of inherent tribal sovereignty to conclude that § 1918 of the ICWA and Public Law 280, taken together, divest tribes of even concurrent jurisdiction over child custody matters” (citation omitted)).

27 . See 25 U.S.C. §§ 1911, 1918.

28 . Although the superior court ruled that ICWA did not apply to this custody dispute and neither party has appealed this aspect of the court's decision, Mr. Baker now argues that ICWA does apply. Even though Mr. Baker arguably has not preserved this issue for appeal, this court can affirm on any grounds. See Gunderson v. University of Alaska, Fairbanks, 922 P.2d 229, 236 n. 9 (Alaska 1996). Moreover, we address the question of ICWA's applicability because it is "critical to a proper and just decision,” and the "parties have had an opportunity to brief it." In re K.E., 744 P.2d 1173, 1174 (Alaska 1987) (citation omitted).

29 . See 25 U.S.C. § 1901.

30 . 25U.S.C. § 1902.

31 . H.R.Rep. No. 95-1386, at 23 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7546.

32 . H.R.Rep. No. 95-1386, at 31.

33 . Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,587 (1979). Although the Bureau of Indian Affairs did not promulgate these guidelines as regulations, they do represent its interpretation of the statute and as such the guidelines have important but not controlling significance. See Batterton v. Francis, 432 U.S. 416, 424-25, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977).

34 . See Walksalong v. Mackey, 250 Neb. 202, 549 N.W.2d 384, 387 (1996); see also In re Defender, 435 N.W.2d 717, 721-722 (S.D.1989).

35 . We note that ICWA’s inapplicability to all inter-parental custody disputes was an underlying assumption of our decision in J.W. v. R.J., 951 P.2d 1206, 1214 (Alaska 1998).

36 . See 118 S.Ct. at 954-55.

37 . The relevant portion of P.L. 280 reads as follows:

(a) Each of the States listed in the following table 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 opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action ...:

State of Indian country affected Alaska All Indian country within the State....

28U.S.C. § 1360(a).

38 . 43 U.S.C. § 1601 et seq.

39 . See id. at § 1601(a).

40 . See id. at § 1603.

41 . See Alaska v. Native Village of Venetie Tribal Gov't (Venetie II), 522 U.S. 520, 118 S.Ct. 948, 951, 140 L.Ed.2d 30 (1998).

42 . See 18 U.S.C. § 1151; Venetie II, 118 S.Ct. at 952.

43 . See 43 U.S.C. § 1610(b). The sole post-ANC-SA Indian reservation in Alaska is the Metlakatla Reservation on the Annette Islands. See Metlakatla Indian Community, Annette Island Reserve v. Egan, 362 P.2d 901, 920 (Alaska 1961), rev'd in part, 369 U.S. 45, 54-55, 82 S.Ct. 552, 7 L.Ed.2d 562 (1962).

44 . See Venetie II, 118 S.Ct. at 954-55.

45 . As Mr. Baker notes, some Indian country may still exist in Alaska under the second definition, Indian allotments. There has been no contention that Northway Village occupies such an allotment, however, and for the purposes of this appeal we assume that Northway Village is not Indian country.

46 .The United States argues that our prior interpretation of P.L. 280 remains relevant even if Northway Village does not occupy Indian country because it would be contrary to established law to conclude that a tribal court had greater powers outside, rather than inside, of Indian country. It is true that, generally, Indian nations possess greater powers in Indian country than they do outside it. See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982) (holding that only in Indian country may tribes exercise powers over nonmembers). And at least one federal reservation does still exist in Alaska. Thus, the United States correctly notes in its brief that the recognition of Northway's jurisdiction creates a disjunction in Indian law jurisprudence. But this inconsistency does not create a justification to address issues that are not squarely before us.

47 . See Atkinson v. Haldane, 569 P.2d 151, 163 (Alaska 1977).

48 . See Native Village of Stevens v. Alaska Management & Planning, 757 P.2d 32, 34-35 (Alaska 1988).

49 . United States v. Holliday, 70 U.S.(3 Wall.) 407, 419, 18 L.Ed. 182 (1865).

⁵⁰

51 . See id. at 34.

52 . See In re F.P., 843 P.2d 1214, 1215 (Alaska 1992).

53 . See Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs [hereinafter 1993 list], 58 Fed.Reg. 54,364, 54,368-69 (1993).

54 . See id. at 54,364.

⁵⁵

56 . See id. at 54,365.

57 . See U.S. Dep’t Interior, Solic. Op. M-36,975 at 8-60 (Jan. 11, 1993).

58 . 1993 list, 58 Fed.Reg. at 54,365 (quoting the Solicitor's opinion).

59. 1993 list, 58 Fed.Reg. at 54,365-66 (emphases added).

60 . 25 U.S.C. § 479a et seq. (West Supp. 1998).

61 . Id. at § 479a-1.

62 . See Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 60 Fed.Reg. 9250, 9255 (1995); see also Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 61 Fed.Reg. 58,211, 58,-215 (1996); Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 62 Fed.Reg. 55,270, 55,275 (1997); Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 63 Fed.Reg. 71,-941, 71,945 (1998).

63 . See P.L. 103-454, 108 Stat. 4791 (1994).

64 . H.R.Rep. No. 103-781, at 2-3 (1994), reprinted in 1994 U.S.C.C.A.N. 3768, 2769.

65 . Id. at 2. The legislative history to the Act reveals that Congress recognized the dispute over the existence of Indian country in Alaska and did not intend for the tribal recognition list to resolve the dispute. See id. at 4-5. But Congress's ambivalence on the Indian country issue does not undermine its recognition of the tribal status of Alaska Native villages.

66 . See White Mountain Apache Tribe v. Bracket, 448 U.S. 136, 143, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980); United States v. Wheeler, 435 U.S. 313, 322-33, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978).

67 . Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 146, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982); see also Wheeler, 435 U.S. at 323, 98 S.Ct. 1079.

68 . 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978).

69 . Id. at 322-33, 98 S.Ct. 1079 (citations and internal quotation marks omitted).

70 . Id. at 323, 98 S.Ct. 1079.

71 . See, e.g., Wheeler, 435 U.S. at 326, 98 S.Ct. 1079; Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). Part III.C.4 infra contains a full discussion of the scope of retained sovereignty.

72 . 560 P.2d 31, 33 (Alaska 1977).

73 . Id.

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75 . See, e.g., Montana, 450 U.S. at 563-67, 101 S.Ct. 1245; White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980).

76 . 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973).

77 . Id. at 148-49, 93 S.Ct. 1267.

78 . Dissent at 774-776.

79 . 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981).

80 . Id. at 564, 101 S.Ct. 1245 (emphasis added) (citing Mescalero, 411 U.S. at 148, 93 S.Ct. 1267).

81 . See, e.g., Duro v. Reina, 495 U.S. 676, 685-88, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). In Duro, the Court held that tribes lacked criminal jurisdiction over nonmember Indians. See id. Shortly after the decision, Congress provided for tribal criminal jurisdiction over nonmember Indians. See 25 U.S.C. §§ 1301-03 (1983 & Supp.1998).

82 . H.R.Rep. No. 95-1386, at 19.

83 . See In re F.P., 843 P.2d 1214, 1219 (Alaska 1992); see also South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 118 S.Ct. 789, 800, 139 L.Ed.2d 773 (1998) (recognizing canon of Indian law that federal laws affecting tribal sovereignty should be “construed narrowly in favor of retaining Indian rights”); Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976) (stating "we must be guided by the eminently sound and vital canon ... that statutes passed for the benefit of dependent Indian tribes are to be liberally construed, doubtful expressions being resolved in favor of the Indians”) (internal quotation marks, ellipsis and citations omitted).

84 . Alaska v. Native Village of Venetie Tribal Gov’t (Venetie II), 522 U.S. 520, 118 S.Ct. 948, 956, 140 L.Ed.2d 30 (1998).

85 . Senator Ted Stevens, Address Before the Alaska Legislature (Apr. 2, 1997), in Senate and House Joint Journal Supp. No. 9 at 5, 1997 House Journal 915, quoted, in Donald C. Mitchell, Alaska v. Native Village of Venetie: Statutory Construction or Judicial Usurpation? Why History Counts, 14 Alaska L.Rev. 353, 440 (1997).

86 .58 Fed.Reg. 54,366 (1993).

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88 . See H.R.Rep. No. 95-1386 at 15 (alteration in original) (quoting Wakefield v. Little Light, 216 Md. 333, 347 A.2d 228, 237-38 (1975)).

89 . See 25 U.S.C. § 1903(8).

90 . See id. at § 1911 (providing for extended tribal court jurisdiction in the field of child custody).

91 . H.R.Rep. No. 95-1386 at 19 (emphasis added).

92 . 25 U.S.C. § 3601 et seq. (West Supp.1998).

93 . See 25 U.S.C. § 3601, 3602(3).

94 . Id. at § 3601(4), (6), (7).

95 . See County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251, 265-66, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992) (holding that "when two [or more] statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." (alteration in original) (internal quotation marks omitted)).

96 . United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) (citing Worcester v. Georgia, 6 Pet. 515, 557, 8 L.Ed. 483 (1832)).

97 . Id. (quoting United States v. Kagama, 118 U.S. 375, 381-82, 6 S.Ct. 1109, 30 L.Ed. 228 (1886)).

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99 . Id. at 326, 98 S.Ct. 1079 (citations omitted).

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101 . Id. at 564, 101 S.Ct. 1245 (citation omitted).

102 . Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 170, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982) (citing Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976)).

103 . 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990).

104 . Id. at 685, 110 S.Ct. 2053.

105 . See id. at 686-89, 110 S.Ct. 2053.

106 . Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (citations omitted).

107 . Duro v. Reina, 495 U.S. 676, 687, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990) (citing Santa Clara, 436 U.S. at 65-66, 98 S.Ct. 1670; Williams v. Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959)).

108 . Id. at 688, 110 S.Ct. 2053 (citing Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989)).

109 . Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 15, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) (citing Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976)).

110 . 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976).

111 . See id. at 383, 96 S.Ct. 943.

112 . Id. at 389, 96 S.Ct. 943.

113 . Id. at 390, 96 S.Ct. 943.

114 . Id. at 387-88, 96 S.Ct. 943.

115 . 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975).

116 . See id. at 427, 95 S.Ct. 1082.

117 . See id. at 426-28 & n. 3, 95 S.Ct. 1082.

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119 . Id. at 427 n. 2, 95 S.Ct. 1082.

120 . See Alaska Native Village of Venetie Tribal Gov’t (Venetie II), 522 U.S. 520, 118 S.Ct. 948, 952, 140 L.Ed.2d 30 (1998).

121 . See id. at 952 n. 1 (noting that tribes and the federal government have “primary jurisdiction over land that is Indian country” but saying nothing about jurisdiction over members) (emphasis added).

122 . See Fisher, 424 U.S. at 386-89, 96 S.Ct. 943.

123 . See id. at 387-89 & n. 14, 96 S.Ct. 943.

124 . The dissent also describes Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984), as a case discussing “jurisdiction over 'lands’ in order to determine jurisdiction over tribal members.” Dissent at 782. But Solem determines the existence of Indian country for the purpose of applying an Act of Congress that vests the federal government with exclusive jurisdiction over certain crimes committed on Indian reservations, and thus does not address tribal jurisdiction except in the context of that Act. See id. at 464-65 & nn.1 & 2, 104 S.Ct. 1161.

125 . Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973).

126 . 508 U.S. 114, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993).

127 . Id. at 126, 113 S.Ct. 1985 (citations omitted).

128 . 515 U.S. 450, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995).

129 . See id. at 465, 115 S.Ct. 2214.

130 . Id. at 464, 115 S.Ct. 2214.

131 . See id. at 464-65 & n. 14, 115 S.Ct. 2214.

132 . Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981); see also United States v. Wheeler, 435 U.S. 313, 322-28, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978).

133 . Chickasaw Nation, 515 U.S. at 464, 115 S.Ct. 2214.

134 . 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998).

135 . See id. at 1705.

136 . See id. at 1705-08 (Stevens, J., dissenting).

137 . See id. al 1707.

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139 . At least one federal judge has voiced the opinion that in enacting ANCSA, Congress intended that Native villages retain sovereignty over members even though such sovereignty was "without territorial reach.” State of Alaska ex rel. Yukon Flats Sch. Dist. v. Native Village of Venetie Tribal Gov't, 101 F.3d 1286, 1303 (9th Cir.1996) (Fernandez, J. concurring).

140 . See 25 U.S.C. § 1903(4) (defining “Indian child” under ICWA as a child who is a tribal member or- eligible for membership).

141 . Consent of both parents may be an alternative basis for tribal court jurisdiction in child custody cases, as federal law supports the determination that tribes have jurisdiction over consenting nonmembers in some situations. See Montana v. United States, 450 U.S. 544, 565, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) (recognizing a tribe's power to regulate activities of nonmembers who enter consensual relationships with the tribe or its members). Here, Ms. John consented to have this action decided in a Northway tribal forum. But we need not decide at this time whether her consent is sufficient to confer jurisdiction on the tribal court in this case, given that we remand for determination of the children’s tribal affiliation.

142 . See, e.g., Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973).

143 . See AS 22.10.020(a).

144 . 287 Mont. 399, 956 P.2d 1 (1998).

145 . See id. at 4-5.

146 . 28 U.S.C. § 1738A(a).

147 . Skillen, 956 P.2d at 18; see also In re Larch, 872 F.2d 66, 69 (4th Cir.1989) (noting that ICWA "discloses that Congress recognized that there can be concurrent jurisdiction in state and tribal courts"); United States ex rel. Cobell v. Cobell, 503 F.2d 790, 795 (9th Cir.1974) (holding that, in a custody case between tribal members where the children reside off the reservation, the tribe and state would share concurrent jurisdiction if the tribe’s law had not explicitly disclaimed tribal jurisdiction over marriage, divorce, and adoption); Wells v. Wells, 451 N.W.2d 402, 405 (S.D.1990) (recognizing concurrent state-tribal jurisdiction over a custody action between a Native American mother and a non-Indian father where the mother and children moved off the reservation).

148 . Skillen, 956 P.2d at 18.

149 . See, e.g., Alaska Court System, Report of the Alaska Supreme Court Advisory Committee on Fairness and Access ix (1997) ("Urban residents have far more access to justice system services than village residents. One-fourth of Alaskans do not live within reasonable reach of many court system services.”); id. at 104-11 (noting dramatic access problems for rural Alaskans).

150 . Calista Corp. v. Mann, 564 P.2d 53, 61 (Alaska 1977).

151 . See, e.g., Alaska Court System, Report of the Alaska Supreme Court Advisory Committee on Fairness and Access 49 (1997) (“Many [interviewees] believed that the courts do not understand Alaska Native cultures and family structures .... ”); id. at 92 (noting that 36% of Alaska Natives speak a Native language at home).

152 . Calista, 564 P.2d at 61.

153 . See, e.g., Alaska Court System, Report of the Alaska Supreme Court Advisory Committee on Fairness and Access 107-08 (1997) (recommending that state courts "greatly enhance equality in the effective delivery of justice system services by associating or blending [] local resources [like tribal courts] with the formal court system" and noting that "[t]he western justice system is not always the most appropriate model for the problems of many rural areas”).

154 . Dissent at 766.

155 . Dissent at 804.

156 . Dissent at 803.

157 . Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973).

158 . Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (citations omitted); see also United States v. Quiver, 241 U.S. 602, 603-604, 36 S.Ct. 699, 60 L.Ed. 1196(1916).

159 . Duro v. Reina, 495 U.S. 676, 685-86, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990).

160 . See 25 U.S.C. § 1911(d).

161 . See U.S. Const, art. IV, § 1.

162 . See Wilson v. Marchington, 127 F.3d 805, 808 (9th Cir.1997).

163 . See 28 U.S.C. § 1738.

164 . ICWA’s full faith and credit clause provides that "[t]he United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe....” 25 U.S.C. § 1911(d) (emphasis added). See also Wilson, 127 F.3d at 809 (reaching the same conclusion after comparing the language in ICWA and § 1738).

165 . See 28 U.S.C. § 1738A(a); AS 25.30.120.

166 . See 28 U.S.C. § 1738A(b)(8); AS 25.30.909.

167 . But see In re Larch, 872 F.2d 66, 68 (4th Cir.1989) (holding that the PKPA does apply to tribes because tribal court judgments are entitled to full faith and credit under certain circumstances and tribes are similar to states for purposes of sovereignty and jurisdiction). We are unpersuaded by the reasoning of the Larch court in light of the contrary evidence we discussed above.

168 . See Norman J. Singer, 2A Sutherland Statutory Construction § 47.23 (5th ed.1992).

169 . State courts interpreting their own versions of the UCCJA have reached contrary conclusions regarding the meaning of the term "state.” See, e.g., Martinez v. Superior Court, 152 Ariz. 300, 731 P.2d 1244, 1247 (App.1987) (holding that an Indian tribe qualifies as a territory of the United States and thus is a state for purposes of the UCCJA); Sengstock v. San Carlos Apache Tribe, 165 Wis.2d 86, 477 N.W.2d 310, 314 (App.1991) (holding that the term "state" does not include an Indian tribe).

170 . Brown v. Babbitt Ford, Inc., 117 Ariz. 192, 571 P.2d 689, 695 (App.1977).

171 . See Hilton v. Guyot, 159 U.S. 113, 163, 16 S.Ct. 139, 40 L.Ed. 95 (1895).

172 . Id. at 163-64, 16 S.Ct. 139.

173 . Wilson v. Marchington, 127 F.3d 805, 810 (9th Cir.1997).

174 . See, e.g., Fredericks v. Eide-Kirschmann Ford, Mercury, Lincoln, Inc., 462 N.W.2d 164, 167-68 (N.D.1990); Mexican v. Circle Bear, 370 N.W.2d 737 (S.D.1985); Custody of Sengstock v. San Carlos Apache Tribe, 165 Wis.2d 86, 477 N.W.2d 310 (App.1991).

175 . See Wilson, 127 F.3d at 809.

176 . See id. at 810 (establishing these factors as guidelines for the federal courts after reviewing the Hilton decision, the Restatement (Third) of Foreign Relations Law, and principles of Indian law).

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178 . See Hilton, 159 U.S. at 202-03, 16 S.Ct. 139.

179 . See Restatement (Third) of Foreign Relations Law, § 482 cmt. b (1986).

180 . See Wilson, 127 F.3d at 811.

181 . Relying on the Restatement (Third) of Foreign Relations Law, the Ninth Circuit also held that federal courts have the discretion to deny recognition to a tribal judgment if (i) the judgment was obtained by fraud; (ii) the judgment conflicts with another final judgment that is entitled to recognition; (iii) the judgment is inconsistent with the parties’ contractual choice of forum; or (iv) recognition of the judgment, or the cause of action upon which it is based, is against the public policy of the United States or the forum state in which recognition is sought. See Wilson, 127 F.3d at 810. Because the facts of this case do not implicate any of these discretionary factors, we do not decide the extent to which our state courts could also, in their discretion, deny recognition to tribal decisions based on them.

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183 . Wilson, 127 F.3d at 810.

184 . See Dissent at 801-803.

185 . The dissent's concerns about the race to the courthouse appear to be overstated and speculative. To view application of tribal law as merely an attempt to circumvent state laws such as Rule 90.3’s child support guidelines is essentially to argue that tribal courts are inadequate, a conclusion soundly rejected by federal laws such as ICWA.

186 . See, e.g., 25 U.S.C. § 1903(5).

187 . See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n. 32, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (noting that "[a] tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community”).

188 . See Restatement (Third) of Foreign Relations Law, § 482 cmt. b (1986).

189 . See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 560, 136 L.Ed.2d 473 (1996).

190 . We recognize that Ms. John considers the tribal court's order to have been merely temporary, and therefore believes that the issue posed is whether state courts should be able to interfere in pending tribal court proceedings. It is unclear to us from the record whether Judge Titus considered her order to be temporary or final. In the state system, superior courts regularly issue custody orders that are deemed final and appeal-able even though the orders provide that custody will be re-examined when a child reaches school age. See, e.g., West v. Lawson, 951 P.2d 1200, 1201-02 (Alaska 1998). We therefore treat the tribal order as final for purposes of our comity analysis.

But we note that the result in this case would be the same regardless of whether the tribal order was temporary or final. Although the UC-CJA and the PKPA do not apply to tribal court orders, the policy rationale underlying these acts is instructive. Both the UCCJA and the PKPA were enacted in part to prevent litigation of the same custody dispute in separate jurisdictions. See 28 U.S.C. § 1738A; AS 25.30.010, Historical and Statutory Notes. Each of the statutes includes a provision instructing state courts to refrain from exercising jurisdiction over a custody dispute that is already being litigated in another state. See 28 U.S.C. § 1738A(g); AS 25.30.050. In fact, this court has recognized that the UC-CJA’s prohibition against contemporaneous litigation in multiple forums is so strong that an Alaska court should decline to exercise jurisdiction over a case pending in another state’s court even if it is unclear that the other state has subject matter jurisdiction. See Rexford v. Rexford, 631 P.2d 475, 479 (Alaska 1980) (citing UCCJA Prefatory Note, 9 Uniform Laws Annotated at 116-18). Applying the policy conclusions embodied in these acts, we believe that superior courts should refrain from interfering in pending tribal court proceedings absent unusual circumstances. Once a tribal court has reached a final decision, the comity doctrine will determine the decision's enforceability in state court.