Alaska Supreme Court and Family Law Jurisdiction

I have been waiting for this opinion to come out for ... nearly a year at this point. In early summer of last year, I received notice of this appeal and the Alaska Supreme Court's order that the tribal court should exercise jurisdiction, and that the opinion would be forthcoming. Last week, the court finally released Mallette v. Evans, S-19313 (Aug. 7, 2026). Interestingly, last year around the same time, I received a different trial court decision out of Ketchikan dealing with the same issue, but addressed it in a different (and I'm going to say it here, more thoughtful) way.

Over the past two years, I have been receiving more and more questions about tribal court jurisdiction in the context of family law, not ICWA cases. ICWA and relevant ICWA state laws make -relatively- clear how jurisdiction must be delineated when tribes and states have concurrent jurisdiction over a family. However, there are no similar laws or rules that govern domestic law, or family law--particularly in situations where one parent is non-Indian, and/or the family does not live on tribal land. Or when one parent files a custody petition in one court, and another parent files for a protection order in another. Without getting into exact fact patterns, there are times where the tribal court should clearly have jurisdiction and other times where the facts would make that an increasingly difficult question. Periodically these cases go federal with varying results and stress me out.

While the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs states when there are jurisdictional fights, unless a tribe has specifically adopted it or a similar tribal law, there is no reason for a tribal court to follow its requirements. Tribes are also not bound by the Parental Kidnapping Prevention Act (PKPA). Therefore, in the context of guardianships, custody, divorce, child support, etc., decisions regarding tribal and state jurisdiction are all over the place. Using the Montana factors also doesn't work very well for family law (tbf does it work very well for any area of law?).

I've been watching for a while to see if tribal jurisdiction over family law questions would diverge from land-based jurisdiction analysis or Montana. There are a lot of cases out of Alaska that deal with these issues and necessarily choose a different route. One case I use a lot in this area, State of Alaska v. Central Council of Tlingit and Haida Indian Tribes of Alaska, is very long, but goes into detail as to how the Alaska Supreme Court uses a different framework for jurisdiction over non-Indians in family law cases than the Montana framework. Even then, the Court gave an "in the alternative" argument applying Montana. But because of Alaska's relatively unique line of cases where their courts had to address tribal jurisdiction in the absence of clear reservation boundaries, their reasoning lends itself to a more nuanced discussion of why tribes must have jurisdiction above and beyond land-holdings. In Central Council, the court based its reasoning not on Montana, but on the inherent sovereignty of tribes and their interest in their members well-being. In this case, the state upheld the Tribe's exercise of jurisdiction over a non-Indian parent of a tribal citizen child to collect child support.

However, outside of Alaska, the determination of jurisdiction in family matters where there either is or arguably is concurrent jurisdiction as between a state and a tribe has been less ... clear. The Eighth Circuit issued an opinion that was extremely unhelpful this past December denying tribal jurisdiction in a divorce and custody proceeding that had long since been decided by the tribal court. This is despite other Eighth Circuit cases that seemed to indicate a different direction. At some point I will break that one down too, but I'm still too angry to read it again.

So in this long-winded wind up, the Alaska Supreme Court in Mallette v. Evans decided to use race to the courthouse reasoning to determine which sovereign had jurisdiction to hear the child custody case. While this rightly recognizes Alaska precedence and tribal court jurisdiction:

it takes a what is often a complicated question and boils it down to who filed in what court first rather than the additional question of which court has the most interest in the case. This means that while in this case the tribal court (may) have jurisdiction over the parties, in the same fact pattern where the filing is in state court first, the state court would exercise jurisdiction.

In the Eighth Circuit case I am not talking about here, there were very real reasons the tribal court had more interest in the case than the state court–including the division of property and issue of per cap and child support--regardless of who filed what first (in that case, the parties filed on the same day in different jurisdictions). I regularly get questions from tribal court judges and attorneys with incredibly complex fact patterns involving family law, including the application of tribal protection orders to state custody determinations, whether the filing of a tribal DVPO is "first in time" as compared to the filing of a custody petition, the physical location of both parties, the physical location of the kids, the tribal law jurisdiction provisions, and the existence of earlier in time proceedings. None of these can be easily answered by a first in time analysis.

In the trial court order from Ketchikan (which is available as an addendum filing in the Eighth Circuit case I am not talking about here as a record at ADDENDUM of APPELLEE FILED by Appellee Robert William Tix w/service 04/02/2025. [5502312] [24-3487] (BNW) [Entered: 04/02/2025 09:09 AM]), the judge there instead discussed the reasons for tribal jurisdiction and adopted the Teague factors, which arose out of the Wisconsin Supreme Court case, Teague v. Bad River Band. While the first factor is where the case was filed first, there are twelve additional factors for the judges of each court to consider:

This balancing test allows for a more nuanced assessment of a case and which court would be best poised to hear it--and includes specific considerations as to why the tribal court might have jurisdiction even if the case was filed in state court first.