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Judge upholds decision on tribal child custody

Posted: Tuesday, August 27, 2002

ANCHORAGE (AP) -- A federal court judge has upheld the state Supreme Court's landmark 1999 decision recognizing shared jurisdiction between the state and tribal courts in Alaska over child custody matters.

The written decision in Baker vs. Northway, issued by Judge Russel Holland on Aug. 20, is the latest development in a custody dispute involving the Native village of Northway. In the decision handed down earlier this month Holland wrote that the state court had already concluded that the Native village of Northway is a federally recognized tribe and he didn't have the authority to reconsider that issue.

John Baker has battled for full custody of his two boys since 1995, when a tribal court split care between him and his ex-wife, Anita Adams. Baker went to the state Superior Court seeking full custody, saying the village didn't have the right to decide who would be the boys' primary caretaker.

But the Alaska Supreme Court broke with a decades-old state policy of not recognizing tribal courts in Alaska when it ruled that the state should respect the tribal court's decision. The court's 3-2 decision concluded that Northway is a federally recognized tribe. That position was supported in friend-of-the-court briefs by the state and federal governments.

Holland said he can't issue another decision on whether Northway is a federal tribe or whether its tribal court could share jurisdiction with the state.

''Because the premise of this suit is the same as that already litigated in state court, the relief requested cannot be granted without impermissibly reviewing and reversing the Alaska Supreme Court,'' he wrote.

Andrew Harrington, who represented Adams in the federal case, said it was appropriate for Holland to respect the state court's decision. Harrington and the village asked for the case to be dismissed on the grounds that the state had already decided it, he said.

''Ms. Adams is obviously gratified by the federal court decision and is ready to have the tribal court decide her case,'' Harrington said. ''We're quite happy with that.''

Donald Mitchell, Baker's attorney, said he disagreed with Holland's decision, calling it regrettable and unfortunate.

''I would not have agreed to represent Mr. Baker in this case if, after investigating, I did not believe the federal court had jurisdiction over Mr. Baker's claim,'' he said.

Another issue was whether the two boys were represented properly in state court. Holland wrote that a custody lawsuit, ''by its very nature, is designed to provide substantial protection for the children whose custody is at issue.''

Mitchell said his client was still deciding whether he will appeal the case to the U.S. 9th Circuit Court of Appeals.

The dismissal means the case is back in the tribal court's hands, Harrington said. Both Baker and Adams want custody of the 10- and 11-year old children during the school year, he said.



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