FABE, Chief Justice.
J.W. is the son of Jeanette Myre, a member of the Asa'carsarmiut Tribe, and John Wheeler, a non-member. In 2007 Myre petitioned the Asa'carsarmiut Tribal Court to assume jurisdiction over the custody of J.W.
In 2012 Myre was arrested for child endangerment, and the State of Alaska assumed protective custody of J.W. Wheeler moved for modification of the custody order in the superior court. The Asa'carsarmiut Tribal Council intervened in the superior court proceeding to argue that the superior court lacked jurisdiction to modify the tribal court custody order. The superior court concluded it had modification jurisdiction and determined there had been substantially changed circumstances such that modification was in J.W.'s best interests.
The superior court awarded Wheeler primary physical custody. Neither Wheeler nor Myre has appealed the superior court's decision, but the tribal council appeals, arguing that the superior court lacked modification jurisdiction. The narrow question before us in this appeal is thus whether the tribal council has standing to appeal the superior court's modification decision in light of the parents' election not to appeal that decision. We conclude that under this circumstance, the tribal council does not have standing, and we therefore dismiss the appeal.
J.W. was born in 2005 to John D. Wheeler III and Jeanette Myre. Myre is a member of the Asa'carsarmiut Tribe, a federally recognized tribe,
In December 2007 Myre successfully petitioned the Asa'carsarmiut Tribal Court to assume jurisdiction over the custody of J.W. The tribal court held a custody hearing that month, in which both Myre and Wheeler participated. The tribal court awarded primary physical and sole legal custody to Myre, emphasizing the importance of fostering J.W.'s awareness of his Asa'carsarmiut cultural heritage and identity. Wheeler was granted limited visitation rights. In its order, the tribal court noted that it would "retain jurisdiction over the custody of [J.W.]"
In 2008 Wheeler petitioned the tribal court to modify the child support order and to request additional visitation with J.W. The tribal court declined to modify the order and denied the request for additional visitation. Wheeler also petitioned in 2009 asking the tribal court to reopen the custody case on the ground that J.W. was old enough to travel between Alaska and Washington. There is no evidence in the record that the tribal court responded to this petition.
In December 2011 J.W. traveled to Washington to spend Christmas with Wheeler. J.W. was scheduled to return to Alaska on December 30, but Wheeler kept J.W. in Washington. On December 30 Wheeler emailed Jerald Reichlin, the lawyer for the tribal court, informing him that he believed that there had been "a dramatic change in circumstances" that impacted J.W.'s welfare. Specifically, Wheeler informed Reichlin that he had been unable to contact Myre and that he believed that she was in hiding from the father of her other two children, George Johnson. In his email, Wheeler wrote: "I respectfully request a hearing before the Asa'Car[s]a[r]m[iu]t Tribal Council, seeking `full custody' of my son." Two days later, Wheeler further informed Reichlin that Myre had been on a "binge, blackout style, drunk" and that Johnson had made death threats to her; he indicated that he had spoken with Myre and that she had "agreed that [J.W.] was safer and in better care down here in
It does not appear from the record that Wheeler had further correspondence with Reichlin or the tribal court.
In a later affidavit, Myre stated that in early January 2012 she contacted the tribal court for assistance in regaining custody of J.W. She reported that the tribal court did not call her back for several days and that the tribal court administrator then told her that the tribal court was unable to help her. Myre stated that another tribal court administrator later agreed to contact Wheeler, but that the tribal administrator told Myre that she had not received a response from Wheeler.
On January 11, 2012, Wheeler filed a complaint for custody in superior court in Anchorage. His initial complaint did not disclose the prior tribal court proceedings or custody order. The jurisdiction affidavit indicated that Myre and J.W. had resided in Anchorage for the previous seven months, from June 2011 to December 2011. On February 8 Wheeler filed a petition for a domestic violence protection order in which he disclosed the existence of the tribal court child custody order.
Myre responded to Wheeler's custody complaint on February 10 by filing a motion to compel the return of J.W. and seeking a domestic violence protective order on the basis of custodial interference. She also petitioned the superior court to register the tribal court child custody order and to enforce it on an expedited basis under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Myre indicated that "she will likely seek [a] corresponding modification of the tribal court order to reflect the need to limit and supervise Mr. Wheeler's future visitation and contact with [J.W.]" There is no evidence in the record of any attempt by Myre to modify the custody order in tribal court.
In her motion for expedited consideration, Myre included a footnote regarding tribal court jurisdiction:
The superior court denied Myre's petition to register the tribal court custody order, concluding that "the Alaska legislature declined to include tribal court custody orders within the scope of those orders that may be registered and enforced under [the UCCJEA]" and therefore "the statute must be interpreted as being limited to enforcement of state court child-custody determinations." The superior court noted that Washington had included tribal court custody orders when it adopted the UCCJEA and that "Myre should be successful in registering the custody order in the specific county of Washington where [J.W.] is located, and thereby secure its enforcement by the superior court
The superior court held a domestic violence protection order hearing in February 2012 and issued supplemental findings discussing the tribal court custody order. Specifically, the superior court found that "Mr. Wheeler's retention of [J.W.] contravenes the established, lawful tribal court custody order as Ms. Myre is the lawful custodian." The superior court therefore concluded that Wheeler had committed the crime of custodial interference; the superior court granted Myre's petition for a long-term domestic violence protection order against Wheeler and returned J.W. to Myre's custody.
In October 2012 the State of Alaska assumed custody of J.W. and initiated a Child In Need of Aid (CINA) proceeding against Myre following an incident during which a vehicle driven by George Johnson with Myre, J.W., and her two other children as passengers was stopped by police officers. Myre was arrested and charged with endangering the welfare of the children as a result of being impaired by intoxication. Johnson was arrested and charged with driving under the influence and child endangerment. Wheeler filed a motion in the superior court for immediate modification of custody. In her response to this motion, Myre "recognize[d] entirely the appropriateness under the circumstances of modifying the interim custody arrangement in this matter so that [J.W.] [could] be suitably placed in a home that is best for him, and also under[stood] that such placement [would] likely be with his biological father." (Emphasis in original.) But the superior court denied Wheeler's motion and stayed the custody action pending developments in the CINA proceeding.
The superior court scheduled a trial on the custody matter for early April 2013. The week before trial, the Asa'carsarmiut Tribal Council
The superior court concluded that the tribal council did not meet the requirements of intervention as a matter of right and that the intervention "is being made extremely late in this proceeding and at least a year after the Council knew or should have known not only that the case existed but that its 2007 custody order would not be registered." The superior court also made clear its determination that the superior court proceedings were "in no way in derogation of the 2007 [tribal court] order or the Council's jurisdiction," and were "not designed to set aside or invalidate the 2007 order." Rather, the superior court concluded that Wheeler was "seeking to modify the earlier custody decision in light of substantial changes in circumstances of the parties that have occurred over the years since the Council's order was issued" (emphasis in original) and that the superior court had concurrent jurisdiction with the tribal court to modify the child custody order. Nevertheless, the superior court granted permissive intervention to the tribal council for the "limited purpose of defending its jurisdiction and preserving the issue for appeal." The tribal council did not otherwise participate in the custody trial.
At trial the superior court considered the testimony of several witnesses, including Wheeler and Myre, as well as a custody investigator's report. In its findings of fact and conclusions of law, issued in early May
Myre requested that the superior court stay and reconsider its final custody decree and findings of fact and conclusions of law. The superior court declined to stay enforcement of the decree but provided both Wheeler and the tribal council with an opportunity to respond to Myre's reconsideration motion and her objections to the court's findings and conclusions. Both Wheeler and the tribal council submitted additional briefing, and because the record does not reflect any ruling on reconsideration by the superior court within 30 days of the responsive briefing, Myre's motion was deemed denied.
Neither Myre nor Wheeler appealed the superior court's custody modification decree, but the tribal council filed an appeal to this court in September 2013. Wheeler opposes the tribal council's appeal on standing grounds.
"Issues of standing are questions of law that we review de novo."
This case presents an unusual procedural posture in that neither of the parties who actually contested custody in the superior court has appealed the superior court's custody order. Instead, the tribal council, which was granted permissive intervention by the superior court for the "limited purpose of defending its jurisdiction and preserving the issue for appeal," brings this appeal to "vindicate its retained sovereignty."
Wheeler has consistently opposed the tribal council's involvement in this case and now challenges the tribal council's standing to appeal the superior court's custody order, arguing that the tribal council lacks a cognizable injury-in-fact. The tribal council responds (1) that Wheeler did not raise the issue of the tribal council's standing in the superior court and therefore this court should not consider it on appeal; and (2) that this court's precedent requires only an "identifiable trifle" for a party to have "standing
"As a general rule, we will not consider arguments first raised on appeal."
In his opposition to the tribal council's motion to intervene, Wheeler contested the tribal council's intervention under both Alaska Civil Rule 24(a)
Wheeler's argument against the tribal council's standing on appeal certainly could have been predicted from his opposition to its intervention. We have recognized that arguments about the sufficiency of an interest to intervene under Rule 24(a) are also relevant to the sufficiency of an interest to establish interest-injury standing.
"Standing is a rule of judicial self-restraint based on the principle that courts
In its limited appearance at the superior court's custody trial, the tribal council stated that its concern was with "the dignity of the tribal court and the tribal court's orders" and that it did not intend to present evidence or otherwise participate in determining the best interests of J.W. or the appropriate custody arrangement. On appeal the tribal council similarly characterizes its interest as "vindicat[ion of] its retained sovereignty."
It is far from self-evident that the governing body of a sovereign entity, such as the tribal council, has standing to bring an appeal of a child custody determination when the parents themselves do not appeal and are apparently satisfied with the trial court's decision. The Indian Child Welfare Act (ICWA) provides for the right of tribal intervention in state court proceedings governed by the act.
In its initial briefing, the tribal council cites a single eminent domain case to support its argument. In United States v. City of Tacoma, Washington,
Following oral argument, the tribal council provided this court with additional authority in support of its contention that it had standing to appeal. But like City of Tacoma, the cases cited do not speak clearly or persuasively to the tribal council's standing to appeal in this matter. The supplemental authority includes cases on ballot initiative sponsors' standing to appeal judicial invalidation of the initiative,
The tribal council also cites Matter of J.R.S.,
Myre chose not to file an appeal of the superior court's custody modification decision,
We emphasize that neither party seeking custody of J.W. appealed the superior court's decision. The court system exists to resolve cases or controversies that arise between parties, and its proper functioning requires careful attention to those parties' wishes and actions. Individuals and organizations may sincerely seek judicial acceptance of legal theories, but that sincerity does not expand the courts' role beyond resolving active cases or controversies at the request of involved parties.
Our decision to dismiss this appeal should not be read as an invitation to grant tribal courts anything less than "the respect to which they are entitled as the judicial institutions of sovereign entities."
We conclude that because the parents elected not to appeal the superior court's decision, the tribal council's interest does not rise to the level necessary to establish standing to appeal the child custody modification order.
We DISMISS the tribal council's appeal for lack of standing.