      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@appellate.courts.state.ak.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

HAROLD HAWKINS,                                )
                                               )        Supreme Court No. S-14812
              Appellant,                       )
                                               )        Superior Court No. 2NO-11-00148 CI
      v.                                       )
                                               )        OPINION
ROSALIND ATTATAYUK,                            )
                                               )        No. 6888 – April 11, 2014
              Appellee.                        )
                                               )

              Appeal from the Superior Court of the State of Alaska,
              Second Judicial District, Nome, Ben Esch, Judge.

              Appearances: Samuel J. Fortier, Fortier & Mikko, P.C.,
              Anchorage, for Appellant. Sarah M. Carver, Bethel, and
              James J. Davis, Jr., Anchorage, Alaska Legal Services Corp.,
              for Appellee.

              Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
              Bolger, Justices.

              STOWERS, Justice.

I.    INTRODUCTION
              Harold Hawkins and Rosalind Attatayuk married and lived together in
St. Michael until 1981, when they dissolved their marriage. Hawkins was awarded the
couple’s home in the dissolution and continued to reside on the property, which was
federally owned. In 1993 Attatayuk applied for and received a restricted townsite deed
to the land by allegedly fraudulent means. She brought a trespass action against
Hawkins, alleging that she had undisputed title to the land. Hawkins denied this
allegation. The superior court ruled on summary judgment that Attatayuk’s restricted
townsite deed gave her title to the land. Because Alaska state courts do not have subject
matter jurisdiction to adjudicate title or right to possession of restricted townsite
property, the only issue presented in this appeal is whether the superior court adjudicated
title to the land in question. We hold that the superior court did adjudicate title and, as
a result, exceeded its jurisdiction.
II.    FACTS AND PROCEEDINGS
              In 1926, Congress enacted the Alaska Native Townsite Act, extending the
provisions of the federal townsite laws to Alaska Natives.1 Under the Townsite Act,
Native townsite residents could receive a restricted deed that was inalienable absent
federal approval.2 The Townsite Act was repealed in 1976, but a savings provision
protected all land use rights existing at that time.3 Federal regulations allowed qualifying
Native residents to apply for a restricted townsite deed after the Townsite Act was
repealed.4
       A.     Facts
              Harold Hawkins and Rosalind Attatayuk married in 1972 and lived in
St. Michael in a house they owned located on federal land. In 1981 Attatayuk moved to


       1
             Former 43 U.S.C. §§ 733-36, 44 Stat. 629 (1926); United States v. Atl.
Richfield Co., 435 F. Supp. 1009, 1015 (D. Alaska 1977), aff’d 612 F.2d 1132 (9th Cir.
1980).
       2
              44 Stat. 629; 43 C.F.R. § 2564.4 (2014).
       3
            Federal Land Policy and Management Act, P.L. No. 94-579, 90 Stat. 2743
(1976); People of S. Naknek v. Bristol Bay Bor., 466 F. Supp. 870, 872 n.3 (D. Alaska
1979).
       4
              43 C.F.R. § 2564.1 (2014).

                                            -2-                                       6888

Nome, but the couple did not dissolve their marriage until 1988. In their petition for
dissolution, the only asset that the couple listed as real property was: “house 20 x 30 two
story in St. Michael.” Hawkins and Attatayuk stated that they jointly owned the house
and sought to have the court award it to Hawkins, which the court did. Hawkins
continued to live in the house after the dissolution. He opened a restaurant on the
property and slowly made improvements over the years.
               In December 1993 Attatayuk applied for a restricted townsite deed to the
property. She signed her name certifying that “there is no one living on, or claiming an
interest in, this tract other than myself,” despite the fact that she knew there was a house
on the property and that the house had been awarded to Hawkins in their dissolution
decree. She stated that the only improvement on the property was a steam bath. The
federal government granted Attatayuk the restricted townsite deed in March 1994. It is
unclear when Hawkins learned that Attatayuk had applied for and received the deed, but
it appears that he discovered this fact no later than 2010 or 2011.
       B.      Proceedings
               In August 2010 Hawkins invited his and Attatayuk’s daughter, Marcella,
and her family to live in his house and work at the restaurant. But in May 2011
Hawkins, acting pro se, filed a complaint to evict Marcella and her family, alleging that
she had broken numerous pieces of his personal property and had damaged the house
itself. Immediately afterwards, on May 18, 2011, Attatayuk filed an action against
Hawkins for trespass in order to allow her daughter to remain on the property. In her
complaint Attatayuk alleged, “There is no dispute that the land . . . belongs to
Ms. Attatayuk.” Later in the complaint she asserted that “[d]efendant does not dispute
plaintiff’s title to the land.”
               Two days later, on May 20, 2011, the court held a hearing on both



                                            -3-                                       6888

Attatayuk’s trespass complaint and Hawkins’s eviction action against Marcella.5 At the
hearing Hawkins explained that the dissolution decree gave him a right to have his house
on the property. He also stated that Attatayuk’s deed was void because she was not
living on the property when she applied for the deed, and she had not notified the
occupant of the land, Hawkins, that she was applying for the deed. The court then asked,
“[A]re you suggesting, Mr. Hawkins, that you believe the issue of ownership of that land
is in question?” Hawkins replied, “I do, your honor.”
              On June 29, 2011, Hawkins, proceeding pro se, filed a written answer to
Attatayuk’s complaint. Although he did not affirmatively plead fraud, he “denied” her
assertions that “[t]here is no dispute that the land . . . belongs to Ms. Attatayuk,” and that
“[d]efendant does not dispute plaintiff’s title to the land.” He also “denied” her
allegations that “[d]efendant has no right to be on the land,” and that his house was
“sitting on Attatayuk’s Native land.”
              On November 16, 2011, Attatayuk moved for partial summary judgment.
She argued that “there are no facts in dispute in this case: Ms. Attatayuk has legal title
to the at-issue land.” Hawkins did not file a response to the motion for partial summary
judgment. The court granted the motion, finding that “[Attatayuk] has title to the subject
property,” and “[Hawkins] has no right to place property on the land.” The court also
granted a motion in limine prohibiting Hawkins from arguing “fraud by Ms. Attatayuk
in obtaining the restricted deed” at trial.
              In March 2012 Hawkins hired an attorney and filed a motion to dismiss the
case for lack of subject matter jurisdiction. He argued that the superior court “lack[ed]
subject matter jurisdiction to determine issues of ownership, trespass or property rights


       5
             The court explained that it held the hearing on Attatayuk’s action for
trespass two days after filing “because the parties basically were going to be here
anyway.”

                                              -4-                                       6888
under state law, because federal law controls the field entirely.” Attatayuk responded
that “here, title to Ms. Attatayuk’s [restricted townsite deed] is not at issue.” The
superior court denied the motion.
             The superior court held a jury trial on the issue of damages. The jury found
that Attatayuk was entitled to $123.12 per month for the use of her land for 18 months
and awarded her $2,216.16 in total damages. Attatayuk moved for $443 in attorney’s
fees and for final judgment. Hawkins countered by arguing, again, that the superior
court lacked jurisdiction over the case. The superior court entered final judgment for
Attatayuk on May 31, 2012. Hawkins appeals.
III.   STANDARD OF REVIEW
             We review questions of law, including questions of subject matter
jurisdiction, de novo.6
IV.    DISCUSSION
             Hawkins’s central argument is that the superior court lacked subject matter
jurisdiction. In the alternative, he contends that: (1) the grant of summary judgment was
erroneous because there were still issues of material fact, and the court failed to inform
him of the “proper procedures”; (2) the court’s order prohibiting Hawkins from arguing
fraud in Attatayuk’s deed at trial was erroneous; (3) some of the jury instructions were
erroneous; and (4) the superior court denied Hawkins procedural and substantive due
process. Because we hold that the superior court did not have subject matter jurisdiction,
we do not reach his other arguments.



       6
              Foster v. State, Dep’t of Transp., 34 P.3d 1288, 1290 (Alaska 2001)
(questions of subject matter jurisdiction reviewed de novo); DeVaney v. State, Dep’t of
Revenue, Child Support Enforcement Div. ex. rel. DeVaney, 928 P.2d 1198, 1200
(Alaska 1996) (questions of law reviewed de novo) (citing Jones v. Jennings, 788 P.2d
732, 735 (Alaska 1990)).

                                           -5-                                      6888

       A.	    The Superior Court Did Not Have Subject Matter Jurisdiction To
              Adjudicate The Ownership Or Right To Possession Of A Restricted
              Townsite Lot.
              “The doctrine of subject matter jurisdiction applies to judicial and
quasi-judicial bodies to ensure that they do not overreach their adjudicative powers.”7
Subject matter jurisdiction is “the legal authority of a court to hear and decide a
particular type of case.”8 Consequently, subject matter jurisdiction is a threshold
determination and prerequisite for a court to hear a case.9 “As a court which does not
have subject matter jurisdiction is without power to decide a case, this issue cannot be
waived.”10 The issue of subject matter jurisdiction “may be raised at any stage of the
litigation and if noticed must be raised by the court if not raised by one of the parties.”11
              Hawkins is correct that the superior court lacked subject matter jurisdiction
to adjudicate title to the property in question. State courts do not have subject matter
jurisdiction to adjudicate the title or right to possession of restricted townsite lots. In
1953 Congress enacted Public Law 280, codified in part as 28 U.S.C. § 1360, which



       7
            Nw. Med. Imaging, Inc. v. State, Dep’t of Revenue, 151 P.3d 434, 438
(Alaska 2006).
       8
              Id. (citing ERWIN CHEMERINSKY , FEDERAL JURISDICTION 257 (3rd ed.
1999)).
       9
                See id. (“Subject matter jurisdiction is a prerequisite to a court’s ability to
decide a case.”); Gilbert v. Gladden, 432 A.2d 1351, 1353-54 (N.J. 1981) (holding
that . . . subject matter jurisdiction involves “a threshold determination as to whether the
court is legally authorized to decide the question presented”).
       10
              Robertson v. Riplett, 194 P.3d 382, 386 (Alaska 2008) (quoting Wanamaker
v. Scott, 788 P.2d 712, 714 n.2 (Alaska 1990)).
       11
             Hydaburg Co-op. Ass’n v. Hydaburg Fisheries, 925 P.2d 246, 248 (Alaska
1996) (quoting Burrell v. Burrell, 696 P.2d 157, 162 (Alaska 1984)).

                                             -6-	                                        6888

granted states, including Alaska,12 limited civil jurisdiction over cases arising in “Indian
country.”13 But the law does not “confer jurisdiction upon the State to adjudicate, in
probate proceedings or otherwise, the ownership or right to possession of [trust or
restricted] property or any interest therein.”14 Because the United States Congress has
not granted jurisdiction, Alaska state courts do not have subject matter jurisdiction to
adjudicate any dispute regarding the ownership of Alaska Native townsite property.15
              Attatayuk’s claim to the land rests on a restricted townsite deed, which
makes the land “subject to a restriction against alienation imposed by the United
States.”16 Both parties agree that the superior court did not have jurisdiction to
adjudicate title to the land in question. This is consistent with our precedent. In
Ollestead v. Native Village of Tyonek, we held that “[s]ubsection 1360(b) precludes state
courts from adjudicating the ownership or right to possession of property or an interest
therein belonging to an Indian tribe or community that is held in trust by the United
States or is subject to a restriction against alienation imposed by the United States.”17
Nonetheless, Attatayuk argues that the superior court had subject matter jurisdiction




       12
             Alaska was added to the bill by an amendment in 1958. Pub. L. No.
85-615, § 2, 72 Stat. 545 (1958).
       13
              28 U.S.C. § 1360(a) (2012).
       14
             Heffle v. State, 633          P.2d 264, 267 (Alaska 1981) (quoting
28 U.S.C. § 1360(b) (1976)).
       15
            C OHEN ’S H ANDBOOK       OF   FEDERAL INDIAN LAW 551-53 (Nell Jessup
Newton ed., 2012).
       16
              Heffle, 633 P.2d at 267.
       17
              560 P.2d 31, 34 (Alaska 1977).

                                            -7-                                       6888

because either Hawkins did not contest ownership of the land, or his claim to the land
was a “sham” claim.
       B.	    Hawkins Contested The Validity Of Attatayuk’s Restricted Townsite
              Deed.
              Hawkins clearly contested the title and right to possession of the property.
On May 20, 2011, two days after Attatayuk filed her complaint against Hawkins for
injunctive relief and damages for trespass, the court held a hearing on both Attatayuk’s
trespass complaint and the eviction complaint Hawkins had filed against their daughter.
At the hearing Hawkins argued that the dissolution decree gave him a right to have his
house on the property. He also contended that Attatayuk’s restricted townsite deed was
void because she had not notified the occupant of the land that she was applying for the
deed and because she was not living on the land at the time. The court then asked,
“[A]re you suggesting, Mr. Hawkins, that you believe the issue of ownership of that land
is in question?” Hawkins replied, “I do, your honor.” He then alleged that Attatayuk
had committed fraud by not disclosing when she applied for a deed that Hawkins lived
on the land and that he had received the house in the divorce. When he filed his formal
answer, he denied Attatayuk’s assertion that “[t]here is no dispute that the
land . . . belongs to Ms. Attatayuk.” He also denied the remainder of her allegations that
the title was not in dispute.
              Not only did Hawkins clearly contest the ownership of the property, the
superior court plainly adjudicated the issue by awarding partial summary judgment on
the question of title. The court, in granting Attatayuk’s motion for partial summary
judgment, determined that “[Attatayuk] has title to the subject property,” and “[Hawkins]
has no right to place property on the land.” The court’s conclusion that “[Attatayuk] has
title to the subject property” was undisputably an adjudication of an ownership interest
in restricted townsite property. But under 28 U.S.C. § 1360(b) the superior court may


                                           -8-	                                     6888

not adjudicate “the ownership or right to possession of such [trust] property or any
interest therein.”
              Attatayuk also argues that Hawkins was required to either assert his fraud
claim in his answer to Attatayuk’s complaint or amend his answer to do so after retaining
counsel. The Alaska Rules of Civil Procedure provide that affirmative defenses such as
fraud are to be included in the answer,18 but Hawkins was pro se when he filed his
answer and likely unaware of this procedural requirement. We have held that the
superior court “should generally hold the pleadings of pro se litigants to less stringent
standards than those of lawyers.”19 This leniency is especially appropriate “when lack
of familiarity with the rules rather than gross neglect or lack of good faith underlies
litigants’ errors.”20 And when Hawkins retained counsel, counsel entered a limited
appearance solely to contest the court’s jurisdiction.
              Here, both Attatayuk and the superior court were aware that Hawkins’s
defense against Attatayuk’s trespass action rested on his challenge to Attatayuk’s
ownership of the land; Hawkins had made this very clear at the first hearing. When
Hawkins realized he still needed to file a written answer despite asserting his defenses
at the hearing, he made a good faith effort to do so. He clearly denied that Attatayuk had
title to the property, even if he did not clearly assert as an affirmative defense that his
reason was fraud. Moreover, Hawkins later retained counsel for the limited purpose of
contesting subject matter jurisdiction, and his motion to dismiss clearly put at issue his


       18
              Alaska R. Civ. P. 8(b).
       19
              Gilbert v. Nina Plaza Condo Ass’n, 64 P.3d 126, 129 (Alaska 2003).
       20
              Id. (quoting Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002)) (internal
quotation marks omitted); see also DeNardo v. Calista Corp., 111 P.3d 326, 330 (Alaska
2005) (holding that the court has “a policy against finding unintended waiver of claims
in technically defective pleadings filed by pro se litigants”).

                                           -9-                                       6888

challenge to Attatayuk’s restricted townsite deed. Finally, there can be no serious
dispute that Hawkins alleged Attatayuk obtained her restricted townsite deed by fraud:
the superior court granted Attatayuk’s motion in limine to preclude Hawkins from
putting on evidence or arguing fraud at trial.
       C.     Hawkins’s Claim Was Not A “Sham” Claim.
              Attatayuk argues that title was not in dispute because, as she repeatedly
asserted in oral argument, Hawkins’s claim was a “sham” claim. She argues that
Hawkins was required to introduce evidence that his claim was not a “sham” before the
superior court could actually adjudicate title. In her view, Hawkins could not do this
because “[a fraud or ownership] claim would have been barred as a matter of law” since
“[a] suit to vacate a [federal] patent . . . must be brought within six years of issuance.”
In essence she argues that the court had subject matter jurisdiction because there was no
viable objection to her restricted deed because Hawkins’s ability to challenge her
restricted townsite deed was barred by the statute of limitations. Thus, she asks this court
to look behind the jurisdictional curtain and find that Hawkins has no viable claim by
doing precisely what 28 U.S.C. § 1360(b) forbids — adjudicating any possible defense
Hawkins might have to her restricted townsite deed, or adjudicating her statute of
limitations defense to Hawkins’s fraud claim. As we have explained, state courts do not
have jurisdiction to adjudicate disputes regarding restricted title, and this includes
passing judgment on the viability of an underlying claim of restricted title or a defense
to that claim. Attatayuk asks us to examine the merits of Hawkins’s defenses to her
restricted townsite deed in order to find that the superior court had jurisdiction. Such an
argument is untenable. If the superior court lacked subject matter jurisdiction to
adjudicate title to the restricted townsite deed, it lacked jurisdiction to adjudicate any
aspect of the deed’s validity.



                                           -10-                                       6888

V.    CONCLUSION
             We conclude that the superior court adjudicated title to restricted township
land and thereby acted without subject matter jurisdiction.        We REVERSE and
REMAND with directions to the superior court to DISMISS the case.21




      21
              In light of this disposition, the award of attorney’s fees in favor of
Attatayuk must be vacated. Hawkins is the prevailing party and is entitled to an award
of attorney’s fees in the superior court. See Foster v. State, Dep’t of Transp., 34 P.3d
1288, 1291 (Alaska 2001) (“[W]e hold that the court could award . . . costs and
attorney’s fees under Civil Rules 79 and 82, even after it concluded that it lacked
jurisdiction over [the] claims.”).



                                         -11-                                      6888
