                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 September 20, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    CHRISTOPHER YANCEY,

                Plaintiff-Appellant,
                                                         No. 10-6239
    v.                                            (D.C. No. 5:10-CV-00534-C)
                                                         (W.D. Okla.)
    TIMOTHY THOMAS;
    TAMMY THOMAS,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit
Judges.



         Christopher Yancey filed an action in the United States District Court for

the Western District of Oklahoma contending that Oklahoma state-court rulings

terminating his parental rights over his Indian child were invalid under the Indian

Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963. The district court



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
dismissed his action, determining that either federal abstention was mandated, or

the action was barred by the Full Faith and Credit Clause of the United States

Constitution (U.S. Const. art. IV, § 1) and 28 U.S.C. § 1738. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                  I. Background

      Much of the early history of the litigation involving Yancey’s parental

rights is described in an Oklahoma Supreme Court decision, In re Baby Boy L.,

103 P.3d 1099, 1101-03 (Okla. 2004). Tiffany Leatherman and Yancey are the

natural parents of Baby Boy L., born on October 4, 2002. Yancey is a member of

the Muscogee (Creek) Indian Nation of Oklahoma (the Nation), but Leatherman is

not a member of any Native American tribe. Yancey and Leatherman were

teenagers when Baby Boy L. was conceived, and they never married. Before the

child was born, Leatherman decided to place him for adoption, and she located a

couple who were interested in adopting him, appellees Timothy and Tammy

Thomas. Baby Boy L. has been in the Thomases’ custody since his birth.

      In December 2002, Leatherman brought an action in Oklahoma state court

to terminate Yancey’s parental rights and to determine Baby Boy L.’s eligibility

for adoption without Yancey’s consent. Leatherman appeared in court,

relinquished her parental rights, and consented to the adoption. Yancey appeared

in the proceedings and objected to the adoption. The Nation intervened and filed

a motion to dismiss, seeking the court’s compliance with the child-placement

                                        -2-
preferences of the ICWA. The ICWA provides “minimum Federal standards for

the removal of Indian children from their families and the placement of such

children in foster or adoptive homes which will reflect the unique values of Indian

culture.” 25 U.S.C. § 1902. In particular, the ICWA gives preference in adoptive

placement to members of the Indian child’s family or tribe, or other Indian

families, in the absence of good cause. See id. § 1915(a).

      In September 2003 the Oklahoma trial court determined that the ICWA was

not applicable and that Baby Boy L. was eligible for adoption without Yancey’s

consent. The Oklahoma Court of Civil Appeals affirmed, but the Oklahoma

Supreme Court reversed and remanded, holding that the ICWA applied and there

was insufficient evidence to find that Baby Boy L. was eligible for adoption

without Yancey’s consent.

      On remand following the Oklahoma Supreme Court’s decision, the trial

court appointed a guardian ad litem for Baby Boy L., and the Thomases’ attorney

entered an appearance and filed a petition for adoption. After a hearing the court

made the following findings in support of its granting the Thomases custody of

Baby Boy L.:

      1. The court finds that the [ICWA] applies. 2. The petitioners,
      Timothy and Tammy Thomas have shown by clear an[d] convincing
      evidence, including the testimony of a qualified expert witness, that
      custody of the minor child by the father is likely to result in
      emotional damage to the child. See 25 USC Section 1912(e) . . . .
      That for good cause shown pursuant to 25 USC 1915 the child is to
      be placed with Timothy and Tammy Thomas instead of the

                                        -3-
       preferences set forth under ICWA. The child is at risk of emotional
       trauma if the child is removed from the Thomas placement.

Aplt. App. at 112 (all-caps omitted). The Oklahoma Court of Civil Appeals

affirmed, holding that clear and convincing evidence supported the trial court’s

determination that there was good cause to deviate from the ICWA’s

child-placement preferences. The Oklahoma Supreme Court denied Yancey’s

petition for certiorari.

       After further proceedings, on February 19, 2008, the Oklahoma trial court

denied Yancey’s motion to transfer the case to Tribal Court. Also, it entered an

order that Baby Boy L. could be adopted without Yancey’s consent because clear

and convincing evidence showed that, during the relevant period preceding the

petition for adoption, Yancey had failed to contribute to the support of Baby Boy

L. and had failed to establish or maintain a substantial and positive relationship

with the child. On appeal the Oklahoma Court of Civil Appeals rejected

Yancey’s claim that the trial court had failed to comply with the ICWA and

affirmed the determination that Baby Boy L. was eligible for adoption without his

consent. The Oklahoma Supreme Court and the United States Supreme Court

denied Yancey’s petitions for review.

       On May 18, 2010, the Oklahoma trial court entered an order terminating

Yancey’s parental rights over Baby Boy L. The court found that the ICWA had

been complied with and that the Thomases had proved beyond a reasonable doubt


                                         -4-
that Yancey’s custody of Baby Boy L. would be likely to result in serious

emotional or physical damage to the child. There is no indication in the record

that Yancey appealed this order.

      On May 19, 2010–the day after the Oklahoma trial court entered its order

terminating his parental rights–Yancey filed this action against the Thomases.

(He had filed three previous unsuccessful federal-court suits relating to Baby Boy

L., one of which reached this court on appeal, Yancey v. Bonner, 323 F. App’x

674 (10th Cir. 2009).) The Thomases moved to dismiss the action for lack of

jurisdiction under Fed. R. Civ. P. 12(b)(1), arguing that it was barred by the

Rooker-Feldman doctrine, see Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),

and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The

doctrine says that because appellate jurisdiction to review a state-court judgment

is lodged exclusively in the Supreme Court by 28 U.S.C. § 1257, it is

impermissible for a suit in federal district court to be “brought by state-court

losers complaining of injuries by state-court judgments rendered before the

district court proceedings commenced and inviting district court review and

rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284 (2005). Alternatively, the Thomases contended that if the

state-court proceedings remained pending because the adoption of Baby Boy L.

had not been finalized, the federal court should abstain from exercising

jurisdiction under Younger v. Harris, 401 U.S. 37 (1971), which generally

                                          -5-
forecloses federal-court interference with ongoing state-court proceedings.

Yancey responded that Rooker-Feldman did not apply because 25 U.S.C. § 1914

provides for federal-court review of state-court decisions under the ICWA. And

he asserted that federal abstention was inappropriate because state-court

proceedings were no longer pending – his parental rights had been terminated in a

final state-court order. In their reply the Thomases raised the additional argument

that Yancey’s federal-court action was precluded by res judicata because he was

seeking to relitigate the same issues that had been decided by the Oklahoma state

court.

         The district court did not address the Rooker-Feldman issue. 1 Nor did it


1
       We, too, need not address Rooker-Feldman. Although the doctrine poses a
jurisdictional bar to our consideration of a claim, the bar is based on a statute, not
Article III of the Constitution, so we can avoid the issue if we dismiss a claim on
any other ground. In rejecting the so-called doctrine of “hypothetical
jurisdiction,” which permits a court to assume jurisdiction for the purpose of
dismissing a claim on the merits, the Supreme Court in Steel Company v. Citizens
for a Better Environment, 523 U.S. 83 (1998), repeatedly spoke in terms of
Article III jurisdiction, rather than jurisdiction in general. See id. at 95-101; see
also Restoration Pres. Masonry, Inc. v. Grove Europe Ltd., 325 F.3d 54, 59-60
(1st Cir. 2003) (Steel Co. requires courts to resolve Article III jurisdictional
disputes before addressing merits, but courts may dismiss on the merits and
thereby bypass problematic jurisdictional issues that do not implicate Article III
case-or-controversy requirements); Marquez-Almanzar v. INS, 418 F.3d 210, 216
n.7 (2d Cir. 2005) (same); Jordon v. Att’y Gen., 424 F.3d 320, 325 n.8 (3d Cir.
2005) (same). Therefore, we may avoid the Rooker-Feldman issue because,
as explained below, we can dismiss Yancey’s claim on the merits. See Torromeo
v. Town of Fremont, 438 F.3d 113, 115 (1st Cir. 2006) (bypassing
Rooker-Feldman issue to consider district court’s alternative ruling that action
was barred by res judicata). But cf. Edwards v. City of Jonesboro, 645 F.3d 1014,
                                                                          (continued...)

                                           -6-
resolve whether the state-court proceedings were final, concluding that it would

have to deny relief regardless. It held that if the state-court proceedings remained

pending, it would abstain from exercising jurisdiction under Younger; and if the

state-court proceedings were final, Yancey’s claim was foreclosed by the

res-judicata effect of the state judgment. After concluding that amendment of the

complaint would not cure the defect, the court dismissed Yancey’s action with

prejudice. Yancey filed a timely notice of appeal.

                                   II. Discussion

      Yancey argues on appeal that Younger abstention is inappropriate in this

case because the Oklahoma trial court entered a final order terminating his

parental rights over Baby Boy L. The appellees agree that the termination order

was final under Okla. Stat. tit. 10, § 7505-7.1(C). And so do we. Accordingly,

Younger is inapplicable. As a result, we need resolve only whether the district

court erred in dismissing Yancey’s action as precluded by the state-court

judgment.

                              A. Standards of Review

      We review de novo a district court’s application of res judicata,

see MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005), and its



1
 (...continued)
1017-18 (8th Cir. 2011) (noting conflicting decisions on whether Rooker-Feldman
must be addressed before dismissing on merits).

                                         -7-
construction of a federal statute, see Rosette Inc. v. United States, 277 F.3d 1222,

1226 (10th Cir. 2002).

                                    B. The Merits

      Yancey argues that his claim is not barred by res-judicata doctrine because

§ 1914 permits federal-court review of state-court decisions under the ICWA.

Section 1914 states:

      Any Indian child who is the subject of any action for foster care
      placement or termination of parental rights under State law, any
      parent or Indian custodian from whose custody such child was
      removed, and the Indian child’s tribe may petition any court of
      competent jurisdiction to invalidate such action upon a showing that
      such action violated any provision of sections 1911, 1912, and 1913
      of this title.

25 U.S.C. § 1914 (emphasis added). Yancey contends (1) that Baby Boy L. is an

Indian child subject to a state-court action for termination of parental rights;

(2) that Yancey, as a parent from whose custody Baby Boy L. was removed, may

petition a court of competent jurisdiction to invalidate that state-court action by

showing that it violated the ICWA; and (3) that a federal district court is a court

of competent jurisdiction. In support of this construction, Yancey points to the

Supreme Court’s discussion of the legislative history of the ICWA in Mississippi

Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), particularly the

Court’s reliance on the congressional finding that “‘the States, exercising their

recognized jurisdiction over Indian child custody proceedings through

administrative and judicial bodies, have often failed to recognize the essential

                                          -8-
tribal relations of Indian people and the cultural and social standards prevailing in

Indian communities and families.’” Id. at 35-36 (quoting 25 U.S.C. § 1901); see

also id. at 45 (“Congress perceived the States and their courts as partly

responsible for the problem it intended to correct [by passing the ICWA].”).

Yancey maintains that “in light of this historical distrust of the state courts, . . .

[t]he only rational interpretation [of § 1914] is that Congress intended the federal

courts to serve as courts of competent jurisdiction, to review and invalidate, if

necessary, the decisions of the state courts which violate the ICWA.” Aplt. Br.

at 15.

         Yancey also relies on the Ninth Circuit’s decision in Doe v. Mann,

415 F.3d 1038, 1040 (9th Cir. 2005), which held that the Rooker-Feldman

doctrine did not bar a federal district court from exercising jurisdiction to review

a state-court judgment terminating a parent’s rights over an Indian child. In Doe

the mother of an Indian child had filed an action in federal court challenging a

state court’s jurisdiction to terminate her parental rights and approve the adoption

of the child. See id. The Ninth Circuit held that the federal district court had

federal-question jurisdiction over the claims and that § 1914 grants federal district

courts authority to invalidate state-court actions that violate certain provisions of

the ICWA. See id. at 1041. Although acknowledging that federal statutes

permitting federal courts to review state-court judgments are rare, see id. at 1043,

the court examined the language of § 1914 and held that the “action” that a parent

                                           -9-
of an Indian child may petition to invalidate includes a state-court proceeding

terminating parental rights; that Congress authorized “a court of competent

jurisdiction” to invalidate such state-court actions; and that a federal district court

is a “court of competent jurisdiction” under § 1914, id. at 1046-47.

      The Ninth Circuit distinguished this circuit’s decisions in Morrow v.

Winslow, 94 F.3d 1386, 1393-96 (10th Cir. 1996), Kiowa Tribe of Oklahoma v.

Lewis, 777 F.2d 587, 590, 591-92 (10th Cir. 1985), and Comanche Indian Tribe of

Oklahoma v. Hovis, 53 F.3d 298, 302-03, 304 (10th Cir. 1995), because none of

these cases addressed the applicability of Rooker-Feldman. See Doe, 415 F.3d at

1044 n.8. The court declined, however, to determine the relationship between

§ 1914 and either the full-faith-and-credit provisions of 25 U.S.C. § 1738 or the

doctrines of res judicata and collateral estoppel. See id. at 1042 n.5.

      We are not persuaded. We agree with the Thomases that Yancey’s action is

barred by res judicata and that the state-court rulings must be given full faith and

credit under § 1738.

      Under Oklahoma law, “The principle of res judicata as claim preclusion

teaches that a final judgment on the merits of an action precludes the parties from

relitigating not only the adjudicated claim, but also any theories or issues that

were actually decided, or could have been decided, in that action.” Read v. Read,

57 P.3d 561, 567 n.18 (Okla. 2001). Yancey does not dispute that the issues he

raised in this action were actually litigated between the same parties in the

                                          -10-
Oklahoma trial court and decided by that court. He argues only that a state-court

judgment from which an appeal is pending cannot serve as a basis for res judicata.

See Coppedge v. Clinton, 72 F.2d 531, 534-36 (10th Cir. 1934) (Oklahoma

state-court judgment pending appeal was not a bar under res judicata). But

Yancey fails to point to a pending appeal of any of the state-court decisions he

seeks to challenge in this action. He fully exhausted his state-court appellate

remedies with respect to several of the Oklahoma trial court’s orders, and he

elected not to appeal that court’s order terminating his parental rights. The latter

order became final for purposes of res judicata when he failed to perfect an

appeal. See Hubbard v. Kaiser-Francis Oil Co., 256 P.3d 69, 74 (Okla. 2011)

(“The doctrine of res judicata teaches that when the appeal time expires a decision

under this rubric becomes impervious to reconsideration and hence binding and

conclusive upon the parties.” (internal quotation marks omitted)).

      Moreover, our decisions in Kiowa and Comanche foreclose Yancey’s

contention that, despite § 1738, a federal district court is authorized by § 1914 to

review and invalidate a state court’s final decision in Indian child-custody

proceedings as violative of the ICWA. In Kiowa a Tribe filed a federal-court

action attacking a Kansas state-court judgment allowing a non-Indian couple to

adopt an Indian child. See 777 F.2d at 589. Like Baby Boy L., the child in

Kiowa was born out of wedlock to an Indian father and a non-Indian mother. See

id. The mother consented to the baby’s adoption by a non-Indian couple, who

                                         -11-
took custody of the child immediately after his birth. See id. The father’s Tribe

moved to intervene in the adoption proceedings, but the state court held that the

ICWA did not apply and denied the Tribe’s motion. See id. The Tribe appealed

to the Kansas Supreme Court, which affirmed the trial court’s determination that

the ICWA was inapplicable. See id. at 590. Rather than seeking review of the

Kansas Supreme Court’s decision in the United States Supreme Court, the Tribe

filed an action in federal district court, which the court dismissed as barred by

res judicata. See id.

      On appeal, citing § 1738, we said that “[b]y statute, federal courts must

give the same preclusive effect to state court judgments that those judgments

would be given in the courts of the state in which the judgments were rendered.”

Id.; see also § 1738 (“[J]udicial proceedings . . . shall have the same full faith and

credit in every court within the United States and its Territories and Possessions

as they have by law or usage in the courts of such State, Territory or Possession

from which they are taken.”). We held that the doctrine of res judicata precluded

the Tribe from relitigating its claims under the ICWA in a new federal-court

action. See Kiowa, 777 F.2d at 590. The Tribe argued, as Yancey does here, that

§ 1914 creates an exception to § 1738’s rule of full faith and credit. See id. at

591. But we rejected that contention. We emphasized “that an exception to

§ 1738 will not be recognized unless a later statute contains an express or implied

partial repeal.” Id. at 592. Examining the language of § 1914, we concluded:

                                         -12-
      We cannot read § 1914’s reference to “any court of competent
      jurisdiction” as the type of clear and manifest authorization that
      federal courts need before they upset the ordinary principles of
      federal-state comity embodied in 28 U.S.C. § 1738 and the Full Faith
      and Credit Clause. It seems rather to state simply where such actions
      may initially be brought. Regardless of whether we agree with the
      Kansas Supreme Court’s construction of the ICWA, here we must
      honor the judgment it has rendered on the subject.

Id.

      We recognize that in Roman-Nose v. New Mexico Department of Human

Services, 967 F.2d 435, 438 n.2 (10th Cir. 1992), we construed Kiowa as holding

only that “a state-court determination that the [ICWA] is not applicable in a

particular custody proceeding is res judicata in a subsequent proceeding to

invalidate the state action under . . . § 1914.” We indicated that it was an open

question whether § 1738 precluded a plaintiff from litigating in federal court

whether a state-court proceeding applying the ICWA had in fact complied with

the ICWA. See id.

      But that question is no longer open. It was resolved in Comanche, at least

in cases in which the state court had actually determined that the ICWA had been

followed. Comanche involved state-court proceedings to terminate a non-Indian

mother’s parental rights over an Indian child. See 53 F.3d at 299. Over the

mother’s objection, the father’s Tribe moved to transfer the proceedings to Tribal

Court. See id. at 300. Applying the ICWA, the state court determined that the




                                         -13-
Tribal Court did not have exclusive jurisdiction. 2 See id. Rather than appealing

the state court’s decision, the Tribe filed a federal-court action seeking a

declaratory judgment that the Tribal Court had exclusive jurisdiction under the

ICWA. See id. at 300-01. The federal district court entered judgment in favor of

the Tribe. See id. at 301.

      On appeal to this court the appellants contended that the federal court failed

to give full faith and credit to the state court’s prior ruling. See id. We agreed,

holding that the Tribe’s federal-court action was barred by collateral estoppel

under Oklahoma law. See id. at 304. We rejected the Tribe’s contention–again,

the same as Yancey’s–that § 1914 nonetheless granted it the right to challenge in

federal court the state court’s ruling under the ICWA. We stated:

      The question before us is not whether the federal district court is a
      ‘court of competent jurisdiction.’ Rather the question is whether the
      Tribe can institute an action in federal district court after it has lost
      in state court following full consideration, briefing, and argument on
      the identical issue of fact and law relating to jurisdiction to
      terminate parental rights.




2
      Under 25 U.S.C. § 1911(a), “[a]n Indian tribe shall have jurisdiction
exclusive as to any State over any child custody proceeding involving an Indian
child who resides or is domiciled within the reservation of such tribe, except
where such jurisdiction is otherwise vested in the State by existing Federal law.”
The question in Comanche was whether the child was domiciled within the tribe’s
reservation. See 53 F.3d at 300.

                                         -14-
Id. (emphasis added). And we held:

      Under Kiowa, it is clear that § 1914 is not an independent ground to
      relitigate state court decisions. Once the Tribe chose to litigate in
      State Court, review of the State Court’s decision was limited to
      timely appeal to the state appellate courts and was not “appealable”
      in federal district court. Under the circumstances presented in this
      case, we must honor the judgment rendered on the merits by the State
      Court.

Id. at 304-05 (citation omitted).

      Yancey’s argument that our interpretation of § 1914 is not supported by the

language of the statute is unavailing. He cites to the dissenting opinion in

Morrow and the Ninth Circuit’s decision in Doe v. Mann. But we are bound by

our precedent in Kiowa and Comanche, unless and until this court grants en banc

reconsideration or the Supreme Court issues a contrary decision. See In re Smith,

10 F.3d 723, 724 (10th Cir. 1993).

                                    III. Conclusion

      The district court did not err in dismissing Yancey’s federal-court action

because it was barred by res judicata. Therefore, the judgment of the district

court is AFFIRMED. Yancey’s motion to proceed in forma pauperis on appeal is

GRANTED.


                                                      Entered for the Court



                                                      Harris L Hartz
                                                      Circuit Judge

                                         -15-
