Alaska Supreme Court’s latest ICWA Decision is a Blow to Alaska Native Family Rights; TCC Hopes Court will Reconsider its Decision

September 29th, 2014

Contact: Nick Gasca, Associate Counsel

On September 12, 2014, the Alaska Supreme Court issued a decision that will effectively bar most Alaska Native families from asserting their rights under the Indian Child Welfare Act (ICWA) and in doing so will increase the number of Native children severed from their families and culture.

In the Native Village of Tununak II v. the State of Alaska (Alaska Supreme Court No. 6954, September 12, 2014, the Alaska Supreme Court ruled that in order to be considered as an adoptive placement option for children in State custody, family members and other Native families must file formal adoption petitions in State Superior Court. The Alaska Supreme Court held that the United States Supreme Court’s decision last year in the Baby Veronica case required this new rule.

This new requirement will be an insurmountable hurdle for most families and will prevent them from asserting their rights under ICWA. It also means that grandparents, rather than encouraging their children’s efforts to reunite with their children, will have to file adoption cases seeking to terminate their own children’s parental rights.

In addition, because the ICWA adoption process is very complicated, families wishing to adopt will need to hire an attorney. However, the vast majority of Alaska Native families (especially those living in villages of the TCC region) lack access to or resources for an attorney. This is concerning given that the Alaska Supreme Court’s own task force has found that there is an access to justice crisis in our state, whereby people in dire need of civil representation cannot obtain an attorney to navigate the court system.

The Alaska Supreme Court’s ruling will have disastrous consequences for Tribes and Native families. It means that no matter how many times a family member asks for placement, and no matter how many names of Native families’ tribes pass along to the Office of Children’s Services through the life of a case, the court will not consider those family members as possible adoptive placements – unless they initiate an entirely separate adoption case.

Justice Daniel Winfree dissented with the majority and agreed with the Tribe that the U.S. Supreme Court did not require this extreme conclusion. Baby Veronica was a fight between a biological father and the adoptive parents of a little girl who had been voluntarily put up for adoption by her mother, and had never lived with her father. Baby Veronica was not about Native children in state foster care, or about placement preferences.

“This decision effectively blocks Alaska Native families from asserting their rights under the Indian Child Welfare Act,” states TCC President Victor Joseph. “TCC is very disappointed in this decision and hopes that the Alaska Supreme Court will grant Tununak’s request for reconsideration.”