Native leaders say a Sept. 12th Alaska Supreme Court ruling in a case involving a Yup’ik child will cause higher numbers of Native children to be cut off from their families and culture.
The state says the decision in Tununak v. the State of Alaska will put kids into permanent homes more quickly, and follows a U.S. Supreme Court ruling.
“Baby Dawn,” not her real name, was four months old in 2008 when the state took custody of her. She was put in foster care with a non-Native family in Anchorage. Because Baby Dawn is Yup’ik, the Indian Child Welfare Act, or ICWA, applies. ICWA was enacted to reduce the high number of Native children being placed in non-Native homes. It gives preference to Native families in custody cases. But after the mother’s parental rights were terminated, the foster parents’ petition for adoption of Baby Dawn was approved in 2012. The baby’s grandmother had testified she wanted custody, but didn’t file an adoption petition, which would have required the help of an attorney.
Alaska Assistant Attorney General Jacklyn Schafer says the case revolved around the way the grandmother asked to adopt.
“The question in this adoption appeal then became did the grandmother formally seek to adopt the child. Even though she didn’t file an adoption petition, or intervene in the adoption case, or attend the adoption hearing,” says Schafer. “She did testify in the related child in need of aid case placement hearing that she wanted custody.”
Schafer says the Alaska Supreme Court was bound by a 2013 U.S. Supreme Court ruling against granting custody of Baby Veronica to her Cherokee father. He had mistakenly terminated his parental rights and was seeking to have that overturned. The ruling against him was decided in part because he had not filed a petition to adopt his biological daughter.
The Baby Veronica case was decided by a 5-4 U.S. Supreme Court decision. One of the dissenting justices said the ruling violated ICWA’s text and purpose.
Alaska Federation of Natives co-chair Ana Hoffman, of Bethel, says the Alaska court ruling that removes Baby Dawn from her Native family and community also contradicts ICWA.
“The Indian Child Welfare Act was enacted to prevent that exact thing from happening,” says Hoffman. “It was to ensure the unification of Native families and Native children and to all Native families to provide the nurturing homes for the Native children that are in care.”
Schafer says the requirement to file an adoption petition means everybody interested in adopting a child will lay their cards on the table at a placement hearing rather than an adoption hearing that would come later in the process. That, she says, will put children into permanent homes more quickly.
“When the child has a permanent placement option that wants to adopt, the U.S. Supreme Court seemed to be saying it’s not good enough to have people come forward that far along in the case and say ‘Sure, I want to adopt and see where this goes and I’m interested,’” says Schafer. “That isn’t enough when you have a formal adoption petition on the table and that child could achieve permanency. The U.S. Supreme Court is saying we need to see a formal request to adopt.”
Hoffman says the court has added a costly step to an already complicated process. Schafer says the court directed the court system, tribes, agencies and attorneys to work to make the process of filing an adoption petition easier.
“After the decision,” says Schafer, “the court really emphasized there needs to be more rules to make it easier to file for adoption.”
Hoffman says as it is now, various families can be considered for placement. But she says the addition and complications of getting legal assistance and initiating an adoption case will be insurmountable hurdles for some families. As a result, she says there will be fewer options for the best placement for a child, and more children will be leaving their home communities, with, she says, serious consequences.
“What it would mean for these communities is loss of access, continuation of culture and a loss of the sense of community that should be there,” says Hoffman.
Attorneys for the Native Village of Tununak may ask the court to reconsider its decision.