All the regional Native nonprofits in the state, which represent most of the tribes in Alaska, have issued a joint statement asking Governor Bill Walker to change his position in the court case Tununuk II vs. the state of Alaska. They say Walker’s position will make it very difficult for tribal members to adopt Native children. The state says it’s only arguing for compliance with a U.S. Supreme Court ruling.
The case involves a Native child called Baby Dawn; her Alaska Native grandmother Elise of the village of Tununuk; and Baby Dawn’s non-Native former foster and now adoptive parents the Smiths of Anchorage. An Alaska Supreme Court ruling in December allowed the Smith’s petition to adopt Baby Dawn to override Elise’s stated wish to adopt her granddaughter.
Lloyd Miller, a partner with Sonosky, Chambers, Sachse, Miller and Munson, represents Elise in the case. Under the Indian Child Welfare Act, or ICWA, Alaska Native children must be placed for adoption with their relatives or tribal members unless good cause is shown it’s in the child’s interests to do otherwise. Miller says it used to be relatively easy for Native relatives or tribal members to adopt:
“For 30 years, it has been the practice that all an individual had to do, a grandmother, an aunt, was to raise their hand, and tell the Office of Children’s Services, ‘I would like to take care of my niece, I would like to take care of my grand-daughter, my grandson, “” he said. “And that was enough to trigger all the Indian Child Welfare Act’s requirements, which include home studies, determining whether the home will be safe and a good placement for the child.”
But in Tununuk 2 vs. Alaska, the state successfully argued that a 2013 ruling by the U.S. Supreme Court requires the formal filing of a petition to adopt to trigger ICWA preferences. A petition to adopt requires legal assistance from attorneys, which tribes say creates a costly obstacle for people in remote communities. The grandmother had not filed a petition to adopt. The Smiths did.
Attorney Kenneth Kirk represents the Smiths. “Our position is the court’s made its decision. The decision is consistent with the Adoptive Couple v. Baby Girl case from the U.S. Supreme Court, which, they really have to follow it. There’s not much the Alaska Supreme Court can do about that whether they like it or not.”
That’s not so according to tribal attorney Miller:
“The Adoptive Couple v Baby Girl decision from the United States Supreme Court never said that before these placement preferences apply, a grandmother, or an aunt, has to file a formal adoption petition,” Miller said. “It doesn’t say that. The state is making it up.”
Rather, Miller says, the Adoptive Couple decision from the Supreme Court requires would-be adoptive parents to take formal steps to adopt, which the grandmother did by stating she wanted to adopt in court.
The Alaska Supreme Court does have the authority to reverse its earlier ruling, according to Tanana Chiefs Conference General Counsel Natasha Singh. She says not only do the attorneys on the side of Elise and the Village of Tununuk agree on that count, so does the U.S. Department of Justice, which has joined the suit on their side:
“It is absolutely unheard of that the Department of Justice would file amicus. We met with the Department of Justice two weeks ago and they feel so strongly that the state of Alaska and Alaska Supreme Court got this wrong that they filed amicus.”
Still, Kirk says Baby Dawn now is almost seven-years old and has been with the Smith’s since she was a year and a half. He says the tribes should find another test case:
“As you can imagine, if you had a case hanging over your head where there was some possibility your child would be taken away from you, it kind of wears you down” Kirk said. “I mean that’s tough on people, it’s tough on any parent. I really wish we could end it and find some other way to resolve this.”
Singh says the case, at this point, is more about the issues than the individual adoption of Baby Dawn. She says if the Alaska Supreme Court decides to reverse its decision, the Baby Dawn case would go back to a lower trial court. There, Singh says, the trial court would decide whether there is just cause to remove Baby Dawn from the Smith family:
“All we’re asking is for the policy that the Alaska Supreme Court came out with in Tununuk Two to be reversed. That does not necessarily mean that the child will be removed from its placement.”
The village of Tununuk requested a rehearing in the case. Briefs to the Alaska Supreme Court on that request are due Monday.