New federal rule could prevent litigation over Native children in state custody

Under new federal guidance, it will be easier for potential Alaska Native and Native American parents to adopt Native children in state custody.

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The 360-page rule issued by the Bureau of Indian Affairs Wednesday aims to make interpretation of the Indian Child Welfare Act more consistent, regardless of the state, judge or social worker involved.

With the new BIA regulations, state courts across the country now must establish at the beginning whether the placement of a child is subject to the Indian Child Welfare Act, or ICWA. The new regulations also clarify the law’s placement preference and how states and tribes determine jurisdiction.

“This is going to be entirely helpful for us,” says Christy Lawton, director of Alaska’s Office of Children’s Services. “I think that these rules are providing a lot more clarity to areas of practice that have been somewhat gray and open for interpretation. I think It’s going to reduce, potentially, future litigation.”

The rules likely would have prevented litigation in the Tununak case by requiring ICWA eligibility to have been determined at the outset.

In 2015, the Alaska Supreme Court declined to reconsider a case in which a Native child dubbed “Baby Dawn” was permanently placed into a non-Native home. The child’s grandmother told the state that she wanted to adopt her. But the state argued that since the grandmother did not did not formally file paperwork, there was no ICWA placement preference to apply.

Matt Newman is an attorney with the Native American Rights Fund, which represented the grandmother in the case. Newman says there’s a pattern of Native children being moved to Anchorage or other urban centers. The thinking is that there are more services there to help a child and parent, improving chances of reunification.

But when that isn’t possible, Newman says the court often decides that the foster care family bond should not be broken. Those children do not return to their home villages.

“We saw these situations where time and time again children were being placed in Anchorage or Mat-Su or on the Railbelt road system under the premise that they would be returned or reunified with their communities and their families, only to have the opposite eventually happen,” Newman said. “Once you’re in Anchorage or you’re in the urban centers, you stay there.”

That scenario happens far less frequently, Newman says, since Valerie Nurr’araaluk Davidson, a Yup’ik woman with a background in health care and law, became commissioner of the Department of Health and Social Services. Her department oversees the Office of Children’s Services.

“I think our biggest opportunity is to leverage relationships with tribes and tribal organizations to really improve outcomes for Alaska Native and American Indian children in our communities,” Davidson said.

“When you can provide that care as close to home as possible, we know that we’re going to have better outcomes for children. Tribes are really in the best position to be able to provide that local care.”

In March 2015, under Davidson’s guidance, the state issued emergency regulations that essentially formalized any contact regarding the immediate placement of a child. That meant if a grandmother called the Office of Children’s Services and told them that she wanted to take care of her grandchild that phone call would be documented as a formal request to initiate adoption or foster care placement.

Legislators codified those emergency regulations last month in House Bill 200. Gov. Bill Walker made it a priority for the legislature. The Alaska Federation of Natives strongly advocated for the bill.

Nicole Borromeo is an executive vice president and general counsel at AFN.

“We’re encouraged by the Department of the Interior releasing these BIA guidelines and regulations, and we are looking forward to the state courts complying with the regulations because they’re no longer guidance, they are in fact federal regulations and they are binding,” Borromeo said.

In 1978, Congress adopted the Indian Child Welfare Act to remedy the high rate of removal of Native children from their homes.

According to a 1976 study by the Association on American Indian Affairs, before ICWA, it’s estimated that between 25 and 35 percent of indigenous children in the United States were being removed from their homes. In most cases, those children were placed in homes away from their culture and extended family.

While ICWA is intended to keep Native children in Native homes, the law has been criticized by both its supporters and detractors. Opponents, many of which are Christian adoption groups, say that non-Native families should have the same right to adopt Native children, and that preventing them from doing so is to the detriment of those in state custody. Supporters of ICWA have long spoken against how much power a judge has in interpreting the law, a problem which the new regulations aim to resolve.

The new federal regulations clarify what has been for decades a murky and often divisive law. Newman, the Native American Rights Fund attorney, noted that coincidentally the regulations were announced within two days of the anniversary of the state court declining to reconsider the Tununak case.