Alaska Supreme Court Uses Baby Veronica Ruling to Thwart ICWA

 The Tununak Alaska Native Village is located on Nelson Island in the Bering Sea. Forty-three percent of the village is comprised of children under the age of 18.

Suzette Brewer

10/9/14

Last month, the Alaska Supreme Court issued its decision in Native Village of Tununak II v the State of Alaska and the result has many Native observers dismayed. The language in the September 12 decision incorporates analysis from last year’s “Baby Veronica” ruling that legal experts, Indian child welfare advocates and tribal leaders say strikes yet another blow at the Indian Child Welfare Act. This new precedent, Indian analysts claim, will make it easier for tribes and tribal members to lose their children into state custody.
The case involves a six-year-old Yup’ik child who was taken at the age of four months into state custody in 2008 and placed into a non-Native foster home in Anchorage. Subsequently, after the child’s mother had her parental rights terminated, the foster couple filed for adoption, which was granted in 2012.
Even though the child’s maternal grandmother had previously testified that she wished to raise her grandchild, and in direct contravention of the placement preferences specifically enumerated in section 1915 of ICWA, the Alaska Supreme Court, using a single sentence from last year’s U.S. Supreme Court ruling in Adoptive Couple v Baby Girl, ruled that the grandmother was ineligible because she had not filed adoption papers that legally signified her intent to adopt.
In its ruling, the Alaska Supreme Court asserted that “The [Supreme] Court’s initial overview of [Adoptive Couple] stated it was clarifying that § 1915(a) preferences are inapplicable if no eligible candidates ‘have sought to adopt the child,’ without using the word ‘formally.’ The Court did not hold that whether an eligible candidate has come forward is a matter of federal law. And it certainly did not hold as a matter of federal law that § 1915(a) can apply only when an eligible person has filed an adoption petition in state court.”
Further, the decision held that “It is not at all self-evident that this is what the Supreme Court meant, and it is even less self-evident that the Supreme Court impliedly created a monolithic federal rule trumping state court adoption procedures. The Court’s clarification certainly leaves room for states to determine under their own adoption procedures when an eligible candidate has come forward such that the preferences should be applied.”

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The Alaska Assistant Attorney General Jacklyn Schafer told local media in Anchorage that the Tununak ruling hinged upon the methods by which the grandmother expressed her intention to adopt with the court.
“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,” Schafer said, “she did testify in the related child in need of aid case placement hearing that she wanted custody.”
“That aspect of the Adoptive Couple [decision] really worried me at the time,” said Barbara Atwood, Mary Anne Richey Professor Emerita of Law and Director, Family and Juvenile Certificate Program at the University of Arizona School of Law. “Alito's opinion seemed to hold that 1915 preferences don't come into play if there is only one adoptive placement before the court. This could mean that a state and a tribe would be in a race to the courthouse. If the state proposes an adoptive placement and there is no ICWA-compliant placement yet identified, 1915 could be ignored.”
The National Indian Child Welfare Association issued a statement on Friday evening decrying the decision, which it contends is in direct defiance of both the letter and intent of the Indian Child Welfare Act.
“NICWA is disappointed by the decision of the Alaska Supreme Court in Native Village of Tununak II v the State of Alaska. Cultural knowledge and recent social science research tell us that children who are raised by family members have better long-term outcomes,” the statement read. “This decision was not only a failure to correctly interpret the law, but also a failure to understand what is in the best interest of this child. In its decision, the Alaska Supreme Court erred in its interpretation of Adoptive Couple v. Baby Girl.”

Atwood concurred on the legal notion that the Alaska Supreme Court has erred in allowing Adoptive Couple to control the outcome of this case.
“Whether [Adoptive Couple] should be applied in the context of an involuntary termination of parental rights is a more difficult issue,” said Atwood. “Breyer, as the necessary fifth vote, seemed to say in his concurrence [with the majority] that the holdings should be confined to the facts of the case. He was talking about the 1912 rulings, however, not the 1915 aspect.”
“Still, there's an argument that the Alaska court was wrong to view the issue as absolutely controlled by Adoptive Couple.”
According to NICWA, last week’s decision has created an even greater barrier for Native people and tribes to retain their children, which goes directly against the original intent when Congress enacted ICWA in 1978.
“This decision is not only counter to the letter and spirit of the Indian Child Welfare Act, but also creates additional burdens for Native family members wishing to adopt,” NICWA’s statement read. “Our court systems should not be thwarting family members stepping forward to provide loving homes. Instead, they should be doing everything in their power to support the best interest of these children and the families that deeply love them.”

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Today, as more cases – both challenging and upholding the Indian Child Welfare Act – continue to fill court dockets across the country, references to “Baby Veronica” and Adoptive Couple v Baby Girl are present in nearly every single pleading before the courts, as well as every single ruling handed down. The recent appellate ruling in CFS v J.E. et al, and the previous overturn of the adoption of an Absentee Shawnee girl from Oklahoma are merely indicative, say experts, of the decision in Adoptive Couple that continues to create confusion and confrontation between the tribes and the states.
As such, Adoptive Couple and its aftermath continues to reverberate throughout Indian Country, with more attention than ever being paid to the 35-year-old statute that had little media attention before the epic battle over ICWA played out before the entire world. Because or perhaps in spite of Veronica, states, tribes and tribal members, particularly in Oklahoma, California and South Dakota, are beginning to push for greater enforcement and tighter restrictions in the foster care and adoption of Native American children under the Indian Child Welfare Act.
In a statement from the Cherokee Nation, assistant attorney general Chrissi Nimmo discussed the impact of Baby Veronica and her hope for the continued application of ICWA for all tribes.
“I think of Veronica and the entire Brown family often. I know that all of Cherokee Nation misses her and hopes for the best for her,” says Chrissi Nimmo, Assistant Attorney General for the Cherokee Nation who worked around the clock for over a year on this case. “If any lasting good comes from the case, it is that Veronica brought attention to ICWA and unethical adoptions. The Cherokee Nation will continue to strive to be a leader among tribes in ensuring ICWA compliance to make sure that native children are raised by their families and their tribes as ICWA intended and as it should be.”

Read more at http://indiancountrytodaymedianetwork.com/2014/10/09/alaska-supreme-court-uses-baby-veronica-ruling-thwart-icwa-157265?page=0%2C1