3/11/15 - A closer look at the Native adoption case Tununak II vs. the state of Alaska
Tribes say the Governor's position creates obstacles for relatives and tribal members who want to adopt a Native child
The Alaska Federation of Natives and 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 Tununak II vs. the state of Alaska. They say Walker’s position will make it very difficult for tribal members to adopt Native children. But, the state says it’s only arguing for compliance with a U.S. Supreme Court ruling.
The case involves 1) an Alaska Native child called "Baby Dawn" in court documents; 2) her Alaska Native grandmother Elise of the village of Tununak; and 3) Baby Dawn’s non-Native former foster and now adoptive parents the Smiths of Anchorage.
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. But an Alaska Supreme Court ruling in September allowed the Smith’s petition to adopt to override Elise’s stated wish to adopt her grand-daughter. Lloyd Miller, a partner with Sonosky, Chambers, Sachse, Miller and Munson, represents Elise in the case.
"For thirty 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,'" said Miller. "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, and eventually adoption by the individual of that child."
But in Tununak II 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.
Grandmother Elise hadn’t filed a petition to adopt. The Smiths did. Attorney Kenneth Kirk represents the Smiths.
"Our position is the court's made its decision," said Kirk. "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. It's federal law and the Supreme Court has interpreted it. There's not much the Alaska Supreme Court can do about that whether they like it or not."
That’s not so on two counts according to tribal attorneys. First, says 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. It doesn’t say that. The state is making it up."
Rather, he says, the ruling requires would-be adoptive parents to take formal steps to adopt.
"All that the Adoptive Couple decision says is that for the placement preferences to apply, a person has to at least speak up and say they want to adopt," said Miller. "And certainly, the grandmother in this case raised her hand — appeared in court! — and said she wanted to adopt."
Second, 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 Tununak agree on that count, so does the U.S. Department of Justice, which has joined the suit on their side.
"We all agree that it is absolutely unheard of that the Department of Justice would file amicus," said Singh. "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, the Smith’s attorney Kenneth Kirk said Baby Dawn now is almost seven years old, and has been with the Smith’s since she was a year and a half. He said 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," said Kirk. "I mean that’s tough on people, it’s tough on any parent. And to have this case, for just some of the nicest people and the sweetest little girl in the world, hanging over their heads for so long, is just very tough. And I really wish we could end it and find some other test case or 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 to require the filing of petitions to adopt in Native adoption cases, the Baby Dawn case would go back to a lower 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 Tununak II to be reversed. That does not necessarily mean that the child will be removed from its placement," said Singh.
The Governor’s Press Secretary Grace Jang says the Alaska Department of Law is reviewing the case.
Speaking before the tribes made their request, Assistant Attorney General Jacqueline Schafer said the state is looking for ways to simplify the adoption petition process.
"That's part of the work that the state hopes to engage on with Alaska Native communities is, you know, how can we make it easier to file adoption petitions," said Schafer. "The Alaska court system has already reached out and sought the state’s help on a potential adoption form that could make it easier for a lay person to file for adoption."
The village of Tununak requested a rehearing in the case. Briefs to the Alaska Supreme Court on that request are due Monday.