July 3, 1997

Child welfare law a tug-of-war for state, tribes

By Tom Kizzia
Daily News reporter

The revival of formal tribal courts in Alaska began in 1980, when a few villages took up adoption cases under federal law. It proved an early introduction to the complexity of overlapping court jurisdictions, with neither the state nor the tribal courts willing to yield their authority.

The federal Indian Child Welfare Act of 1978 was intended to combat the widespread separation of Indian children from their parents and tribal communities. Alaska's tribes were recognized for the purposes of the act, giving Native villages here a start in forming their own courts.

But the unusual history of federal Indian policies for Alaska led to different interpretations of how the child welfare law should apply. As a result, the state and tribes are still at odds over the authority of tribal courts to handle adoptions and custody disputes.

Alaska has refused to acknowledge tribal adoptions unless tribes take special steps to apply for authority. A 1988 Alaska Supreme Court decision bound the state to that policy, which meshed with the state's refusal to recognize tribes in other matters.

''You have to recall that 10 or 15 years ago, most villages didn't have courts or a child-protection infrastructure,'' said assistant attorney general Becky Snow.

Tribes, on the other hand, refused to go along with the state's demand that they ''reapply'' to the federal government for child-welfare authority, which they contended they always had. They were backed by the federal 9th U.S. Circuit Court of Appeals, which said Alaska tribes have automatic jurisdiction -- to be shared ''concurrently'' with the state -- in child welfare matters.

The state Department of Health and Social Services has fashioned compromise regulations that recognize ''cultural adoptions'' meeting certain tests. This still falls short of what some tribes seek, which is unqualified state recognition of a tribal court decree.

The clash forced a well-publicized showdown in 1993, when two planeloads of troopers flew to the western village of Toksook Bay to enforce a state court order to pick up a Native child. The village council had said the boy's grandmother should be given custody, and other Delta leaders denounced the troopers for ''gestapolike'' tactics.

Recent legal developments may have shifted authority in the tribes' favor.

In March, a state Superior Court judge ruled that a tribal court had jurisdiction in a Copper Center child custody fight, despite earlier state Supreme Court decisions to the contrary. Judge Eric Smith said the Bureau of Indian Affairs' 1993 recognition of Alaska tribes voided the state Supreme Court's reason for refusing in 1992 to recognize tribal courts in child-welfare matters. The state has appealed the ruling.

State lawyers concede that other changes -- including the growing capabilities of village courts and the Knowles administration's decision in 1993 to drop state opposition to federal recognition of tribes -- may ultimately require a new policy.

''I don't know what the state would argue now,'' said assistant attorney general Snow. ''I believe the state would be interested in resolving the situation in a rational way that would allow us to focus our resources on protecting children rather than fighting jurisdictional battles.''

If the state eventually accepts ''concurrent'' tribal jurisdiction, cooperative agreements would be necessary to make sure state and tribal social service work is coordinated.

''Tribes are willing to share power with states for accessing treatment for kids,'' said tribal courts consultant Kimberly Martus. ''It's not giving Native people very much credit to presume they will immediately opt for exclusive jurisdiction. People care more about their kids than to cut off the resources in the larger society.''

Recognition of Indian country also sets the stage for enlarging the field of tribal court jurisdiction into other areas of domestic relations -- marriage and divorce -- now handled by the state.

Such cases can become thorny, especially when two tribes have a dispute, warned Larry Long, deputy attorney general for the state of South Dakota. For example, where biological parents from two tribes divorce, each tribal court may sever the parental rights of the other parent, leaving children in a tug of war between sovereigns.

''These things are just nightmarish,'' Long said.

On the other hand, the tribal court of Minto faced just such a dispute and managed to bring children to their mother in Minto after troopers refused to get involved, said council chief Greg Alexander.

''We were lucky,'' Alexander said. ''We worked with the chief of the other village, and he kind of helped us out. We were able to work together, and that made it easier.''

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