Anchorage Daily News

A federal judge has ordered the state to allow Alaska tribal courts to supervise adoptions and other child-welfare matters involving their own tribal members. The court decision -- and possible appeal -- poses a fork-in-the-road challenge to Gov. Sarah Palin regarding her administration's stance toward Alaska's many village-based tribal governments.

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Natalie Landreth

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The Feb. 22 decision by U.S. District Judge Timothy Burgess, along with a similar recent decision in state court, would return the state to a more cooperative tribal policy established under former Gov. Tony Knowles. The Knowles administration approved birth certificates and other state records for several hundred children adopted by order of village tribes.

That policy was reversed under Knowles' successor, Gov. Frank Murkowski. His attorney general, Gregg Renkes, issued an opinion in October 2004 withdrawing state approval for tribal adoptions unless tribal courts apply for special permission, which few have done.

Since then, about 50 tribal adoptions per year have been left in limbo, said Natalie Landreth, a lawyer with the Native American Rights Fund in Anchorage. Burgess ruled in a case involving the Yukon River village of Kaltag.

Palin has defended the Murkowski position so far in court. But her office had no response in recent days to questions about an appeal. The governor has yet to make a clear public statement about her position on the authority of tribes in Alaska. In the past, state officials have often been reluctant to cede sovereignty to tribes, but as a practical matter tribes may provide the only effective governance in rural parts of the state.

GAMING AND CHILDREN

Along with tribal gaming, tribal authority over Native children is one of the few unresolved legal questions surrounding the powers of Alaska tribes.

A 1998 U.S. Supreme Court decision in a case involving Venetie said tribes here don't have most of the powers of tribes in the Lower 48 because they have no jurisdiction over reservations, or "Indian Country."

Since the Venetie case, however, tribes here have grown into powerful vessels of federal funding, especially in more urban parts of Alaska. They have also taken a larger role in many of Alaska's remote villages.

Several blue-ribbon panels have urged greater cooperation between the state and tribal governments, including tribal courts, partly as a practical way of delivering services to distant rural areas. Burgess himself served on one such panel, the Rural Justice Commission, when he was the top federal prosecutor in Anchorage. He was appointed to the federal bench by President Bush in 2005.

Burgess cited such practical concerns in his Feb. 22 decision, noting the Kaltag lawyer's argument that one-quarter of rural Alaskans do not have convenient access to state courts and that the state-sought restrictions would prevent tribes "from assisting children when they are most at risk."

The state asked Burgess last week to reconsider his decision and has not yet filed an appeal, said Jan Rutherdale, the assistant attorney general who argued the case for the state.

The Kaltag case involved a 1-year-old girl taken from her mother, a tribal member, in 2000 because the tribal council was concerned about the girl's well-being. The tribe approved adoption by the girl's foster parents in 2005, but the state refused to grant a birth certificate reflecting the girl's new name.

The state sent Kaltag a packet of information describing steps the tribe could take to win state recognition. Instead, the tribe sued.

A similar decision backing tribal authority was recently issued, but not finalized, by state Superior Court Judge Sen Tan in a case involving Tanana, lawyers for both sides said.

KNOWLES-ERA DECISIONS

During the Knowles era, two high-court decisions promoted greater state-tribal cooperation on child-welfare issues. One came in federal appeals court, the other in the Alaska Supreme Court. Even under Knowles' olive-branch policy, the state retained authority in some cases, such as when one parent objected to a tribe's role.

Renkes reversed that short-lived era with his 2004 attorney general opinion. He interpreted the federal Indian Child Welfare Act as requiring tribes to apply for "reassumption" of powers over adoption before winning state recognition.

That process allows the state to be assured that a tribal court is well-organized and able to work with the state, said Rutherdale.

Tribes have resisted going that route in part because it is a time-consuming process, said Native rights attorney Landreth. But a bigger reason is that it challenges an underlying principle of Indian law, she said. The question is whether jurisdiction must be "bestowed" on tribes or exists naturally unless taken away by Congress, she said.

Under the standoff resulting from the Murkowski policy, children adopted by tribal orders could not get Social Security numbers, new birth certificates or identification papers for travel, Landreth said.

"It was unfortunate, because the people who ended up paying for it were the little kids who needed good homes," she said.

Find Tom Kizzia online at adn.com/contact/tkizzia or call him at 1-907-235-4244.an>