As Alaska moves to strengthen ties with tribes over foster care and adoptions involving tribal children, a new federal court ruling out of Texas threatens that emerging relationship, according to some Alaska tribal and government officials. In fact, Alaska Native children and their families could be severely harmed if the judge’s decision, finding the Indian Child Welfare Act unconstitutional, is allowed to stand, they say.
Earlier this month, U.S. District Court Judge Reed O’Connor sided with Texas, Louisiana and Indiana in Chad Brackeen v. Ryan Zinke, a case involving three Native American children whose non-Native foster parents tried to adopt. The three children had found “loving adoptive parents” but they “have been threatened with removal from, in some cases, the only family they know, to be placed in another state with strangers,” O’Connor wrote in his Oct. 4 ruling.
In court papers, plaintiffs’ attorneys argued that the 40-year-old Indian Child Welfare Act (ICWA) violates the constitution’s equal protection and due process guarantees, and amounts to racial discrimination. The law mandates racial and ethnic preferences, in direct violation of state and federal law, according to the suit. It also harms state agencies charged with protecting child welfare by “usurping their lawful authority of the regulation of child custody proceedings and management of child welfare services.”
While the decision is a victory for state attorneys general in Texas, Louisiana and Indiana, Native rights supporters, state child protection advocates and the Alaska governor and lieutenant governor criticized the ruling.
“There is nothing more important to Alaskans than the well-being of our children. Lt. Gov. Byron Mallott and I continue to stand with Alaska Tribes in supporting the Indian Child Welfare Act,” said Gov. Bill Walker.
Alaska remains committed to fighting for ICWA through the appeals process, he said.
“I was shocked when I heard that decision. I knew the case was pending because Alaska had joined an amicus brief with California and other states. But it was just devastating to know that three states were fighting against us,” said Christy Lawton, director of the Office of Children’s Services, Alaska’s state child protection agency.
The landmark federal law, signed by President Jimmy Carter in 1978, was passed to end the widespread practice of allowing non-Native families to adopt Native American children. Before the law’s enactment, Congress gathered voluminous testimony about what was considered a national crisis involving American Indian children. Lawmakers heard that “25 to 35 percent of all Indian children had been separated from their families and placed in adoptive families, foster care or institutions,” according to a friend of the court brief that Alaska signed. The vast majority were in non-Native homes.
Numerous studies have found that forced acculturation – being forced to be a part of a culture group that is not their own – has led to increased risk of suicide, substance use and depression among American Indians and Alaska Natives, the brief argues.
The forced removal of thousands of Native children from their homes occurred for decades as the government tried to assimilate them into mainstream society. The policy was codified in 1959 with enactment of the federal Indian Adoption Project, premised on the view that “Indian children were better cared for in non-Indian homes.”
In passing ICWA, Congress exercised its authority to remedy the harm caused by these forced removals. The law mandates that states make active efforts to keep Native American children who are placed in foster care with members of their own family or tribe, or if that’s not possible, with another Native family.
If the O’Connor ruling is not overturned on appeal, it could have profound implications for Alaska, say state child protection and tribal officials.
Office of Children’s Services statistics show that as of last month 3,022 children were living in foster care homes in Alaska, and 63 percent were Alaska Native. That’s a disproportionately high rate since Alaska Natives comprise just over 15 percent of Alaska’s total state population. About half of all foster kids end up being reunited with their families of origin. But because Alaska’s lacks enough tribal foster and adoptive homes, many Native foster children end up being raised by non-Native parents, in many cases eroding ties to their culture.
Keeping Native families and tribes intact is “just as critical now as it was in 1978, when ICWA was passed,” said Lawton.
If ICWA is ultimately struck down by the U.S. Supreme Court, Lawton said she expects Alaska will pass state laws and regulations so that the goals of ICWA remain in force here.
Mark Hoover, vice chairman of the Native Village of Eyak, said he’s troubled by O’Connor’s ruling and is trying to determine the motivation behind the federal lawsuit.
“It seems like they are attacking us at a racial level,” Hoover said.
Alaska, California, Montana, New Mexico, Oregon, Utah and Washington argue in the amicus brief that ICWA is not a race-based law, because its application is based on tribal membership. Federally recognized tribes have government-to-government status with the U.S. and tribal membership is a political classification, not a racial or ethnic one, Hoover said.
“Tribal members must voluntarily decide to affiliate themselves as such and can terminate their tribal membership of their own free will, underscoring the political dimensions of tribal membership; one cannot renounce one’s race or ethnicity in this manner,” according to the brief.
Of the country’s 573 federally recognized tribes, some 229 tribes, with membership of about 80,000 people, are located in Alaska.
The O’Connor ruling comes on the eve of the one-year anniversary of the state of Alaska and 18 tribes signing an historic child welfare compact, the first of its kind in the nation. The agreement provides a legal framework for transferring authority from the state to the tribes to provide foster care licensing, child abuse investigations, adoption and guardianship home studies, and supervised visitation.
The goal is to have child welfare decisions over Native children rest with their tribes rather than with OCS, to improve outcomes for these children and their families.
“It’s still in its infancy but it has the potential to transform child welfare,” for the better, said Lawton.
The Alaska Federation of Natives, the state’s largest Native association, joined other tribal groups from the Lower 48 in calling the O-Connor decision “egregious.” They have vowed to continue their fight to uphold ICWA and tribal sovereignty.
Paula Dobbyn is a freelance journalist living in Anchorage. She can be contacted at pauladob@gmail.com.
