Lori Townsend, APRN – Anchorage
The U.S. Supreme court has denied hearing an Alaska tribal adoption case, ending a four-year legal battle between the state and the Kaltag tribal council.
Although the case was first litigated in 2006, the legal opinion that prompted the state’s challenge dates back to 2004, when then Attorney General Greg Renkes issued an opinion stating tribal courts did not have the authority to initiate cases, only to take them if referred from state court. Native American Rights Fund attorney Natalie Landreth argued the case for Kaltag.
Landreth says the Supreme Court reaffirmed what had been decided in an older tribal court appeal stating the Indian Child Welfare Act or ICWA created “concurrent but presumptively tribal jurisdiction.” Landreth says there is a long tradition of tribal court authority over domestic relations of their tribal members.
State senior assistant attorney general Peter Putzier says jurisdiction over members is at the heart of why the state continued challenging the case through several appeals. Putzier says ICWA is not clear about whether tribal courts have jurisdiction over members of other tribes or non native people.
NARF’s Landreth says the end of this case does not diminish the state court concurrent authority with tribal courts but she says tribal councils and courts are the first responders in their communities when children need protection and it’s important for the “presumptively tribal” aspect of ICWA to be followed. She says in the Kaltag case, the council took custody and found a safe home for a child who had been living in abhorrent conditions. She says state and tribal courts can complement each other, but even after the Supreme Court’s refusal to hear the state’s case, there is a system wide problem.
Putzier wouldn’t say if the state would consider rescinding the Renkes opinion but he says the state is developing an ICWA memorandum that would be a working agreement with tribes as a template for cooperation.
A similar case from Tanana is currently in front of the Alaska Supreme Court. It’s not yet known how that decision will impact future state and tribal court proceedings. Putzier says the DC law firm of Latham and Watkins worked on the state’s failed Kaltag appeal to the U.S. Supreme court. The case cost $105,000 to prepare.
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