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Children in the Crosshairs: Alaska Native Grandmother Fights ICWA Ruling

Editor’s note: Jackie Shafer, Assistant Attorney General for Alaska, has contacted ICTMN with rebuttals to several points in the story and “errors and omissions” in the account. We will present these responses as part of our follow-up to this story, which can be viewed here. We have made edits to this piece based on facts presented by Shafer, which deal with the location of Baby Dawn’s birth mother at Dawn’s birth and the nature of her subsequent rehab, and the legal opinion behind the decision to reject the state’s appeal in the case known as Tununak I.

Elise wanted her granddaughter, but after nearly six years in court fighting to assert her rights under federal law, time was not on her side. The Inupiaq elder, who has eight children and 26 grandchildren, had steadfastly refused to give up on a child whom she felt needed—and deserved—to be raised by her own family in Tununak, a Yup’ik village on the westernmost edge of the American continent.

Shy, unassuming and barely five feet tall, Elise could not understand why she had been passed over as the preferred placement for her granddaughter after the girl had been taken into state custody nearly six years earlier, at the age of four months. At that time the child’s mother—who had suffered brain damage during a domestic dispute at the hands of her non-Native boyfriend—was living in Anchorage and had been ordered to attend rehab for drug addiction and depression. The Office of Children’s Services (OCS) argued that taking the infant away from her village and placing her in foster care so she could live near her mother would be the best way to make sure mother and child would quickly be reunified. But that never came to pass.

Last month the Alaska Supreme Court agreed with OCS and ruled against the Tununak Village and Elise, stretching the standard applied in Adoptive Couple v. Baby Girl—commonly known as the Baby Veronica case—to fit this situation. The decision has outraged the Native community, tribal lawyers and Indian Child Welfare advocates across the country, who insist that last year’s “Baby Veronica” decision should not have determined the outcome in this case.

In an exclusive interview with Indian Country Today Media Network at the Cook Inlet Tribal Council Center in Anchorage last week, Elise said she now believes that no matter what she did or how hard she tried, OCS never intended to reunify the child (known only as “Dawn” in court documents) with her mother, and had no interest in placing Dawn with her grandmother. The Alaska State Attorney General’s office, the OCS, and foster parents Kim and Harry Smith did not respond to multiple requests to comment on this story by press time.

“They wrote me off. But I wanted her. She is my blood. She is my granddaughter,” said Elise, halting for a few minutes to compose herself, dabbing tears from her eyes. “I told them from the beginning that I wanted to raise her if my daughter couldn’t. I tried everything I could, but they chose the foster parents over me. But I wanted her from the beginning. This is not fair.”

Elise’s case followed a familiar pattern in the application of the Indian Child Welfare Act by state agencies and courts that have argued over the intent and interpretation of ICWA since the United States Supreme Court ruled against the Native biological father in Adoptive Couple last year.

After Elise’s daughter went into outpatient rehab for drug addiction, Dawn was placed in foster care with Kim and Harry Smith, a non-Indian couple in Anchorage. Because of the geographic issues involved here (Anchorage is more than 500 miles away), the Tununak Village initially agreed that there was “good cause” to deviate from the placement preferences outlined in ICWA. And in the beginning, Dawn’s mother had positive results with her rehab and was completing the checklist of requirements for reunification with her daughter. At some point, however, she relapsed and tested positive for drugs.

At that time Elise made it clear to the authorities that she was willing and able to take care of her granddaughter.

According to Elise and officials from Tununak, however, there was an active effort by the state to remove Dawn from her mother, relatives and tribe, and finalize her adoption by the Smiths, who had indicated their desire to retain custody. Social workers who declined to be named because the case involves a minor child say the couple was told early on in the case by OCS that they would probably be able to “keep” Dawn if they were interested in adopting, although they were fully aware that foster care is only meant as a temporary placement until the child can be reunited with her relatives and tribe. The only thing that stood in the way, say insiders, was the termination of the parental rights, which had already been set into motion.

At that juncture the tribe began to bristle, because Dawn’s permanent removal was not what they had intended, and they wanted her back.

But Elise and the tribe faced built-in obstacles unique to Alaska Native villages. Located more than 500 miles west of Anchorage on Nelson Island in the Alaska Yukon Delta National Wildlife Refuge, Tununak is a Yup’ik Alaska Native village reachable only by plane. About 30 percent of the families there live below the poverty line, though having lived there for thousands of years, the tribal communities there know how to rely on sustainable fishing and harvesting year round to survive in the harsh, northern boreal subzone.

The tribe teetered at the edge of extinction during the Spanish Flu epidemic of 1918, when 90 percent of them—72 tribal members—were wiped out within five days. Today the tribe has fewer than 400 members, 45 percent of whom are under age 18—so preserving their culture and their members has become priority number one for the tiny village.

Elise and the village were on a collision course with the Office of Children’s Services and the State of Alaska, which was singled out among the 50 states for its poor relationship with and treatment of the tribes in the Indian Law and Order Commission’s report, “A Roadmap for Making Native America Safer,” in November of last year.

Elise’s case, say Indian child welfare experts, illustrates precisely the vast chasm in which misunderstandings and miscommunications between Natives and a predominantly non-Native legal system that continue to create tension and mistrust over what constitutes “best interests” for Indian children. In many instances, Native parents and grandparents in Alaska are at a distinct disadvantage because of their geographic, political, financial and cultural isolation from the power centers in Anchorage, Fairbanks and Juneau.

The Maze With No End

It was Sydney Tarzwell’s first day on the job. As a newly hired lawyer for the Alaska Legal Services Corporation (ALSC) in Anchorage, she had moved from New York City, where she had represented homeless LGBTQQ teens at the Peter Cicchino Youth Project in the Urban Justice Center. The first case that landed on her desk at ALSC was Native Village of Tununak v. The State of Alaska and the Office of Children’s Services—the day before the placement hearing for Dawn. For Tarzwell, who was no stranger to civil rights litigation, it was an eye-opener.

“It should have been a no-brainer at the placement hearing,” said Tarzwell, who graduated from Princeton University, followed by Columbia University Law School. “She is a golden placement preference. She has no criminal background, no CPS history. She is the perfect Native placement.”

Working with her colleague, James Davis Jr., Tarzwell was astounded at the conclusions reached by OCS and their lawyers.

“Culturally, Elise is very shy and reserved and seems non-verbal to the opposing counsel, which they interpreted as ‘not caring’ about her granddaughter, which couldn’t be further from the truth,” says Tarzwell, who represents the tribe in the case. “She was well out of her comfort zone in terms of being aggressive, so their conclusions are based on very western notions which are the opposite of how she was culturally raised to behave.”

In fact, “conflict avoidance” is one of the prime tenets of Alaska Native culture. Fighting and arguing, particularly over children, says Elise, is discouraged. But to OCS workers and the court, she appeared “inconsistent” and “uncaring.”

But on the stand in the initial hearings, Elise, in her own way, stood her ground. When asked by the lawyers, for example, why she did not contact her granddaughter by phone or by letter, her response came from a place of practicality and common sense of an experienced grandmother who is no stranger to children.

“I told them, ‘What would I say over the phone to a six-month-old?’ ” she told ICTMN last week. “She wouldn’t even know who I am or what’s going on. Why would I write a long letter to a six-month-old? She can’t read. She’s too young for me to do these things. But they held it against me.”

“From the beginning, this case is about two very different worldviews,” says one Anchorage lawyer. “By nature, the Native people of Alaska are very reserved. It’s not culturally appropriate to interrupt or fight or be aggressive in a system that many of them don’t have the tools or understanding to fight. Many of them are very remote, so they participate by phone, but I can’t tell you how many times that when they participate by phone, the judge actually forgets they’re there and listening, but everyone’s talking, and they don’t want to be rude and speak over the others. So it’s interpreted as ‘not caring.’ It’s shameful how they’re treated.”

Elise says in spite of the difference in attitudes and opinions between the tribe and the state as to what constituted the “best interests” for Dawn, she did the very best she could to comply with everything they asked her to do. In the end, however, she says it was never enough. Every time she tackled one obstacle, she says another would inevitably pop up, which made it apparent to her and the tribe that the state agencies were stalling in the hope that either she would give up, or that the child by then would have been kept in foster care long enough that OCS could argue she had “bonded” with her foster parents.

A Never-Ending Game of Simon Says

Early in the case, Elise says, OCS workers came to her village to inspect her home, but she says it was a short visit during which they seemed to be in a hurry to leave. In their report they declared Elise’s home “too small,” “too crowded,” with no room set aside for the child. Elise acknowledges that her home is small, as are most of the homes in the village, but argues that that should not be a determining factor in this case.

Nonetheless, with the help of the Association of Village Council Presidents (AVCP), she complied with OCS demands and had her home cleared of some fishing equipment and made a room ready for her granddaughter.

On subsequent visits, Elise says the OCS workers would find other “requirements” to nitpick over. She insists she did the best she could to address every item on their list.

Next came the claim that Elise, who had raised eight children of her own and has cared—at one point or another—for each of her 26 grandchildren, was “too old” to raise Dawn. In her mid-sixties by that point, Elise was deeply offended. Nowhere in ICWA, say Indian Child Welfare advocates, is the age of a grandparent mentioned, nor does it represent “good cause” to deviate from placement preferences.

“When family members come forward with the desire to care for their children, they should not be thwarted. Research and best practice in child welfare tell us that it is always in the best interest of the child to be placed with family when a safe and suitable placement is available,” the National Indian Child Welfare Association told ICTMN. “Forcing grandmas or other extended family members to meet daunting and expanded legal requirements to simply care for their grandchildren as they have always done is unfathomable and unconscionable.”

Subsequently, OCS also ruled that Elise’s home was an incompatible placement because her son, who was living with her at the time, had an alcohol-related arrest on his record. Elise complied with their demands and found him another place to live. Still, it was not enough.

The pièce de résistance, however, was OCS’s complaint that Elise had failed to secure a “foster care license”—even though she is not required under state or federal law to obtain one because she is a grandmother of the child in question. But she complied anyway and applied for the license.

“I wasn’t even asking for the subsidy that comes with fostering a child,” she says. “I didn’t want the money. I wanted my granddaughter. I applied and did everything I was supposed to, but [the state] ignored it and never responded and did not even return my phone calls. They just let it drop.”

“They could have given her what’s called a ‘licensing variance’,” says Tarzwell. “But they did not even offer that to her. They just blew it off. But a foster care license isn’t legally necessary for her because she is the grandmother.”

By that point, Elise felt certain OCS and the Smiths were trying to buy time so that the case would sway in their favor.

A Village on the Edge of the World

Richard Lincoln III is Tununak’s ICWA worker. Tall and commanding, he is Yup’ik and has been working nonstop with the tribe, ALSC and other organizations to advocate on behalf of Elise and her granddaughter. Elise’s case landed on his desk on his first day on the job working in Indian Child Welfare for the village.

“I’ll never forget it. It was February 28, 2012,” says Lincoln. “The case file was put in front of me the first day on the job, and I didn’t know what to expect. But I can tell you it was a huge slap in the face. At that time, I didn’t have any ICWA experience, but I had been in foster care, so I knew what it was like from that standpoint.”

He pauses for a moment. The 27-year-old father of three kids knows exactly what it’s like to be in foster care with strangers, feeling depressed and out of place.

“It was hard for me to work on this case, because it’s so familiar,” he says, clearing his throat. “It was very emotional because this grandmother made a lot of efforts and tried really hard to take responsibility for this child. But she had a lot of trouble getting back to Anchorage for hearings because we are so isolated, and it’s expensive to fly back and forth. But they used that to say she didn’t care. I can tell you she does care. We all care. We all tried. But [the court] doesn’t care about that. They just want to get this case over and move on.”

Lincoln spent the next year studying hard on the Indian Child Welfare Act and its various requirements. On his own time, outside the office, he read books, magazines, articles and law books, and attended numerous ICWA conferences. He and Elise stood side-by-side in nearly every aspect of this case and its numerous hearings, meetings and conferences.

By the time of the placement hearing in November 2011, however, Dawn’s fate had already been determined. It wasn’t until Elise attended the placement hearing that she learned for the first time that the foster couple had already filed adoption papers. The adoption process was moving forward with no prior notification to the child’s grandmother or her tribe.

Further, as a grandparent, Elise was not entitled to court-appointed counsel under section 1912 of ICWA because she was not the “Indian custodian” of the child. The Village of Tununak, not Elise, is the party in the case. A small village and a Native grandmother with few resources had been legally outgunned and outmaneuvered by a system that had been stacked against them from the beginning, say legal experts in Anchorage.

At the time, Elise’s husband, Dawn’s Yup’ik grandfather, was dying of lung cancer. Elise was also flying to Fairbanks to help one of her other kids with her children. Between OCS, caring for her dying husband and trying to help care for her grandkids, she says she was stretched to her limits emotionally and financially—but that she never once considered giving up on her granddaughter.

“I can’t afford the legal fees to fight this,” she says, dabbing her eyes again with a tissue that has by now become a soggy rag. “They know that. If my husband had been well and healthy, if I had the money, I would have been in Anchorage. But it’s three plane flights from here to Anchorage, and it’s too expensive. And there is no funding for travel for grandparents to fight for their grandkids. I was stuck.”

“It creates an undue burden upon them and could easily prove too expensive and too complex for many families to pursue,” says NICWA. “Nonetheless, until the issue of placement preferences is resolved definitively, this is the landscape we now find ourselves in.”

In 2012 Dawn, against the wishes of her grandmother and her tribe, was formally adopted by the foster couple. At one point during the proceedings, Elise says the foster mother, Kim Smith, approached her in court and said, “Why are you doing this?”

Elise did not mince words: “Because she is my granddaughter. She is my blood.”

The Tale of Two Very Different Appeals

When the tribe and Elise initially appealed the case, known as Tununak I in legal circles, the Alaska Supreme Court ruled in June 2013 that under federal law there must be a “clear and convincing” standard of evidence, rather than the less stringent “preponderance of evidence” to deviate from the placement preferences enumerated in section 1915 of ICWA.

But four days after that ruling came down, the United States Supreme Court decision in Adoptive Couple v. Baby Girl came rolling down the hill. It landed with a thundering crash in state agencies and courts who tend to favor “bonding time” and “best interests” as virtually insurmountable obstacles to an Indian parent or grandparent seeking custody of a child in foster care.

Using language from the new Supreme Court ruling, the State of Alaska appealed the Tununak I case, this time with very different results. Last month, the Alaska Supreme Court sided with the Office of Children’s Services and the adoptive couple, citing last year’s Supreme Court decision as the reason for their reversal.

But legal experts across Alaska and the United States have made it clear that the narrow language of Adoptive Couple should not have controlled the outcome in this case.

“When Adoptive Couple v. Baby Girl was handed down, we knew decisions like the one from the Alaska Supreme Court were a possibility,” NICWA told ICTMN. “We have always emphasized that, just as [Supreme Court] Justice Breyer wrote in his opinion, Adoptive Couple v. Baby Girl should be interpreted narrowly. Anytime a court disregards this and expands the decision in any way is, of course, deeply troubling.”

The Alaska Supreme Court used the “bright-line” test promulgated in the Baby Veronica case as the controlling ideology, ruling that in order to qualify as an ICWA placement, formal adoption papers must be filed by Indian parents, grandparents or any other person in the tribe seeking placement preference. It is a new, onerous standard that pits the tribes against social service agencies and foster parents—which is neither the intent, nor the purpose, of foster care. It was not the intent of Baby Veronica, the justices wrote, to “impose a new monolithic federal standard” to state custody cases. And yet ICWA is, by any measure, a federal standard that preempts state laws—even in Alaska.

“It was the worst news our tribe ever received,” said James James, the tribal administrator in the Tununak Village, in a simple statement responding to the ruling by Alaska’s highest court.

“I am her grandmother,” says Elise, with quiet determination in her voice. “I want my granddaughter to come home. But I would ask any of the parents and grandparents out there to fight for their rights and fight for their kids and grandkids. I know [Indian people] were raised not to speak out, but we need to keep from making the same mistakes. We have so few people left, we have to fight to stay together.”

Next: Part II, The Emerging Battle Between the Alaska Native Tribes and the State