Family Group Conferencing: an Alternative Approach to the Placement of Alaska Native Children Under the Indian Child Welfare Act

• Publication year: 2005

§ 22 Alaska L. Rev. 89. FAMILY GROUP CONFERENCING: AN ALTERNATIVE APPROACH TO THE PLACEMENT OF ALASKA NATIVE CHILDREN UNDER THE INDIAN CHILD WELFARE ACT

Alaska Law Review
Volume 22
Cited: 22 Alaska L. Rev. 89

FAMILY GROUP CONFERENCING: AN ALTERNATIVE APPROACH TO THE PLACEMENT OF ALASKA NATIVE CHILDREN UNDER THE INDIAN CHILD WELFARE ACT

LAVERNE F. HILL ^[*]

I. INTRODUCTION

II. THE FAMILY GROUP CONFERENCE

A. Restorative Justice

B. Family Group Conferencing's History and Origin

C. Values and Beliefs

D. The Family Group Conferencing Process

III. ICWA PROVISIONS AND LEGISLATIVE HISTORY SUPPORT FAMILY GROUP CONFERENCING

A. The Indian Child Welfare Act

B. ICWA and the Children in Need of Aid Statute Provisions

C. Multiethnic Placement Act of 1994

D. Legislative History Indicates the Need for Culturally Relevant Programs

IV. PROPOSAL FOR IMPLEMENTING FAMILY GROUP CONFERENCING

V. CONCLUSION

FOOTNOTES

The Indian Child Welfare Act establishes a cultural safeguard for Alaska Native children caught up in the child welfare system by requiring professionals to make "active efforts" toward reunifying the child with family members and their tribe. Complying with this standard has been a challenge because the adversarial system governing the child welfare proceedings does not fully recognize the Alaska Native belief that the family and tribe have a shared responsibility in the upbringing of children. In this Comment, the author discusses how utilizing Family Group Conferencing, a procedure originating in New Zealand that encourages family and community involvement and respects the unique values and customs of indigenous peoples, will assist child welfare professionals in meeting the "active efforts" standard.

I. INTRODUCTION

A child's cultural background is a critical element in determining proper placement of the child after the State removes her from her parental home. ^[1] With ever-increasing numbers of minority children in the [*pg 90] child welfare system, lawyers, child advocates, and social workers must reevaluate current methods that often ignore a child's interest in being placed in a similar cultural environment. The Indian Child Welfare Act ^[2] ("ICWA") was passed in 1978 to provide guidelines for child welfare proceedings concerning Indian and Alaska Native children. Two issues led to the passage of the Act: (1) Indian and Alaska Native children belong to a protected cultural group, and therefore placement preferences should be with the family or tribe; and (2) state governments have historically been unwilling to work with tribes in child welfare proceedings, premised on the understanding that tribal customs and values should prevail in child custody decisions.

This Comment proposes that Family Group Conferencing, a non-adversarial method originating in New Zealand, is a more appropriate method for ensuring that Alaska Native children are properly placed according to the requirements of ICWA. A Family Group Conference allows the immediate family, extended family, and various tribal community members to discuss the issues concerning the welfare of the child and to develop a plan in the child's best interest. The plan is then presented to and implemented by child welfare professionals. Family Group Conferencing is valuable because it mirrors the customs and values of indigenous peoples by incorporating an understanding that both the family and the community share responsibility for a child, a value that is sometimes neglected in the existing adversarial child welfare system. Family Group Conferencing is an applicable method to ICWA proceedings precisely because it allows the Alaska Native family and community to participate in the decision-making process of child welfare proceedings.

Part II of this Comment evaluates the principles, methods, and issues of Family Group Conferencing for Alaska Native families. The Tlingit and Haida tribes of Alaska are specified as examples of Alaska Native tribes that have benefited from the use of non-adversarial approaches, such as Family Group Conferencing, in child welfare proceedings. ^[3] This Comment will demonstrate that the similarities between the Maori, the indigenous people of New Zealand, and Alaska Native tribes suggest Family Group Conferencing would be as effective in Alaska as it has proven to be in New Zealand.

[*pg 91]

Part III of this Comment describes how ICWA provisions interact with various federal and state statutes that apply to child welfare proceedings involving Alaska Native or Indian children and how these provisions affect Family Group Conferencing. Since Family Group Conferencing is a relatively new method in the United States, and because it attempts to solve family issues in the early stages of child welfare proceedings before a judicial order is necessary, there is no specific case law addressing this method. However, an examination of the relevant statutory provisions and legislative history reveals that Family Group Conferencing is the type of method lawmakers envisioned when enacting ICWA to provide culturally relevant resources for Indian and Alaska Native families.

Part IV proposes that Family Group Conferencing is a valuable method for ensuring culturally appropriate placement of Alaska Native children and for promoting the reunification of Alaska Native families. In order for Family Group Conferencing to become a respected alternative method in child placement proceedings, there must be: (1) more funding specifically allocated to the program to ensure the long-term safety and stability of placement decisions, and (2) data and research to track the program's effectiveness and outcomes.

II. THE FAMILY GROUP CONFERENCE

A. Restorative Justice

The use of restorative, rather than adversarial, justice is not a new approach among Alaska Native tribes. Indeed, the idea of gathering extended family members and relying on their wisdom to resolve family matters is a trait shared not only by the Alaska Natives but also by virtually all indigenous peoples. ^[4]

The idea of restorative justice is reflected in the Tlingit and Haida tribes' use of circle peacemaking, a non-adversarial sentencing alternative available for criminal violations. ^[5] In circle peacemaking, community members, including an elder, the criminal offender, and sometimes the victim, meet to devise a healing plan that incorporates tribal values with the underlying theme of transforming the offender and healing the [*pg 92] victim and community. ^[6] The focus of circle peacemaking is neither blame nor justice; it is a more "holistic approach" aimed at helping those who have committed the wrongful acts and their families to prevent the problem from reoccurring. ^[7] Circle peacemaking was well-received by the Tlingit and Haida communities because it reminded participants of the way families traditionally gathered to discuss and solve problems. ^[8] The concept underlying circle peacemaking, similar to the frequently used Tlingit-Haida phrase, "our children," reflects the community's goal of "protecting those who need it; helping those who can be helped; and sometimes banishing those who can't" be helped or protected. ^[9]

The restorative justice or non-adversarial approach to problem-solving differs from the adversarial position because the dispute is not focused on one person, but rather shared among the family and community. ^[10] Restorative justice emphasizes "restitution rather than retribution and on keeping harmonious relations among the members of their community." ^[11] Indian law is intended "to bring honor and respect back to the family, clan and tribe of the offender and to live in harmony with nature." ^[12] In order to live harmoniously, Alaska Natives and Indians do not insist that the offender carry sole responsibility for making the family whole. ^[13] Family Group Conferencing embodies the same theme of [*pg 93] shared responsibility as circle peacemaking and will offer Alaska Native families many opportunities to restore the lost family ties and renew the bonds that will keep children safe and happy in their homes.

B. Family Group Conferencing's History and Origin

Family Group Conferencing is a non-adversarial approach to the placement of needy children in culturally relevant homes. ^[14] Family Group Conferencing originated in the late 1980s in New Zealand in response to a number of challenging placement cases among the Maori, the indigenous people of New Zealand. ^[15] The Maori families were overwhelmed and troubled by the idea of their children being raised by cultural strangers or in state institutions. ^[16] Relying on their traditional methods of dispute resolution, the Maori people contended that the use of extended family and the reduction of state interference with family life would benefit their children. ^[17] The theory behind Family Group Conferencing is that child welfare is a responsibility shared by many entities including government agencies, tribes, communities and families. ^[18] Through the Family Group Conference, the family becomes the focal point of the decision-making process, thereby building and repairing the family's ability to care for and protect the child. ^[19]

Advocates in New Zealand and the United States share concern for the high number of children who are moved through various placements in their respective child welfare systems. ^[20] Like the United States, New Zealand had a high...