The Indian Child Welfare Act and Inupiat Customs: a Case Study of Conflicting Values, With Suggestions for Change

• Citation: Vol. 21
• Publication year: 2004

§ 21 Alaska L. Rev. 43. THE INDIAN CHILD WELFARE ACT AND InUPIAT CUSTOMS: A CASE STUDY OF CONFLICTING VALUES, WITH SUGGESTIONS FOR CHANGE

Alaska Law Review
Volume 21
Cited: 21 Alaska L. Rev. 43

THE INDIAN CHILD WELFARE ACT AND InUPIAT CUSTOMS: A CASE STUDY OF CONFLICTING VALUES, WITH SUGGESTIONS FOR CHANGE

ANDREA V. W. WAN ^[1000]

I. INTRODUCTION: NATIVE CULTURE AND SOVEREIGNTY UNDER THE INDIAN CHILD WELFARE ACT

II. A BRIEF OVERVIEW OF THE ICWA'S PROVISIONS

A. The ICWA Jurisdictional Issues and Public Law 280

B. Enhanced Parental and Tribal Rights under the ICWA

C. ICWA's Ability to Address the Needs of Indian Families and Tribes

III. InUPIAT ADOPTION: LAW WAYS PAST AND PRESENT

A. Values and Customs Concerning Adoption

B. Inupiaq Adoption Practices

IV. CONFLICTS BETWEEN ICWA AND InUPIAQ LAW WAYS

A. The Need for State Recognition of Tribal Action

B. Obstacles to Reassumption of Jurisdiction and Intervention

V. A PROPOSAL FOR CHANGE: ASSISTANCE IN REASSUMPTION OF JURISDICTION AND IN WORKING WITHIN THE STATE COURT MODEL FOR THE ICWA PROCEEDINGS

A. Reassumption of Jurisdiction under ICWA Sections 1918 and 1919

B. Effective Use of Reassumed Jurisdiction Education of Tribes in Exerting Tribal Rights in State Courts

D. Assistance to State Courts Applying Tribal Customs

VI. CONCLUSION

FOOTNOTES

This Article analyzes the Indian Child Welfare Act ("ICWA") and its capacity to fulfill its primary goal -- the return of partial control over child welfare proceedings to Indian and Alaska Native tribes. Drawing both from legal sources and Alaska Native anthropological sources, the Article examines the misalignment of Federal and Alaska state law to Alaska Native cultural "law ways." The Article then comments on the unique issues that arise from the intersection of the conflicting nature of these two systems. The Article concludes by proposing suggestions for change and inviting others to investigate the problems identified.

I. INTRODUCTION: NATIVE CULTURE AND SOVEREIGNTY UNDER THE INDIAN CHILD WELFARE ACT

The Indian Child Welfare Act ("ICWA") ^[1] was enacted in 1978, primarily to return partial control over child welfare proceedings to Indian and Alaska Native tribes. ^[2] It was also intended [*pg 44] to ensure that Indian and Alaska Native children were not removed from the communities and cultures in which they were born. To achieve these goals, Congress (1) increased procedural and substantive safeguards that gave deference to the sovereignty and cultural values of Indians and Alaska Natives in adoption and foster care proceedings ^[3] and (2) provided a means for the return of jurisdiction to Indian tribes.

While these goals are crucial to maintaining Indian culture and sovereignty, there has been little progress towards achieving them. There are two main reasons for this: (1) there has been inadequate support for development of tribal courts and the education of their staff; and (2) despite its well-intentioned efforts, the ICWA imposes ideas and procedures that do not comport with the underlying principles of the cultures they were intended to protect. This Article compares the cultural traditions of the Inupiat people of Alaska with the ICWA's premises and procedures. ^[4]

While this Article focuses largely on the traditions and values of the Inupiat, the nature of the problems associated with the ICWA and its implementation is similar in relation to other Alaska Native tribes. ^[5] This Article focuses on the Inupiat for two reasons: [*pg 45] (1) English language literature regarding the Inupiat is readily available, via studies that have been conducted both in Alaska and in the Canadian Arctic; and (2) this author has a more intimate understanding of the Inupiaq culture than other cultural groups in Alaska. Because of the limited scope of this article, it would be beneficial to compile similar studies for other native groups, such as the Aleut, Athabascan, Central Yupik, Haida, Siberian Yupik, and Tlingit. ^[6] Such information is relevant to the effectiveness of the ICWA and should be made available to the appropriate tribal courts and Alaska state courts presiding over child welfare cases.

The primary focus of this article is the consequences of the current allocation of jurisdiction over child welfare cases between federal, state, and tribal authorities in Alaska. While the issue of jurisdiction inevitably underlies such a discussion, it does not supersede the larger issue. Therefore, this Article does not attempt to detail the jurisdictional distribution as it currently exists in Alaska. ^[7] Rather, it discusses the choice of law -- federal, state, or tribal -- and helps enable Alaska state courts to choose and apply the relevant portions of each body of law effectively. This article also discusses choice of forum -- state court or tribal court -- and the [*pg 46] differences in the law applied to natural and adoptive Alaska Native parents and their tribes.

This article is unusual because it draws on both legal and anthropological literature. This is necessary because, until recently, anthropological observation provided the best, and often the only, written record of the primarily oral nature of Inupiaq culture, attitudes, and practices. It is important to note here that the absence of a written code does not mean the absence of a legal system. Despite an informal record amassed from anthropological literature, there exists a significant body of "law ways" that govern adoption practices in Inupiaq society. Therefore, anthropological literature regarding Inupiaq society is an appropriate source for comparison with the American legal system's view of adoption and the rules imposed by the ICWA.

Section II of this article presents an overview of the relevant legal and anthropological sources. First, it discusses the ICWA's provisions, particularly as interpreted by the Alaska courts. Second, it explains the anthropological data used herein. Section III presents a discussion of Inupiaq law ways. Section IV subsequently draws a comparison between those law ways on the one hand and the ICWA's provisions on the other. Together, these sections serve to illustrate the consequences of Alaska's current jurisdictional allocation over child welfare proceedings, and analyze how the law is applied in those proceedings. These sections also discuss tribal jurisdictional reassumption ^[8] merely as part of the solution to remedy the ICWA's failure to address tribal needs adequately. As such, jurisdictional details are passed over in favor of an analysis of the consequences of, and potential modifications to, jurisdiction which may mitigate some of the more severe consequences, i.e., the problems associated with choice of law issues.

Finally, Section V suggests that, although the ICWA purports to allow tribes to have increased control over their children, in practice tribes often do not have the skills or resources needed to reassume such control successfully. Efforts to facilitate the return of control and assist tribes in exercising this control should be made a priority. This could be effectuated either by means of jurisdictional changes or more effective interventions in state court proceedings. To accomplish the goals of assisting tribes in regaining nominal jurisdiction and exerting that jurisdiction effectively, new [*pg 47] funding for tribal court development should be allocated. Alternatively, when jurisdiction is not reassumed, tribes should be assisted in preparing written materials regarding their tribal customs and preferences. If such information is not made available, the ICWA's mandate to consider and apply those relevant tribal customs and standards is lost, and state courts will continue to make decisions based solely on American value systems. ^[9]

II. A BRIEF OVERVIEW OF THE ICWA'S PROVISIONS

Before discussing the ways in which the ICWA fails to address the needs of Alaska Natives in general, and the Inupiat in particular, it is useful to have a general understanding of the jurisdictional provisions affecting tribes and the enhanced protections they offer parents and custodians of Indian children. ^[10]

A. The ICWA Jurisdictional Issues and Public Law 280

In 1953, Congress enacted legislation known as Public Law 280 (" P.L. 280 "), ^[11] which established state jurisdiction over cases between Indians arising in Indian country within various states. In 1958, Congress amended this list to include Alaska. ^[12] Effectively, this law preempted any Indian law or custom within the named states by requiring Indians to proceed in the American court system under state laws. The ICWA, to a minor degree, altered this mandate by providing a means for affected tribes to regain the power of jurisdiction that would otherwise inhere in such states. ^[13] The process itself is not difficult or complex from a legal point of view; it consists simply of developing a plan for exercising jurisdiction once it is returned, and submitting that plan, along with a petition, to the Secretary of the Interior. ^[14] However, for many tribes, this can be a daunting task, since tribal councils are often unfamiliar with such processes.

[*pg 48]

In Alaska, the problem is exacerbated by the nature of Native communities. Unlike tribes in the continental United States, Alaska Natives do not reside on reservations. ^[15] Several cases, both state and federal...