DOJ may intervene in Alaska Supreme Court case

The U.S. Department of Justice may intervene in an Alaska Supreme Court case concerning a non-Native couple’s adoption of an Alaska Native child. In September, the Native Village of Tununak lost its appeal against the State of Alaska and the adoptive couple.

DOJ is trying to determine, does the U.S. Supreme Court’s decision in the Baby Veronica case apply to the Tununak case? Baby Veronica was about a private adoption. The Tununak case is concerned with a state-sanctioned adoption.

Matt Newman is an attorney for the Native American Rights Fund, which has been involved in the Tununak case as a friend of the court.

“I think what is definitely of note and definitely what was a bit surprising is the Tununak decision is now on the radar of the Department of Justice,” Newman says. “Through this extension they’re certainly not committing to anything. They’re not saying ‘we have a brief to file.’ But they’re at least showing that there’s an interest in the case at levels higher than just the bar here in Alaska.”

The fate of a 6-year-old the court calls “Dawn” is at stake in the case. Dawn was placed into foster care as an infant in Anchorage near her mother in the hope that they could be reunited.

That was a deviation from the Indian Child Welfare Act, which mandates a preference for Native family placement. But the tribe and the child’s grandmother Elise agreed–initially. After a year Dawn was placed with a new non-Native family, the Smiths, who are now trying to finalize their adoption of her.

Three years after Dawn first entered the State of Alaska’s custody, her mother’s parental rights were terminated. After the termination the tribe argued that keeping Dawn in Anchorage was no longer warranted and they stepped up their efforts to have Dawn placed with her grandmother in Tununak. According to the September decision, Elise had requested custody of Dawn since the beginning and had made efforts to bring her home into compliance for placement.

During the last appeal the state court had initially granted the tribe a stay of the adoption. Four days later the U.S. Supreme Court issued its opinion in Adoptive Couple vs. Baby Girl, otherwise known as the Baby Veronica case. In light of this, the state court requested supplemental arguments from the parties.  Because the grandmother did not formally file for adoption, the court reasoned that the Baby Veronica decision meant that there was no ICWA placement preference to apply.

A window to appeal the decision to federal court closed Friday, the same day that the DOJ requested its own extension. The DOJ wrote that the “United States has a strong interest in the interpretation of the Indian Child Welfare Act,” and that the department was not aware of the case until after the September decision.

The DOJ has until November 24 to decide if it will intervene in the case. The Village of Tununak’s tribe is represented by Alaska Legal Services Corp.

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