In light of court rulings, Children's Services changing policy to work more closely with tribes
April 22nd, 2011 | Alex DeMarban
(Update: On Friday, the acting director of the Office of Children's Services said she's thankful for the court decisions because they will allow OCS to work more closely with tribes.
Increased tribal involvement can lead to earlier intervention and quicker help for a family, benefits that will ultimately reduce the number of children entering foster care, said Christy Lawton, a case worker 13 years ago who moved up the agency ranks.
"We believe that tribal children can be best served by their communities. We think tribes can do just as good a job as we can," she said.
The agency is now revising its policy to follow the latest court ruling that says tribal courts can ajudicate their members' child-custody cases. The OCS effort includes identifying areas within the huge policy manual - more than 500 pages thick - that need changing.
Lawton plans to have new rules in place within the next 30 days calling for increased cooperation and information-sharing between state workers and tribes. The court decision "opened the door" so OCS can recognize tribal-court orders and provide records tribes have requested, she said.)
Tribes in recent months have trounced the state in two big child-custody cases, so the attorney general's office must change its position that tribal courts don't have jurisdiction over their own members' children, said attorney Heather Kendall-Miller.
Part of the winning team on the state and federal cases, Kendall-Miller said publicly on Wednesday that Attorney General John Burns should withdraw a seven-year-old opinion issued by a former attorney general.
His office must also alter the state's policy manual for the Office of Children's Services to encourage state case workers to cooperate with tribal courts, including by sharing confidential information such as reports of harm to a child, she said.
"I would like to ask that that policy manual be changed and be changed within the next month. It needs to reflect that tribes in Alaska do possess inherent authority to adjudicate children's proceedings," said Kendall-Miller, closing keynote speaker at the National Indian Child Welfare Association's 29th annual conference, held in Anchorage earlier this week.
The state once recognized that authority, but changed course in 2004 when then-Attorney General Gregg Renkes said only state courts could initiate children's cases. The opinion was part of a larger state effort to check tribal sovereignty.
Under Renkes' opinion, tribal courts didn't have the right under the state to initiate custody hearings. State case workers were ordered not to recognize tribal court decrees that hadn't originated in state court, said Kendall-Miller, lead attorney for the Native American Rights Fund in Anchorage.
After Renkes issued his opinion limiting tribal powers, the state needed just one month to change the OCS policy manual to match his opinion, she said.
Now, seven weeks have passed since Alaska's highest state court ruled in favor of Tanana and other villages. Still, the policy language hasn't changed.
It's an easy fix. The state simply needs to dust off and re-apply its pre-Renkes language, Kendall-Miller said.
It should tell case workers:
"You contact that child's tribe, you find out whether or not the child has ever been a ward of a tribe. Is there an existing tribal court order? If so, then you transfer everything to the tribal court. You don't pretend like they don't exist. You work with them."
The state has one more hope in its fight against tribal-court powers. It has until June 2 to ask the U.S. Supreme Court to review the Tanana case.
The state's chances are dim, Kendall-Miller said. Last fall the U.S. Supreme Court refused the state's request to hear Kaltag v. Alaska, a federal case involving similar issues.
At any rate, the state's highest court has spoken. The state needs to withdraw Renkes' opinion.
"Our Supreme Court has ruled that that analysis was wrong. That opinion reflects the opinion of the state's highest attorney. That opinion cannot continue to stand once a Supreme Court has entered an opinion saying that opinion is wrong."
When Kendall-Miller made the suggestions, state officials overseeing OCS sat in the audience. Her tone was conciliatory. She said she was offering ways the state could work with tribes.
After the presentation, in response to questions from a reporter, Kendall-Miller said the ideas could become more than suggestions. If the state doesn't change its policy within a reasonable period of time, she'll file a contempt-of-court claim, she said.
Her third suggestion came in response to a statement she heard from state officials speaking publicly at the conference. According to Kendall-Miller, they suggested that state courts should adopt a rule recognizing tribal authority in children's case.
The courts aren't the problem, she said, and tribes shouldn't need to wait years' longer for a court to adopt a rule.
"The courts are totally agreeable to working with tribes, they do it every day," she said after her speech. "It's the attorney general's office that has been refusing to interpret the law substantively in a way that recognizes tribal jurisdiction."
She told tribes in the audience they have a responsibility too.
They need to recognize "there will always be some who are afraid of tribal sovereignty and will be quick to assume that it is rife with abuses."
To be given respect by other courts, tribal courts must overturn that reputation by engaging in best practices. That includes incorporating "fundamental principals of fairness into tribal court proceedings."
Alex DeMarban can be reached at firstname.lastname@example.org