Monday, March 7, 2011

State high court empowers tribes' child custody decisions

Tanana v. State, No. 3AN-04-12194 CI, No. 6542

Contact: Heather Kendall Miller, Senior Staff Attorney and Counsel for Tanana.

Last Friday the Alaska Supreme Court issued a broad affirmation of inherent tribal authority. In State of Alaska v. Tanana the Court ruled that tribal courts have authority to initiate and adjudicate children’s cases without going through state courts.

The case was brought in 2004 on behalf of the Villages of Tanana, Nulato, Akiak, Kalskag, Lower Kalskag and Kenaitze along with Theresa and Dan Schwietert. The case was brought after Governor Murkowsi’s administration, on the advice of former Attorney General Greg Renkes, abruptly stopped recognizing tribal court decrees in cases that did not originate in state court. Renkes argued that only state courts could initiate children’s cases and if they chose, transfer those cases to tribal courts. He also instructed state employees to stop recognizing or enforcing tribal court decrees. The case was brought to overturn Renkes’ opinion and to force the State, its agencies and officials to formally recognize valid tribal court decrees without regard to any state court involvement.

State services frequently do not reach village Alaska. Tribal courts must therefore handle most cases involving the welfare of village children. State recognition of those tribal court proceedings is therefore critical to assure that proceedings which occur in tribal court are then respected by other state agencies. Otherwise, adoptive parents may not be able to participate in state funded assistance programs, secure substitute birth certificates necessary to travel out of state, to enroll children in school, or to secure medical care.

The Schwieterts faced just such a dilemma. After adopting a special needs child in Tanana tribal court, they had difficulty accessing health care. They were also frustrated in their plans to travel out of state when they were told that they could not acquire a substitute birth certificate for their adoptive child since the child had been adopted in a tribal rather than state court proceeding.

NARF attorney Heather Kendall Miller called on Governor Parnell and Attorney General Burns to rescind the Renkes Opinion and instead take this opportunity to work with tribes and tribal courts to ensure the protection of all children, no matter which court their case is in. She sounded on a positive note: “now that the Court has reaffirmed tribal authority in this area I look forward to working with Attorney General Burns to better coordinate tribal and state services in village Alaska.”

For more information see: http://www.courts.alaska.gov/ops/sp-6542.pdf