Alaska Supreme Court – Turtle Talk

[14]We consider the Washington Supreme Court’s reasoning to be persuasive and note that other states also consider a specific, recent claim of Native heritage to be a “reason to know” the child is an Indian child.⁴⁷ Tribes have many methods to determine membership or eligibility for membership, including lineal descent or blood quantum.⁴⁸Additionally, a tribe may enroll an eligible child after being notified by a state agency that the child is involved in a child custody proceeding.⁴⁹ Because the tribe as sovereign has exclusive power to determine tribal membership or eligibility for tribal membership, notifying the tribe when a child who may be a member is involved in a child custody proceeding is imperative to implementing ICWA’s protections of tribes and tribal members.

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Perhaps more importantly, treating a parent’s uncertain statements as determinative in a context like this could undermine tribal sovereignty, because the tribe decides who is a member.⁵⁶ It is a “basic federal rule” that tribes are the exclusive authority on their membership.⁵⁷ We have previously held that absent a determination by a tribe, a child’s membership or eligibility for membership in a tribe is likely not subject to judicial admission, recognizing the legal authority of tribes to determine membership.⁵⁸ Giving too much weight to the statements of a party without proof or input from the tribe would undermine this fundamental principle.

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We reiterate that a “reason to know” that children are Indian children may arise in many different ways, based upon a multitude of different pieces of information, and determining whether there is a “reason to know” is a fact-intensive analysis requiring consideration of the record of information and context presented in any given case.⁶⁴ Here, Jimmy’s specific claim that he is a recent descendant of a CIRI shareholder, paired with his early assertions related to his children’s tribal affiliation, gave OCS and the court “reason to know” his children are Indian children, triggering OCS’s duty to inquire and to treat the children as Indian children pending a definitive answer as to their status.

Indian Child’s Tribe Determination out of Alaska Supreme Court

October 14, 2022Kate Fort

Here is the decision. sp7628

The facts of this case were a little unusual, where a foster family attempted to have a child in their care made a member of one tribe when he was already a citizen of another. The holdings, however, are useful both for clarity in the regulations for the determination of an Indian child’s tribe, and for keeping state courts out of tribal citizenship decisions.

Court decisions reflect the same rule of deference to the tribe’s exercise of control over its own membership. The U.S. Supreme Court has long recognized tribes’ “inherent power to determine tribal membership.” In John v. Baker we recognized that “the Supreme Court has articulated a core set of [tribes’] sovereign powers that remain intact [unless federal law provides otherwise]; in particular, internal functions involving tribal membership and domestic affairs lie within a tribe’s retained inherent sovereign powers.” We have also “long recognized that sovereign powers exist unless divested,” and “ ‘the principle that Indian tribes are sovereign, self-governing entities’ governs ‘all cases where essential tribal relations or rights of Indians are involved.’ ”

Chignik Lagoon’s argument would require state courts to independently interpret tribal constitutions and other sources of law and substitute their own judgment on questions of tribal membership. This argument is directly contrary to the directive of 25 C.F.R. § 23.108.

The Indian Law Clinic at MSU College of Law provided research and technical assistance to the Village of Wales in this case.

Qualified Expert Witness Opinion from the Alaska Supreme Court

August 29, 2022Kate Fort

sp-7604

The question of qualified expert witness (QEW) has confounded the Alaska Court for years, and unfortunately the regulations and guidelines didn’t provide quite as much clarification as they needed. That said, this decision seems to chart a new course for the Alaska Supreme Court:

As explained further below, the superior court’s interpretation of Oliver N. was mistaken. An expert on tribal cultural practices need not testify about the causal connection between the parent’s conduct and serious damage to the child so long as there is testimony by an additional expert qualified to testify about the causal connection.

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In both cases there is reason to believe cultural assumptions informed the evidence presented to some degree. Had the cultural experts had a chance to review the record — particularly the other expert testimony — they may have been able to respond to and contextualize it. For instance, Dr. Cranor emphasized attachment theory and the economic situation of the families in both cases — areas that may implicate cultural mores or biases. If the cultural experts were aware of this testimony, they could haven addressed attachment theory, economic interdependence, and housing practices in the context of prevailing tribal standards.