Excerpted From: Melissa Gustafson, Indian Child Welfare Act: A Roadblock in a Native Child's Pathway to Permanency, 40 Alaska Law Review 61 (June, 2023) (299 Footnotes) (Full Document)


MelissaGustafsonIn March of 2019, the Office of Children's Services (OCS) in Alaska discovered five children living in deplorable conditions. The home's kitchen had a foul odor from spilled food and liquid that had been left unattended. Dirty clothes and diapers were all over the bedroom and bathroom. There was garbage in the sink and shower, and feces smeared on the walls. The children also reported that there were frequently rats and “large black insects” crawling throughout the home.

The children mirrored the condition of the home. They appeared and smelled as if they had not bathed in several days, an observation supported by the dirt lodged under their finger- and toenails. The children reported spending days without eating, and hair follicle testing revealed that all five children were positive for methamphetamine due to their parents' drug use. Two of the children also tested positive for amphetamine. Each child had visible scars from physical abuse. The mother routinely spanked the children with a wooden broom handle, while the father hit them with metal rods, canes, and wires. To end the nightmare, the OCS removed the children from the home and placed them into foster care.

Unfortunately, these children's stories are not unique. In the United States, there are nearly 424,000 children in foster care on any given day. In 2019 alone, over 250,000 children entered the system. And while foster care may grant children needed relief from unspeakable horrors that occur within the home--horrors that include neglect, parental drug abuse, physical abuse, abandonment, and sexual abuse care is only a temporary fix.

The temporary nature of foster care is exacerbated by frequent instability in placement. Within the first eighteen months of being in the system, 18.9% of children will be removed from their initial foster placement, and 8.5% experience at least three different placements. Of children who were in foster care for two years or more, 64% experienced three or more foster placements. These frequent changes in placement prohibit children in the foster system from achieving permanency. Permanency is a term used in family law to describe “legal membership in a safe, stable, nurturing family with relationships that are intended to last for a lifetime.” Lack of permanency can cause significant developmental deficiencies, such as an increased risk of behavioral, social, psychopathological, and academic problems. Additionally, children are likely to develop a distrust of adult figures, negative self-esteem, and an inability to build secure attachments to subsequent caretakers or foster parents. Comparatively, children in stable home conditions are less likely to develop delinquent behavior and psychopathology, and are more likely to have healthy brain development and favorable academic achievements.

In the United States, permanency is often achieved via reunification of children with their parents or, when reunification is not feasible, adoption upon termination of the unfit parents' rights. While reunification, when appropriate, is a desirable outcome for children and parents alike, this Note focuses solely upon situations, as exemplified above, where lingering safety concerns make reunification impossible. In these situations, the child can only achieve permanency if parental rights are terminated and long-term legal relationships with fit caregivers are created. However, a child's pathway to permanency via termination proceedings is often a long, drawn-out legal process that leaves the child in a seemingly perpetual state of temporary placement. The five children in the previous illustration spent twelve months in the system before the OCS filed a petition to terminate parental rights; then, they spent an additional nine months awaiting the results of the termination hearing. Even after the decision was rendered, the children remained in limbo for another ten months as the case worked its way through the appeals process. For two years and seven months, these five children lacked the permanency necessary to improve their chances of healthy brain development and favorable academic achievements.

While the permanency process is lengthy for children of all races and ethnicities, this burden falls disproportionately on Native children in America. Research shows that Native children nationwide are overrepresented in the foster care system. A 2017 study found that the proportion of Native children in foster care is 2.6 times greater than their proportion in the general population. And this number did not include children receiving services from tribal governments, meaning that the rate is likely even higher. This disproportionality has an even greater impact in Alaska, which is home to 228 federally recognized tribes and is the most predominantly Native state in the nation. Alaska Native children were found to be seven times more likely to be in foster care when compared to their white counterparts. A study ranging from 2006 to 2013 found that around 2,000 Alaskan children were in foster care in any given month. While only twenty percent of children in the state are Alaska Natives, sixty percent of those 2,000 children in foster care were Native.

In 1978, Congress concluded that the disproportionate number of Native children in the foster care system was directly attributable to the nation's systematic mistreatment of the Native population. As a result, Congress enacted the Indian Child Welfare Act of 1978, commonly referred to as “ICWA.” The Act provides extra protections for this vulnerable population by regulating various aspects of the child welfare process foster care placements, voluntary termination of parental rights, jurisdiction for tribal courts, and, most relevant to this Note, involuntary termination of parental rights.

These federal protections have been hotly contested within the courts and scholarly literature, with the most recent attack being Brackeen v. Haaland. In Brackeen, an en banc Fifth Circuit panel struck down several ICWA provisions as unconstitutional, specifically ICWA's active efforts, expert witness, and record keeping requirements, for violating the Tenth Amendment's anti-commandeering doctrine. Additionally, the divided panel affirmed the trial court's finding that ICWA's placement preferences, which give priority to Native foster and adoptive parents, violate equal protection and improperly commandeer state actors. Brackeen echoes the major critique of ICWA--that it does not provide Native children equal protection of the law because of the different standards that are applied in Native child welfare cases, specifically in the context of foster and adoptive placements.

To clarify this constitutional question, the U.S. Supreme Court granted certiorari to determine whether ICWA's placement preferences a) improperly discriminate on the basis of race, b) exceed Congress's power over Indian affairs, and c) impermissibly commandeer state courts and agencies. But by narrowing the scope of the case to the constitutionality of ICWA's placement preferences, the U.S. Supreme Court neglected to address a large harm facing Native children: the additional, time-consuming roadblock that ICWA's expert witness requirement for termination hearings places in a Native child's pathway to permanency.

In the context of involuntary terminations, ICWA requires the testimony of a qualified expert witness to support, beyond a reasonable doubt, the termination of parental rights. However, beyond this baseline requirement, the Act remains largely silent and fails to describe the qualifications necessary for an expert, the number of experts required for termination, or the necessary content of their testimony. Instead, Congress has delegated the task of clarifying and reforming the expert witness requirement to the Bureau of Indian Affairs (BIA). Pursuant to this delegation, the BIA, in 1979 and again in 2015, issued non-binding guidelines for ICWA's qualified expert witness mandate. Specifically, the guidelines emphasized, first, that at least one expert witness must testify and, second, that the “qualified expert” status of the requirement is likely to be met if the witness has intimate knowledge of the culture and practices of Native tribes. While the guidelines remained non-binding upon states, the Bureau intended for the guidelines to act as a manual of best practices for state courts to use in termination hearings for Native parents.

However, in 2016, the BIA changed course and issued binding regulations upon the states. These regulations were intended to promote uniform application of ICWA across the nation and raise the evidentiary standard required to terminate parental rights. Specifically, the 2016 Regulations used permissive language in discussing the expert witness's exposure and knowledge of tribal norms, stating, “[an expert witness] should be qualified to testify as to the prevailing social and cultural standards of the Indian child's [t]ribe.” Meanwhile, witnesses must possess knowledge regarding “whether the child's continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” While this change to the standard for qualifying an expert witness seems minimal in nature, Alaska's case law exposes the dangers and shortcomings of this new regulation.

Specifically, this Note argues that Alaska's interpretation of the redefined expert witness requirement has removed Native voices from termination proceedings and caused a perverse outcome for Native children: a significant delay in permanency. This Note argues that Alaska could improve protections for Native children and integrate Native voices in termination proceedings if the legislature adopted its own state ICWA protections. To achieve this aim, this Note identifies areas of improvement within the expert witness requirement and suggests ways for the state to implement these solutions within Alaska's ICWA provisions.

Part II introduces the complexities of family law and outlines the termination process for a non-Native child. Part II also provides insight into the historical mistreatment of the Native community and how these trends influenced the creation of ICWA. Part III dissects the language of the 1979 Guidelines, 2015 Guidelines, and 2016 Regulations, and analyzes the Alaska Supreme Court's interpretation under each scheme. Finally, Part IV concludes by suggesting changes that can be implemented at the state level, with each intended to improve outcomes for Native children.

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In summary, because of the BIA's 2016 Regulations, ICWA protections have resulted in a lack of permanency for Native children. To rectify these concerns, federal reform is necessary, although there are protections that can be implemented at the state level in the interim. Ultimately, federal and state legislation should conform to the original intent of ICWA: prevent the removal of Native children from stable home environments for culturally insensitive reasons. The only way this can be accomplished is if cultural voices are present, respected, and celebrated within termination hearings.

J.D., Duke University School of Law, 2023; M.S., Management, Lehigh University, 2020; B.A., English & Psychology, Lehigh University, 2019.