Tribes and Children

Adoption court case a test of state's rules over tribes

by Steve Quinn

Listen to Selina and Hudson Sam talk about their adoptive daughter Natalie and you'll hear the story of a 10-year-old girl bravely learning about an unkind world.

Her mother, a convicted felon, was not fit to raise her. The girl's birth father did not want to raise her.

She spent time in several foster homes, developing an abrasive attitude toward authority before she was 5 years old.

You'll also hear about a girl with long dark hair who can't wait to help her brothers, sisters, aunts and uncles each summer at fish camp.

She loves school in her home village of Huslia. And she's quickly developing her own touch with bead work.

She also goes about her life innocently unaware that she is the axis of a legal fight that one day could be heard by the U.S. Supreme Court.

It's a five-year legal storm swirling around her, and it could affect future adopted Native children.

The issue: Who has jurisdiction over the custody and placement of a tribal member's child? The tribe or the state of Alaska?

The stakes: a loss of a certain sovereignty that Native groups and villages have long enjoyed.

It's a question that could rest with the U.S. Supreme Court if the state of Alaska, which has lost every court battle related to the case so far, has its way.

For now the Supreme Court has referred the case to the U.S. Solicitor General for a review and report on behalf of the United States.

That means it could easily be autumn before either side learns whether the nation's high court will hear the debate.

It's an argument that has traveled from this village of about 800 residents living along the Koyukuk River to the Capitol in Juneau for a heated confirmation hearing and now to Washington, D.C.

State's perceived message

Natalie A. Landreth, who has prevailed on behalf of the Sams and the Native American Rights Fund, calls the state's case an affront to the Native community.

"This is so ridiculous on so many fronts," says Landreth. "It's a message from the state to the tribes that they are either not capable or not entitled to even place their tribal members' children.

"The tribes are the only ones who know about suitable homes for their children.

It's just incredibly insulting to be told you're not a court; you're not allowed to do this."

Landreth says it's not even about the law, but rather a policy change dating to former Gov. Frank Murkowski's administration.

"This adoption is as normal as your utility bill," Landreth says. "It's a run-of-the-mill thing people have been doing forever. I have no idea why this one caught their eye."

Because the birth parents were in Kaltag and the adoptive parents in Huslia, the state believes there is a question of jurisdiction over non-tribal members.

It's a gray area the Supreme Court needs to resolve, according to the state.

In a court filing requesting the high court's attention, the state's argument reads:

"There is an undeniable need for clear jurisdictional rules governing the exercise of government authority in court proceedings concerning the parent-child relationship.

"This Court has (heard disputes) on several prior occasions to address the proper allocation of authority among States and Indian tribes over child custody cases."

Complicating the issue are the two venues: Kaltag along the Yukon and Huslia, 180 miles north along the Koyukok.

The Huslia Tribal Council forwarded the adoption request to the Kaltag Tribal Council in August 2005, and Kaltag awarded the girl to the Sams.

The Kaltag Tribal Council had awarded them permanent guardianship in the summer of 2004, so it was natural for the same council to handle the formal adoption.

Problems for the Sams began after the Kaltag council approved the adoption. The council turned in an adoption decree to the Alaska Bureau of Vital Statistics.

It was believed to be a formality. Getting a new birth certificate for an adopted child so that little girl could bear the family name.

But the bureau disagreed, saying the tribal court "had no jurisdiction or authority to initiate adoption proceedings in this matter," according to the state's court brief under the Supreme Court's consideration.

Landreth and the Sams have prevailed in two state courts and in the U.S. Court of Appeals for the Ninth Circuit.

Ultimately, the Sams did receive the birth certificate, so Landreth is fighting a battle bearing the girl's name but on behalf of future children who may need to be placed in adoptive homes.

Supreme arguments

The state and Landreth each offered their argument to the Supreme Court earlier this year.

As those positions went to Washington, state lawmakers in Juneau raised the issue in confirmation hearings for Alaska Attorney General Dan Sullivan.

The Senate Judiciary Committee took Sullivan to task for spending nearly $80,000 in state funds — wasted money some members say — on an outside firm.

Bill Wielechowski, an Anchorage Democrat, minced no words when addressing the attorney general.

He tells Sullivan: "The facts in Kaltag are this. You had a mom who was convicted of murder and a dad who wanted nothing to do with the child.

"You had the Kaltag tribe that took custody of the child, adopted her to residents in Huslia. All participants consented to the tribal court doing this. All are Native.

"Not one raised any questions. No one raised any concerns about the due process provided by the tribal court.

"And the state comes in and wants to stop this. It makes no sense.

"This is a very bad policy decision. You have the tribes doing work that OCS would be doing.

"You had the tribes doing the work that otherwise would have cost the state money. To the (N)atives of Alaska, I think this is a slap in the face. I think this is bad policy call."

Sullivan countered, saying it wasn't a policy call.

Instead, he says it was an effort to get guidance from the Supreme Court that will help the state moving forward with child placement.

"This is a case where the tribal court was trying to do the right thing; I don't disagree with that," says Sullivan, whose appointment was ultimately not impeded by this issue in his unanimous legislative selection.

"That's why I think working on a broader approach between the state and tribal courts on this issue is the way to resolve this, not through continued litigation.

"It's in the state's best interest to have clarity on this very important issue and I don't think we have it in the law."

French told Sullivan going to the Supreme Court on what he calls "bad facts" has social implications.

"I don't know if you are aware to the degree which you ruffled feathers," French said. "They (the Native community) see this as an attack on the right of tribal courts to exercise concurrent jurisdiction.

"On the one hand it's provoked intense resentment in the (N)ative community. One the other hand it seems like bad facts to go to the Supreme Court on."

In the end, French says this case is a blueprint for collaboration.

"I see this as a place where the state and the tribes can really work together," French says. "The tribes are offering their help.

They are performing an essential service that the state frankly has proved unwilling to provide.

"We are not going to put OCS agents in every village of the state to oversee these issues."

Raising Natalie

While the lawyers were arguing before judges and filing court briefs, Selina and Hudson focused on raising Natalie.

The child arrived to their home after hopping from one foster home to another. In each home, Natalie rebelled, as many foster children do in new homes.

She was an angry child, Selina says, throwing tantrums, ruining toys, resisting a parent's love.

Selina learned this about five years ago when she took a call from a friend who said Natalie needed help.

Having raised Natalie's older brother of the same mother, Selina believed she had a good home for Natalie.

Five years later, Selina says Natalie is an A student in school, completes her household chores and contributes to subsistence efforts, mostly berry-picking.

Natalie is also taking to bead work, meticulously developing her own style while learning the Koyukon Athabascan ways.

She helps take care of the fish during the summertime, be it hanging them, washing them or carrying them into the house.

It's a precocious moment in the life of 10-year-old that Selina recently captured and preserved with her camera.

"She's learning all of the traditional lifestyles and cultures," Selina says. "She's smart and she knows her responsibilities.

"Every day after school she has to talk to us about her homework and the importance of it."

Selina and Hudson had already raised seven of their own children and hosted numerous foster children, and they are in the process of adopting another boy.

They believe their role in the Native community is to provide a happy and healthy home for children.

It's a way of life in small villages: an unwed mother can't care for a child; a tribe provides a home, giving children a chance they may never have otherwise.

"When the Kaltag worker brought her up here, she looked like she needed help and we were there for her.

"She looked like she was lost, like she didn't know what to do, like she was a dreamer. You know how their minds wander and stuff? That was Natalie.

"From the time we got here, we started working with her, and we didn't stop giving up on her."

About a year later, a breakthrough emerged.

"Her last name was Semaken. She came home and asked me 'how come everybody's last name is Sam and my name is Semaken? I want my name to be Sam.'

"She got love from all of us. We all help take care of her. Not only her dad and I, but all of her siblings, and the community.

"I once heard a long time ago it takes a village to raise a child.

"You know what? It does."

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