Abstract
The Indian Child Welfare Act (ICWA) requires the testimony of a qualified expert witness to support, beyond a reasonable doubt, the termination of parental rights in cases involving Native children. Initially, Congress expressed a preference for qualified expert witnesses to possess intimate knowledge of Native tribes' childrearing norms and practices. However, the permissive language of the 2016 Regulations has deemphasized this preference. Instead, the Alaska Supreme Court has interpreted the 2016 Regulations as requiring an expert to be qualified to testify about the mental, emotional, and physical wellbeing of children, therefore requiring formalized education in these areas of study. This has disqualified many Native witnesses who previously testified as experts based on their firsthand experience and knowledge of tribal norms. This resulted in many parental termination decisions being appealed, and eventually overturned, therefore increasing the time a Native child must wait to achieve permanency through adoption. As the nation awaits the U.S. Supreme Court's ruling on the constitutionality of ICWA's placement preferences, Alaska's interpretation of the 2016 Regulations continues to prevent Native children from achieving permanency. The 2016 Regulations have permitted the Alaska Supreme Court to return to the standard it created under the 1979 Guidelines—a categorical determination that numerous ICWA termination hearings do not require expert cultural witness testimony.
State v. Cissy A., a recent Alaska Supreme Court decision, marks yet another change to the expert witness requirement. Cissy A. provides a return to ICWA protections that adequately encourage and respect tribal cultural norms and increase positive outcomes for Native children. However, this case is only a starting point. As such, this Note suggests that Alaska's legislature should adopt its own state ICWA protections to better integrate Native voices in the parental termination process. In addition, this Note identifies and discusses concerns that lingered in Cissy A. and proposes ways these concerns could be addressed in the state ICWA provision.
Citation
Melissa Gustafson,
Indian Child Welfare Act: A Roadblock in a Native Child's Pathway to Permanency,
40 Alaska Law Review
61-101
(2023)
Available at: https://scholarship.law.duke.edu/alr/vol40/iss1/4