Alaska Supreme Court considers whether Adoptive Couple v. Baby Girl applies to State-initiated child protection proceedings

In June 2013, the Alaska Supreme Court held in Native Village of Tununak v. Dep’t of Health & Soc. Servs (Tununak I) that ICWA implicitly mandates that good cause to deviate from ICWA’s adoptive placement preferences must be proven by clear and convincing evidence, rather than a mere preponderance of the evidence. That opinion is here.

Four days later, the Supreme Court issued its ruling in Adoptive Couple v. Baby Girl.  The adoptive parents in Tununak I asked the Alaska Supreme Court to revise its ruling in light of it, based on their argument that ICWA’s placement preferences do not apply in cases where no other party has formally sought to adopt the child. This argument would extend the Baby Girl decision beyond the realm of voluntary private adoptions like the one at issue in Baby Girl and apply it to state-initiated child protection proceedings involving the removal of a Native child from her custodial parent by state authorities.

The parties and the Native Village of Kotzebue, acting as amicus curiae, filed the following supplemental briefs on the issue in November 2013:

Appellee State of Alaska’s is here:  Tununak – Supplemental Brief of Appellee State of Alaska

Appellees H.S. and K.S.’s (the adoptive couple) is here:  Tununak – Supplemental Brief of Appellees H.S. and K.S. – adoptive couple

Appellant Village of Tununak’s is here:  Tununak – Appellant Village of Tununak’s Supplemental Brief

Amicus Curiae Native Village of Kotzebue’s, prepared by NARF, is here:  Tununak – Brief of Amicus Curiae Native Village of Kotzebue

Oral argument before the Alaska Supreme Court was held on January 14, 2014, and can be viewed here.