Modern day treaty could help make Alaska a model for state-tribal child welfare partnership

House Bill 221 is "long overdue," according to Rep. Tiffany Zulkusky, Yup'ik, (D) Bethel, chair of the House Committee on Native Affairs.

by Joaqlin Estus

Tribes say an end to hostilities with the state of Alaska is long overdue.

A bill that would require state acknowledgement of federally-recognized tribes had its second hearing Tuesday and was approved and moved out of the Alaska House Special Committee on Tribal Affairs.
At the hearing questions were raised and addressed about the impact of the legislation on state jurisdiction and sovereignty.

Two witnesses gave legislators a look at what could be a national model for a state-tribal partnership, in 2017 the state of Alaska and a dozen tribes signed an Alaska Tribal Child Welfare Compact.

Nicole Borromeo, Athabascan, general counsel for the Alaska Federation of Natives, said a compact is like a modern-day treaty. "[This one] specifically defines the services and supports that are going to be carried out by our tribes and tribal organizations on behalf of the state as well as the funding streams required," she said.

“I want to call the committee’s attention to the fact that this is the first ever compact that has been negotiated at the state level. And that is something for all of us to be proud of,” Borromeo said. “We [Alaskans] tend to be at the top of the list of undesirables and at the bottom of the good list. In this case we are truly breaking ground and we're on the cutting edge of law and policy. It's just something that all Alaskans should know about and be able to celebrate.”

Francine Eddy Jones, director of tribal family and youth services, Central Council of Tlingit and Haida Indian Tribes of Alaska. (Photo courtesy of Central Council of Tlingit and Haida Indian Tribes of Alaska)

Francine Eddy Jones, Tlingit, is director of tribal family and youth services at the Central Council of Tlingit and Haida Indian Tribes of Alaska.
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“The tribal co-signers don't want to take over the state child welfare system the exact same way that the state has done it and continue to provide services the exact same way the state does. The state is more focused on intervention, including removal of children from homes,” said Eddy Jones. “Tribes want to focus more on prevention.”

She said being locally based, tribes are better able to get help and services to children and parents, and to reach out to extended family before it gets to the point of a child being removed from the family. Eddy Jones said, “If we're able to continue on this path with tribes providing services, we expect to see a decrease in the number of children that are in state custody because they are no longer being be removed from their home.”

She said tribes have had more success in matching children going into foster care with relatives and within tribes so they can maintain ties to their families and to their culture.

“I'll give you just one illustration of a particular case where the state was having a hard time identifying who the child's family was and how to match, whereas the tribe got involved and at the end of the day, this particular case file had 70 names on it," Eddy Jones said. "That's just because tribal members feel more comfortable sometimes talking to their own tribe or tribal organization. So that's a very big win here for the state."

Eddy Jones concluded: “Tribes have been exercising tribal sovereignty under the federal Indian child welfare act since its implementation in 1979, when it was a federal law that was passed and tribes embraced that. Tribes had been at the table working with the state not only in this work under the compact but for the past 42 years, working with families, whether that's on the prevention end or in the intervention side of in terms of children coming into foster care system.” 

The proposed legislation however would remove barriers for tribes that partner with the state on child welfare issues.

As another example of the way a tribe can take a different approach than the state, a tribal judge and former magistrate from the southeast Alaska village of Kake described the tribal court’s focus on healing and prevention. Michael Jackson said people can avoid a criminal misdemeanor record by participating in Kake’s Peacemaking Circle.

“I would say that our interventions without formal charges brought against people here in our community were a preventative measure… They prevented youth and adults from committing other crimes knowing that people loved them in our community, that they were willing to change, they righted the wrong to the victims,” Michael said. “And our community became stronger because of apologies. And for love, respect and forgiveness and our spiritual part, whether it was through the Western way of religion or our culture, modified bad behavior,” Michael Jackson said.
Roberta Moto, Inupiaq, of Deering and Kotzebue in Northwest Alaska, has worked in suicide and substance abuse prevention, and as an administrator in child welfare. She said the state’s taking over services tribes once managed hasn’t worked.

“With the erosion of tribal powers, we have seen a rise in social problems in our villages and I feel very strongly that if tribes resumed their role as tribal courts and mediators in their village, we would see an improvement in the areas of social issues,” Moto said. “Tribes would be empowered to prevent adverse childhood experiences. Childhood trauma is what contributes to higher rates of substance abuse, suicide, and even chronic health problems like heart disease, diabetes and cancer.” She went on to say studies have shown that local self determination helps with school performance, cut juvenile delinquency, and reduce crime.

“If this bill passes, the tribes will have a stable ground to build on and not have to worry if their progress will be set back with each change in administration… I support the recognition of tribes because I want my grandchildren to live in a thriving community where they are safe, their culture's protected, and there is hope for their future. This bill is a historic event for the Alaska Native people,” Moto said.

Dawn Jackson, Tlingit, is executive director of the Organized Village of Kake. She said the tribe has existed since before the state of Alaska and since 1995 has been operating programs in higher education, social services, Indian child welfare, realty, tribal operations, housing and tribal transportation. She said the village has a domestic violence program, and environmental programs as well as the only tribal historic preservation office in the state of Alaska.

“We have built programs without the state's assistance through the years due to the state not recognizing our existence,” said Dawn. The Kake tribe “has been a partner in successful partnerships on regional and national levels. And the missing link in these partnerships is the state of Alaska,” Dawn said. “I urge your legislature, the Senate, the administration, and the courts of Alaska to recognize tribes for Alaska to not just heal, but to grow emotionally and economically in the future.”
Nikki Pollock, Yup’ik, is director of senior services for Orutsararmiut Traditional Native Council, the federally recognized tribe for Bethel, a regional hub in western Alaska.

She said, “This lack of recognition of the Alaska Native tribe here in their territorial jurisdiction creates silos. The lack creates barriers. It's been historically, in my opinion, viewed as a pie where if one gets a bigger slice that means someone else gets a smaller piece. But one bigger slice, more rights for tribes, doesn't mean less pie for other people,” Pollock said. “It doesn't take away state’s rights. It supplements. It gives that recognition that tribes are already federally recognized.”
Director of Southeast Senior Services Maryann Mills said, “Alaska is the only state in the United States that ever requires waivers of sovereign immunity in order for tribes to access these federal funds.” She said tribes get annual audits, handle budgets responsibly and competently provide services,

“Yet the state requires us to waive our sovereign immunity for federal funds given to them by the federal government to give to us,” Mills said. “This process results in costly pass-through fees, putting roadblocks to the tribal government's ability to perform the functions of providing critical services to its citizens. Alaskan Indigenous people face insurmountable challenges. Many of these challenges come from the many years of hostility from the state of Alaska.”

The bill's sponsor Rep. Kopp noted that half of the nation’s federally recognized tribes are in Alaska so state recognition is especially important.

“Alaska Native people and the tribes in particular never had an open declaration of war or hostilities but yet they were removed from their land and were resettled," he said, "and in return for that they gave up aboriginal land claims.”

Rep. Dave Talerica, a Republican from the Denali Borough in Interior Alaska, said questions remain about the effects of the legislation on state and tribal jurisdiction.

“Obviously the topic of sovereign immunity is on everyone's minds and I think that's something that needs to be addressed is what effect, what does this bill do in regards to sovereign immunity; does it have any effect on that with the state? Perhaps that can be answered as the bill moves along through committee,” said Rep. Sarah Vance, a Republican from Homer. “And, what impact does it have on tribal compacting with the current compacts and in the future? These are just some of the questions that have come up. “

Tribal Affairs Committee Chair Rep. Tiffany Zulkosky, Yup’ik, said “I do want to call out to address the concerns around trust obligations and jurisdictional issues that there is explicit language in the bill that says in section four that nothing in this section creates a concurrent trust relationship between the state and federally recognized tribes.

“That really what it's doing is putting into statute a recognition of federally recognized tribes that are already inherently recognized just through a trust relationship with the federal government regardless of the passage of this legislation,” Zulkusky said.

“Especially as the granddaughter of one of Alaska's Territorial Guard members who put his life and his family's situation on the line to protect this state before statehood, I believe that it is important to acknowledge [tribes]," Zulkusky said. "I think one of the most profound moments of the tribal affairs committee last year was when a representative asked ‘what is an opportunity for mutual respect moving forward?’ And the comment of our invited testifier was, ‘visibility and acknowledgement, just seeing and acknowledging the existence of the people.’”

“To recognize Alaska Native people, by doing that we do not diminish the state's sovereignty. We do not diminish the State‘s work moving forward” Zulkosky called the bill long overdue.

The committed voted unanimously to move HB 221 out of committee. It now goes to the Alaska House Committee on Community and Regional Affairs.

Joaqlin Estus, Tlingit, is a national correspondent based in Anchorage, Alaska. Follow her on Twitter: @estus_m. Email her at: jestus@indiancountrytoday.com.

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