KNBA - Anchorage

For years, a small American flag was all that marked the grave of George Fox. Now, his resting place will finally be recognized.

Every year, Unangax̂ elder Gertrude Svarny visits the Russian Orthodox cemetery in Unalaska and puts a tiny U.S. flag on an unmarked grave.

The grave is for her childhood friend, George Fox who was an Unangax̂ soldier who died during World War II.

“It is very powerful that Gertrude Svarny remembered him and has taken the time to honor his memory every Memorial Day to go up to his gravesite and to place the United States flag on his grave,” said Michael iqyax̂ Livingston, a cultural heritage specialist with the Aleutian Pribilof Islands Association. Livingston worked with others to get a grave marker for the World War II soldier.

“Here we are about 77 years later and his sacrifice is basically gone, almost gone. Had it not been for Gertrude Svarny, it would have been completely forgotten,” Livingston said.

Fox was born in 1920 on Unga Island, off the Alaska Peninsula about 250 miles northeast of Unalaska. He joined the U.S. Army in January of 1941 and served in the military police during World War II

The German occupation of Rome began in September 1943, and Allied forces led an offensive campaign that would eventually capture the Italian city.

Fox was killed in action in Ardea, Rome, Italy — just three days before the American forces took possession of the city on June 4, 1944. He’s the only known Aleut/Unangax̂ soldier killed in action during World War II.

When Fox’s body returned to Unalaska, Livingston said his funeral service was at the Russian Orthodox Church.

“He’s buried right next to his mom,” Livingston said. “And his mom was Russian Orthodox and he was Russian Orthodox, too.”

The grave of his mom, Emma Fox, is marked with a large solid black stone with her name on it.

And at 91, Gertrude Svarny, who is an accomplished Unangax̂ artist and culture bearer, continues to visit the grave of her friend.

But he never received a marker. Fox’s grave has been unmarked for more than 70 years, and his name is missing from World War II killed in action memorials in Alaska.

“We really don’t know why this grave was not marked,” Livingston said. “Times were different back in the 1940s. It was basically open-faced racism against people of color, including soldiers of color. And so that might have been a play in it”

“When you compare Private George Fox’s grave, two other graves — for example, out at Fort Richardson National Cemetery — those are, those graves are immaculate lawns and very beautifully placed stones and flags and sidewalks,” Livingston said.

Livingston and others worked for at least five years to get Fox a marker. They managed to get some records from the National Archives. And applied for one.

“We were able to enlist the help of United States Sen. Dan Sullivan. And since Sen. Sullivan’s office got involved and helps us, has helped us in the project, we have finally able to get some resolution from the Veterans Affairs,” Livingston said.

This May, the U.S. Department of Veterans Affairs approved the order of a gravestone for Fox.

“We’re just grateful that the stone is being ordered and hopefully it will arrive in Unalaska soon,” Livingston said.

Livingston estimates the stone will arrive about mid-July, and this will likely be the last Memorial Day without a marker for George Fox’s grave — besides a small U.S. flag from a friend.

On Tuesday, a state commission that oversees historical place names and registries will consider nominations for the National Register for Historic Places.

Alaska’s longest-running fish plant facility, the Diamond NN Cannery, is among the nominations for the Alaska Historical Commission to consider passing on to the National Register of Historic Places. The South Naknek cannery operated almost continuously from 1895 to 2015.

The Alaska Historical Commission is a nine-member panel that advises the governor on programs concerning history, prehistory, historic sites and buildings and historic names.

Katie Ringsmuth is Alaska’s state historian and deputy state historic preservation officer. She has studied and researched the NN Cannery extensively. And prior to her position with the state, she worked to get the site on the historic places registry.

“There’s 51 buildings still standing …  it’s that each building tells a story,” Ringsmuth said. “Those buildings help tell the story of people who oftentimes are omitted or haven’t been included in that history.”

Though largely segregated in the beginning, the cannery eventually became an integrated workforce that consisted of workers of Italian, Scandinavian, Chinese, Filipino, and Alaska Native heritage, among others.

“The fact that these buildings are still standing tells this extraordinary story of people who, you know, whose stories may be lost in the historic record, the written record,” Ringsmuth said. “So that’s why these buildings matter and why it’s so important to care for them. And importantly, to understand, you know, the people whose lives were shaped by them.”

A historic village site in the region is also among the nominations before the commission.

Qinuyang, or Old Igiugig or Kashanak, is a village site in the Bristol Bay region that sits near the confluence of Kvichak River and Slushy Creek. The village site is believed to date back as many as 6,000 years.

In the 1890s, the village was permanently settled as a fishing community. Qinuyang is the Central Yup’ik traditional place name for what is now South Naknek

High Ridge, or the Machetanz Cabin, and the Gould/Morris Thompson Cabin are also among the considerations.

To qualify for the national registry, a site must be at least 50 years old and meet at least one of four criteria:

• Does it reflect an important period in American history?
• Is it associated with a significant person or group?
• Does it have architectural significance?
• Will it yield more information down the road?

The Alaska Historical Commission will also consider changing the name of natural geographical landmarks.

One of those proposals would change the names of two peaks 15 miles southeast of Anchorage. In the 1950s, railroad workers named the mountains Suicide Peaks.

Palmer resident Bill Pagaran is a musician and works in the mental health field and suicide prevention.

“I’m an avid hiker. I, you know, I love to hike. And a few years back, I found out that there’s a couple of mountains just right outside of Anchorage, and I found out that there’s a couple of mountains called Suicide Peak,” said Pagaran, who is Tlingit and Filipino and carries the Lakota name Wakanyan Hentopi Na Wakan Gakonka (Sacred Sound of Thunder) and the Tlingit name is Keeg’an (Strong Warrior).

“I was like, ‘oh, my gosh, how horrible is that? Suicide Peak, really?’” Pagaran said. “I understand that talking about suicide in the right context and in the right way is important. But when you hear the word suicide immediately, you’re thinking death. Maybe you’re thinking of giving up immediately.”

Pagaran says the railroad workers submitted the name to the Alaska Mountaineering Club, which accepted it.

“There was no awareness or honor to the people of the land who were are the caretakers of the land, the first peoples of the land,” he said. “In the renaming process, that’s what I wanted to be done. And so that’s why we came up with the name Yuyanq’ Ch’ex.”

Pagaran worked with tribal leaders and elders to develop the name Yuyanq’ Ch’ex, which is Dena’ina for “heaven’s breath,” and applied for the name change.

Other proposals include naming an unnamed lake in the Matanuska-Susitna Borough to Dalteli Lake.

The Alutiiq Museum, which is based in Kodiak, will begin to digitize its collection with the eventual goal of expanding and digitizing collections from other museums.

Museum collections curator Amanda Lancaster says they’re already using a database and have most of their objects catalogued.

“We use a database called Collective Access…. So, we already have sort of the backend where we have all of our objects catalogs to some degree,” she said. “And so we’ll be adding our ethnographic objects to this very specific part of the database. And then later, we’d like to add Alutiiq collections that are around the world. So, there’s some at the Alaska State Museum all the way to France and Finland and beyond.”

The database would allow people to view the collections in one central place.

“I’d like to kind of see like a map that has little pins everywhere and you can just kind of go to the pin and look and see these Alutiiq collections,” she said.

In Juneau, Sealaska Heritage Institute began a similar process that studies physical objects through photographs, electromagnetic patterns and other ways.

The process called photogrammetry allows for three-dimensional documentation of cultural objects, such as carvings, which can be studied in-depth and remotely. The technology could potentially make older pieces held by museums available to artists around the world who might otherwise not have access to the work, says director Rosita Worl.

“It’s really time consuming and hopefully the technology is going to be kind of improved,” she said.

Sealaska Heritage Institute also has worked with 3-D printing to help preserve objects, as well as infrared imaging to see details obscured over time. And it brings up similar questions the Alutiiq Museum brought up on what to make available and for whom. An example of something that might be held behind a privacy wall would be images of clan crests.

Sealaska Heritage Institute has fought for items that are sold at public auction – and sometimes on online auction houses and even eBay.

In one way, the Native American Graves Protection and Repatriation Act (NAGPRA) has inspired multiple pieces of legislation.

Worl says one piece of legislation she’s working on would stop the export of sacred objects overseas and another would give a tax incentive and other benefits to collectors for returning objects to Indigenous people.

Currently many collectors want to sell items and organizations like Sealaska Heritage may not be able to raise enough money to buy them back. And there’s nothing to incentivize the collector to donate the item at a loss. But the legislation would be able to give the collector more compensation for donating an item back to a Tribe or Tribal organization.

Worl says she thinks museums are changing for the better.

“Some of these museums…are trying to follow the social movement that we are seeing in the country, not everywhere, but certainly it is a social movement where equity and the rights of minorities and Indigenous people. At least [they] are saying they [we] rights,” she said. “And so that’s progress.”

She also sees change in younger museum professionals.

“My colleagues are the old guys, and they are just totally opposed to repatriation and NAGPRA,” Worl said. “But I’m seeing the younger generation of museum professionals that are much more understanding and accepting of a Native American belief system.”

Worl says she rewatched footage of a ceremony honoring the return of a 100-plus-year-old Chilkat blanket in 2017. And she wanted to share that video with other museums and historians.

“I think it really exemplified how we feel, how we see things differently, how material objects can have spirit,” she said.

During that ceremony a Seattle couple returned the robe to Sealaska Heritage Institute. The exact origins of the blanket were difficult to determine, and Chilkat weavers planned to study the robe to see how it was made.

Listen to the extended podcast on repatriation at knba.org.

In Alaska, repatriated remains can range from an individual bone or skull up to hundreds of sets of remains.

Between 1910 and 1941, Czech anthropologist Aleš Hrdlička curated the U.S. Museum of Natural History.

In the 1930s, he removed the remains of more than 1,000 individuals and funerary objects from Larsen Bay and brought them to the Smithsonian Institute.

In the early 1990s, the Smithsonian Institute returned many of those remains to the community.

“It was the first time where our people really began to understand why it was so important to have control over our own cultural heritage and by extension, our ancestral remains,” former Larsen Bay resident and Alutiiq Museum executive director April Laktonen Counceller said. “It took years and lots of lawyers.”

That repatriation request process began in 1987, and hundreds of those ancestors were put to rest in 1991.

The Smithsonian repatriation isn’t covered under the Native American Graves Protection and Repatriation Act, or NAGPRA. Instead, the Smithsonian based its policy on a 1989 law that authorized the National Museum of the American Indian.

One of the criticisms of the Native American Graves Protection and Repatriation Act is that it puts a huge burden of proof on Tribes, which may not have access to the necessary records.

On top of that, the people who took those remains or other objects didn’t always keep the best records.

Sealaska Heritage Institute President Rosita Worl received her master’s and doctorate in anthropology from Harvard University.

Worl also worked in the Harvard Peabody Museum and served on and chaired a review committee that worked toward repatriation. She also initiated several repatriation claims, including repatriation of a totem pole taken from Southeast Alaska in 1899.

“We even had a repatriation claim from there with a big ceremony,” Worl said. “I think we repatriated one of the Harriman expedition totem poles. It was from Saxman.”

Worl has sat on both sides of the repatriation table.

“In my time on the review committee, I was in meetings across the country. And it was just heartbreaking, and you know, almost every meeting where we would have Tribal members begging for the return of their ancestral remains. And in NAGPRA we do have this term called culturally unidentifiable human remains,” Worl said. “According to the records, they couldn’t figure out where those these ancestral remains came from. And so Native Americans across the country would be just pleading, you know, please return our ancestors.”

Worl says that Tribes have to provide “the preponderance of the evidence.”

Tribes have to prove a claim using evidence like geographical information, kinship, linguistics and biological anthropology. Recently, repatriation committees began accepting oral traditions.

“I will tell you that initiating a repatriation claim is quite expensive — and especially if it should rise to a dispute,” Worl said. She had to recuse herself twice when the NAGPRA review committee she served on had to handle disputes. She says those disputes cost more than $100,000.

“A repatriation claim requires significant research because you have to prove with the documentation,” she said. “You can’t just say, you know, this is my grandfather’s clan hat. You have to prove through all the documentation that it belongs to a clan. So it’s really — it’s really imbalanced.”

And she says museums aren’t always forthright with sharing documentation.

Sometimes remains and objects are collected by federal and state agencies and then turned over to a university or museum.

One of those repatriation priorities for the Alutiiq Museum was the return of ancestral remains from Chirikof Island, which is about 100 miles southwest of Kodiak.

Alutiiq Museum executive director April Laktonen Counceller — who is a Tribal member of the Sun’aq Tribe of Kodiak — says many of the remains were from a Russian Orthodox graveyard that eroded onto the beach.

Chirikof Island was managed by the U.S. Fish and Wildlife Service. Following excavation in the 1960s, the remains were taken to the University of Wisconsin.

“They were kind of shipped around and traded around with no surviving documentation and ended up at Indiana University at Bloomington, which was not incredibly cooperative,” Counceller said.

Counceller says the Alutiiq Museum sought the release of those ancestral remains for about 15 years before the Department of Interior’s legal division became involved.

“It was a difficult thing to be there for — the final part of that struggle to get those ancestors returned because we felt like we weren’t being heard,” Counceller said. “The archeologist who had possession of the remains seemed to feel that it was their life’s work or have some sort of ownership over the story of them. We asked for copies of all of the research, documentation on the remains and the catalog, which we knew they had, and they refused.”

That’s when the Army Corps of Engineers performed another cataloguing of the collection.

Even the bishop of the Russian Orthodox Church of America got involved. He sent a letter of support asking for the return of the remains so they could be reburied — and for the records to be released.

“That whole situation made me, as a Tribal member, feel a little bit traumatized because we see these people as our ancestors,” Counceller said. “We also had done research into the Russian Orthodox Church records and found the names of people who had been buried in that graveyard in the 1800s. Some of them had living descendants.”

Counceller says the repatriation process can begin a couple of ways.

“Sometimes we get notified by an organization or a museum or university that they’re putting something into the federal register,” Counceller said. “Sometimes we get contacted by our local Tribes for assistance, and in some cases it’s because they don’t really know exactly how to go through that entire process. We also keep a sort of a running list of places that we know of that have ancestral remains from our region. And so we kind of just keep an eye on it, in some cases in the past.”

The Alutiiq Museum isn’t a Tribal organization. It’s Tribally run and Tribally led, but it doesn’t have the Tribal standing to directly negotiate repatriation claims — unless they’re doing so on behalf of a Tribe.

But the museum does keep up-to-date on potential notices.

“As part of a project we’re working on right now, I’ve been looking through those notices and finding some that we weren’t even aware of,” said Amanda Lancaster, the museum’s collections curator.

The NAGPRA registry is available online and searchable by state or region or institution.

Shannon O’Loughlin is the executive director for the Association of American Indian Affairs. She says items can be categorized in a way that creates uncertainty of which Tribe or Tribes to reach out to.

“One of my criticisms of the law is the way it’s written is for summaries that the institution does not have to consult with Tribes to determine what is going to be in its summary,” O’Loughlin said. “That means before consultation, it’s determining what it thinks are sacred objects, objects of cultural patrimony and associated funerary objects.”

On the NAGPRA registry, Harvard’s Peabody Museum lists at least one instance in its collection of culturally unaffiliated remains — coming from the Aleutians West region.

In Alaska, remains are located at the medical examiner’s office, the Museum of the North on the University of Alaska Fairbanks campus and other locations.

But ancestral remains from Alaska are spread out from California to Connecticut.

NAGPRA and most U.S. laws don’t cover the remains that came from outside of what are now colonially imposed borders.

Nor do those laws cover remains and objects that were taken from the U.S. and moved internationally.

“The museums outside of the United States that may or may not have ancestral remains from our area are not subject to United States laws,” Alutiiq Museum’s April Counceller said.

The law also doesn’t require museums or universities to return items for repatriation in any specific way.

So remains of ancestors may be returned in a box — and in some cases, boxes separated into similar parts. A community may get a box of skulls, a box of femurs, et cetera.

One example, Alutiiq Museum director April Counceller says, was during the Chirikof repatriation.

“When people get the remains back, they’re not coming back in coffins. They’re not coming back in the way that we are accustomed in the modern day to see our dead be treated,” Counceller said. “I think that helped the broader community that knew about the situation — that helped them to understand, you know, you wouldn’t like to see your family member come back in individual cardboard boxes.”

And so communities try to give their Elders and ancestors rest in the most respectful way possible.

For Kodiak, the Alutiiq Museum worked with the city and local Tribes and Native corporations to create Ancestors Memorial Park.

Museum director Counceller says it’s less about interment and more about an honoring place.

Some Native communities don’t allow practices to handle ancestral remains — and so sometimes elect to allow a museum to store them in the meantime.

It’s complicated says Harvard professor Phil Deloria, who chairs the Peabody Museum NAGPRA Advisory Committee.

“There are certain things which are under control of the federal government, which are in our collections, and many things have been repatriated,” Deloria said. “Some human remains remain in our collection at the request of discretion of Tribes who have completed the process with us. And then there have been an interesting number of cultural objects, you know, in which there has been exchange.”

Almost 100 years after a Teikweidi totem pole from Southeast Alaska was removed, the Peabody Museum helped repatriate it.

The Cape Fox Corporation donated a cedar tree as a gesture of appreciation, and the museum commissioned Tlingit master carver Nathan Jackson to carve the tree into a pole — the Kaats’ Xóots Kooteeya or Kaats’ and Brown Bear totem pole s a symbol of the Saanya Kwaan Teikweidi clan and history — but also the relationship between the Saanya Kwaan and the Peabody Museum.

“I take my students in to the museum and a lot of Native students, you know, it’s an uneasy experience for those students,” Deloria said. “We stop at the Nathan Jackson pole, though, and talk quite a bit about what collaboration means and the ways in which can be really productive for everybody who’s involved. But it feels to me like things have gone well with Alaska in the past and we look forward to doing more in the future.”

Repatriation hasn’t always been a collaborative process.

But as more universities and museums examine colonization’s dark history and its impact on Indigenous people, many make greater efforts to consult with Tribes in an effort to bring ancestral remains home.

This is the first of a three-part series. The series in its entirety and an extended audio podcast can be found at knba.org.

In early 2021, the Harvard Peabody Museum issued a statement apologizing for its reluctance working with Tribes to return some remains and funerary objects. The social unrest of 2020 had reignited the conversation of returning ancestral remains and sacred objects to their people.

Since contact, Indigenous people and settlers have had a contentious relationship, particularly as settlers appropriated items from traditional Native homelands. These items included totem poles, funerary and cultural objects — even remains of Indigenous ancestors.

Examples include the Edward Harriman Expedition removing a Teikweidi memorial pole from Southeast Alaska in 1899. Or when anthropologist Aleš Hrdlička, an early 1900s Czech-born anthropologist known for unorthodox collection methods such as stripping decomposing flesh from bones, discarded the remains of an infant found in a cradleboard and sent it to the American Museum of Natural History.

“They didn’t have any shame, you know, taking even from graves,” said Rosita Worl, president of Sealaska Heritage Institute, a private non-profit cultural organization based in Juneau, Alaska.

Worl earned her master’s and doctorate in anthropology from Harvard University.

“They just came and took things off of graves,” said Worl, who carries the Tlingit names Yeidiklasókw and Kaaháni, and is Tlingit, Ch’áak’ (Eagle) moiety of the Shangukeidí­ (Thunderbird) Clan from the Kawdliyaayi Hít (House Lowered From the Sun) in Klukwan. “You think about Southeast, it was amazing that we even had anything left.”

Often remains would be removed from Tribes without consent or consultation and stored in university or museum collections — and even in international institutions.

“I mean, museums themselves are institutions of colonialism,” Worl said. “They came in, they expropriated cultural objects, human remains and more, often without the permission of Native American Tribes and others. What they saw as art, we saw as cultural objects.”

And the Indigenous peoples in the United States did not have much recourse until the early 1990s.

The Native American Graves Protection and Repatriation Act — NAGPRA for short — gave Tribes a legal avenue to pursue the return of remains and some funerary objects.

NAGPRA requires publicly funded universities and museums to document and report the remains and funerary objects within their collection. The summaries are searchable by institutions, states where the remains are held and states and general regions of origin.

After a year that saw growth of the Black Lives Matter movement and toppling of colonial monuments and statues, the Peabody Museum announced in January it had about 15 remains of African Americans or those of African descent who likely lived before 1865 and may have been enslaved.

According to museum director Jane Pickering, the museum pledged to try to return those remains to the appropriate communities.

“We felt that this was the moment that the university really needed to engage with this issue,” Pickering said during a interview via virtual teleconference. “There are other institutions that have been thinking along these lines as well, but that it was time for us to really face up to that history as a university, as an institution.”

The release stated that a steering committee would help direct a “multi-year, cross-departmental initiative” to assess its procedures.

The Harvard Peabody collection includes several Alaska Native cultural objects and at least one report of remains from the Aleutians West region.

In a statement, Harvard Peabody said it was working toward consultations with Tribes to return remains and funerary objects in compliance with NAGPRA. And it pledged to develop better policies to address its previous reluctance of turning over some objects.

But Tribes and Native-based organizations like the Association of American Indian Affairs pushed back, questioning the museum’s process.

Shannon O’Loughlin is a citizen of the Choctaw Nation of Oklahoma and the chief executive and attorney for the association, which formed in 1922 to serve Indian Country by protecting sovereignty and preserving culture.

“Harvard tends to cause delay, refuses to make decisions. And often causes extensive burden on Tribes by forcing them to produce evidence of cultural affiliation so they have a long history,” she said.

O’Loughlin says she’s concerned Harvard-educated students would go on to other institutions and perpetuate the same harmful repatriation practices and procedures.

“They have developed their inventories out of alignment with what NAGPRA requires,” she said. “They’ve done so by failing to consult with tribes before they completed their inventory process.”

O’Loughlin says that Harvard Peabody categorized some remains and items as culturally unidentifiable — which means Tribes must provide even more evidence to make a claim.

“That a people can have control and dominion over other peoples to the extent of outlawing their religions and cultures and taking away those things that support that culture’s identity and health is its thinking about that, you know, today that institutions still carry on that that racism,” O’Loughlin said. “Much of their collections may be obtained from the theft and violence of other peoples. We wouldn’t allow that [today].”

Phil Deloria (Standing Rock Sioux Tribe) is a history professor at Harvard University, where he teaches subjects like environmental history and the American West. Deloria says a 2010 amendment to NAGPRA was supposed to lay out other pathways to repatriate culturally unaffiliated — or unidentified — remains.

“In that early moment, museums, institutions were required to prepare inventories to consult with Tribes on these inventories with the goal of identifying as many kinds of remains and cultural objects that could be culturally affiliated with tribes,” said Deloria, who also currently chairs the Peabody’s NAGPRA faculty committee.

“And there’s a certain kind of set of standards of evidence that suggests and many, many things end up in this kind of bucket of the culturally unidentified,” he said.

The Association of American Indian Affairs sent a letter urging Harvard Peabody to change its practices — and O’Loughlin hopes that Tribes have greater opportunity to go through the disposition process.

More than 600 people and organizations signed on in support of the association’s efforts.

Deloria says he recognizes the amount of work a Tribe must go through to make a claim, but it’s an important part of the process.

“I have come to the perhaps odd view that the bureaucratic process, the administrative apparatus, the research, the collaborative things, is a really important part of doing a kind of form of justice and honor to the to the objects and to the human remains,” Deloria said. “It’s also the case that an institution needs to make sure that they repatriating to the right people.”

Harvard Peabody claims it has repatriated about 30% of its collection. The Association of American Indian Affairs says that number is closer to 15%, and the museum may be counting remains it’s coordinating with other museums.

But for Sealaska Heritage President Rosita Worl, who worked in the Harvard Peabody Museum, the overall impact is clear.

“To see that they had 5,000 human remains after 30 some years, you know, I was horrified when I saw that,” she said.

NAGPRA was intended to give Tribes a pathway to return and repatriate cultural objects and remains. But it isn’t without its problems – and Tribes still have a lot of work to continue fighting for repatriation.

This is the first of a three-part series. The series in its entirety and an extended audio podcast can be found at knba.org.

A lawsuit challenging the Indian Child Welfare Act received a split decision in federal appeals court on April 6. The law, the lawsuit and the split resulted in a 300-plus page decision that confounded experts and laypeople alike. The decision won’t impact Alaska directly. But legal experts say Alaska should still keep an eye on the case.

The Indian Child Welfare Act, or ICWA, basically provides tribes with an opportunity to intervene when state child welfare and adoption agencies consider whether to remove a Native child from a home. The children can be enrolled citizens of the tribe or be eligible for membership status.

Alaska Native Justice Center policy director Alex Cleghorn says ICWA was passed in 1978 in response to the disproportionate removal of Native children from their homes, families and communities.

“They were primarily being placed in the homes of non-Native people and growing up without a connection to their culture or to the communities,” said Cleghorn, who worked as a tribal attorney for much of his career, is a citizen of Tangirnaq Native Village and serves on the board of directors for Koniag Incorporated regional Native corporation. “I believe the Alaska Native culture is something that is a strength.”

The Alaska Native Justice Center is an advocacy organization that provides Alaska Native people with direct services in education, victim advocacy, tribal court assistance and more.

What is now Brackeen v. Haaland began in 2018 as a lawsuit in Texas that challenges ICWA. The lawsuit says the federal law discriminates against non-Native families looking to adopt.

“They seem to believe that being a Native person is solely a racial classification, which ignores many years of precedent and legal rulings that as a Native person, our relationship with our tribe is that of a citizen who works in government.”

Erin Dougherty Lynch is a staff attorney at Native American Rights Fund, a nonprofit legal organization that holds the U.S. government to its treaty obligations with tribes as well as laws that affect Native people. Lynch works on a variety of federal Native issues including tribal jurisdiction, sovereignty — and child welfare.

She says the plaintiffs in the Brackeen case argue that ICWA is a law based on race.

“That it’s a race-based law that provides preference to extra services to Native children, to provide preferences to Native families, which should be struck down by the Supreme Court on an equal protection ground,” Brackeen said.

But Lynch says ICWA, along with the bulk of federal Indian policy, is grounded in a political relationship between governments — between federal and tribal governments, and between tribes and their citizens.

ICWA is a federal law that establishes a floor-level basis for reviewing Native child adoption cases. Some states passed their own ICWA laws, but those laws must offer additional benefits — not change or remove the application of federal law.

“States can never do less than what’s in the federal law, but they can always do more,” Lynch said.

For example, Washington state has its own ICWA law.

Alaska does not have a state ICWA law. In 2017, then Gov. Bill Walker’s administration championed and signed a child welfare compact between the state and many Alaska tribes.

“[Compacts are] another kind of tool that we’ve had in Alaska where tribes are working, have compacted on a government-to-government relationship with the state government and with the goal of providing more culturally appropriate services to children in the state’s child welfare system,” Lynch said.

Tribal leaders often testify at Alaska Legislature hearings that Alaska Native children are over-represented in the foster care system.

According to the 2017 Alaska Tribal Child Welfare Compact, even though Alaska Natives represent less than 20% of children in the state, they make up more than half the children placed in foster care.

Cleghorn says the Brackeen case illustrates that more states should be looking at state-based ICWA protections.

“If the federal law is going to continue to be under attack, it may be time to look at a state equivalent to ensure that we continue to recognize tribes recognized as the gold standard in child welfare and protection, and that those protective factors of having children connected to their culture, the tribes and their families are important and should be enshrined in law,” Cleghorn said.

The Brackeen lawsuit worked its way to the United States Court of Appeals for the Fifth Circuit, which covers the federal judicial district in Louisiana, Mississippi, and Texas.

A three-member judges panel heard the case and upheld the constitutionality of ICWA, but with partial dissent. That allowed the plaintiffs to request and receive a full bench — or en banc — decision.

Sixteen judges split down the middle and wrote a 325-page decision. Because of the split, Lynch says the decision largely impacts cases in that district’s region — and wouldn’t affect Alaska directly.

Alaska Native Justice Center policy director Cleghorn is also confident the split decision should not impact ICWA cases in Alaska or in states that are outside of the Fifth Circuit.

“I also think it’s important to keep our eyes open for those of us who do work in this area and represent tribes in this area because sometimes there are misguided attempts to import reasoning or to import reasoning or decisions that may not apply,” Cleghorn said.

For now, legal experts and tribes will keep an eye on the Brackeen case and will be on the lookout for others.

“Certainly, if the case ends up going up before the United States Supreme Court, what the Supreme Court determines will have an effect in Alaska. But right now, you know, state and tribal child welfare workers who are involved in state child welfare cases don’t have to worry about this opinion,” Lynch said.

But Lynch says it is possible that Alaska Native children living in the Fifth Circuit could be affected.

“When you start talking about places that are in states that are in the Fifth Circuit, like Texas and Louisiana and Mississippi, then the whether the case applies is a maybe,” Lynch said. “Which I know might be sort of unsatisfying, but there are sort of these general principles that federal courts don’t necessarily tell state courts what to do. And so it sort of depends state-to-state as to whether or not this is going to have precedential effect in the Fifth Circuit. But for our purposes in Alaska, we we can ignore this decision for now.”

The legal experts and attorneys following the case worked to unravel its many threads and how each one would impact ICWA or their understanding of the case and law.

“It definitely took us a few days to sit down and, like, sort it all out,” Lynch said. “We literally had to map out every issue that had been brought up in the case and then sit down and go through all of the opinions and see how folks had come down. I know the court in those first few pages did issue like a per curiam opinion where they tried to give a synopsis of where the whole thing had come down. But you still really have to sit down and go through it all. And it’s complicated for the lawyers.”

The Native American Rights Fund helped publish a flow chart to help people determine whether the decision impacts their case.

“I guess my takeaway is that the worst did not happen, which is good,” Lynch said. “But there are still pieces of this opinion that are not great.”

Editor’s note: Claire Stremple, Alaska’s Energy Desk, and Isabelle Ross, KDLG-Dillingham, provided editorial feedback on the audio script and web version of this story.