NATIVE LAW
Supreme Court of Alaska (2022)
Sam MacDuffie
In State, Department of Health & Social Services v. Cissy A., 513 P.3d 999 (Alaska 2022), the
supreme court found that although the Indian Child Welfare Act (ICWA) does not require cultural
expert testimony in every case, the lower court did not err by finding specific cultural testimony
insufficient in two cases. (Id. at 1004). This case consolidated two decisions by the superior court
to deny parental termination. (Id.). In both cases, the Office of Children’s Services (OCS)
petitioned the superior court to terminate parental rights of Alaska Native children. (Id.). Both
petitions were based on findings of substance abuse, neglect, and a failure of the parents to comply
with OCS reunification efforts. (Id. at 1004, 1006). At both trials OCS presented expert testimony
from an expert in child welfare, who testified to the likelihood of physical or psychological harm
to the children if they were to stay with their parents. (Id. at 1005–07). OCS also offered brief,
generic expert testimony with regards to the cultural practices of the relevant tribes. (Id. at 1006–
07). The superior court denied the petitions, reasoning that ICWA required cultural expert
testimony, and that the expert testimony in both cases was insufficiently applied to the particular
families. (Id. at 1008). The supreme court upheld the determination, but it made clear that ICWA
did not require cultural expert testimony in every termination proceeding. (Id. at 1012). Rather,
the court explained that because the statute only stated that testifying experts “should” be qualified
to testify to tribes’ cultural norms, there would be extreme cases in which cultural practices are
irrelevant to the particular facts. (Id.). The court still found, however, that the superior court did
not err in finding that the cultural testimony in these cases was inadequate to terminate parental
rights under ICWA. (Id. at 1015). Therefore the supreme court held that, while not every ICWA
case requires cultural expert testimony, the superior court still properly found the testimony in
these cases insufficient to terminate parental rights under the statute. (Id. at 1004).
