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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Adoption of: Sara J., Joel J., and Morris J. (11/10/2005) sp-5957

Adoption of: Sara J., Joel J., and Morris J. (11/10/2005) sp-5957

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


In the Matter of the Adoption of: ) Supreme Court Nos. S- 11301/11312
)
SARA J., JOEL J., and MORRIS J., ) Superior Court No. 4BE-03-64/65/66 PA
)
Minor Children. ) O P I N I O N
)
[No.
5957 - November 10, 2005]


          Appeal  from the Superior Court of the  State
          of  Alaska, Fourth Judicial District, Bethel,
          Dale O. Curda, Judge.

          Appearances:  Eric D. Johnson, Association of
          Village Council Presidents, Bethel, and  Mark
          Regan,  Alaska  Legal  Services  Corporation,
          Bethel,  for  Appellants  Native  Village  of
          Kasigluk,  Frank B., and Tonya B.   Mary  Ann
          Lundquist,   Assistant   Attorney    General,
          Fairbanks,  and  Gregg  D.  Renkes,  Attorney
          General,   Juneau,  for  Appellee  State   of
          Alaska,  Department  of  Health  and   Social
          Services.    Michele  Power,   Angstman   Law
          Office, Bethel, for Appellee Matilda W.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          EASTAUGH, Justice.
          BRYNER, Chief Justice, concurring.


I.   INTRODUCTION
          Matilda W., a caucasian living in Bethel, petitioned to
adopt  three sibling Native children.  The superior court granted
her  petitions  over  the objections of  the  Native  Village  of
Kasigluk and a Native couple who were interested in adopting  the
children.  The  Indian  Child  Welfare  Act1  (ICWA)  establishes
preferences  for  placing  an  Indian  child  within  the  childs
extended family, with other members of the childs tribe, or  with
other  Indian  families.2   The prevailing  social  and  cultural
standards of the Indian community apply in meeting the preference
requirements.3    A  court  may  deviate  from  these   preferred
placements only upon a showing of good cause.4
          Do  the  prevailing social and cultural standards  also
govern the good cause determination?   We hold that they do  not,
but  that  they remain relevant if the good cause inquiry  raises
questions  about  the  suitability  of  a  statutorily  preferred
placement.   They  may  also inform, but need  not  control,  any
determination  of  whether  a  childs  special  needs  or   other
circumstances   constitute  good  cause  to  deviate   from   the
preferences.
          Because the superior courts good cause findings in this
case  are  supported  by the evidence and do  not  implicate  the
suitability of a preferred placement, we affirm its determination
that  there  is  good cause to deviate from the preferences.   We
therefore  affirm  the  decrees  granting  Matilda  W.s  adoption
petitions.
II.  FACTS AND PROCEEDINGS
          Sara  J.,  Joel  J., and Morris J. are  the  biological
children  of  Isabel  B. and Roger J., who were  members  of  the
Native  Village of Hooper Bay and the Native Village of Kasigluk,
respectively.5  The oldest child was born in 1994;  the  youngest
was  born in 1999.  The parental rights of Isabel and Roger  were
terminated in January 2003.
          Sara and Morris first entered state custody in 1997 and
were  placed with a relative in Kasigluk for a year and  a  half.
They  were  briefly returned to their parents, but  were  removed
soon after Joels birth.  Joels medical problems required that  he
be  close to a hospital, and he was placed in a Bethel home,  and
then  with  Matilda W., an unrelated caucasian  woman  living  in
Bethel.   Sara  and  Morris later rejoined Joel  when  they  were
placed with Matilda after the Alaska Office of Childrens Services
(OCS), formerly known as the Alaska Division of Family and  Youth
Services, received reports of harm while they were placed with  a
relative in Bethel.
          OCS continued to seek a workable relative placement for
the  J.  children, next placing them with Jake and Ruby  B.,  the
childrens  maternal uncle and aunt.  After Joel was hospitalized,
OCS  removed  him  from that placement, placing  him  again  with
Matilda  in  January 2002.  Sara and Morris joined  him  there  a
month later.
          Frank  and  Tonya B., another maternal uncle and  aunt,
became interested in having the J. children placed with them, and
sought  a  foster  licensing  in the  summer  of  2003.   Matilda
petitioned to adopt the three J. children in July 2003.
          The  Native Village of Kasigluk, as the tribe with  the
most significant contacts, intervened pursuant to Alaska Adoption
Rule  12(a)  and opposed Matildas three adoption petitions.   The
superior  court  conducted a six-day trial on  whether  to  grant
Matildas  petitions.   The superior court found  good  reason  to
          deviate from ICWA placement preferences and granted Matildas
petitions.   The  superior court found  that  the  children  have
special  educational and behavioral needs that are  best  met  by
Matilda in Bethel, that the childrens ability to attach would  be
irrevocably destroyed and severe damage would result if they were
removed from Matildas care, and that it was in the childrens best
interests  to grant Matildas adoption petitions.  It  also  found
that  Matilda  could adequately meet the childrens cultural needs
in Bethel and that the state had made active efforts to place the
children in a long-term preferred placement.  The superior  court
issued decrees of adoption for each child.
          The  Native Village of Kasigluk and Frank and Tonya  B.
appeal, arguing that the good cause determination under ICWA must
be  governed  by the prevailing social and cultural standards  of
the  Indian community and that the superior courts findings  were
unsupported  by the evidence.  The appellants are represented  by
the  same  counsel.  We refer to them collectively as the  tribe.
The state and Matilda W. are appellees.
III. DISCUSSION
     A.   Standard of Review
          We  review a finding of good cause to deviate from ICWA
preferences  for abuse of discretion.6  It would be an  abuse  of
discretion  for a superior court to consider improper factors  or
improperly  weigh  certain factors in making its  determination.7
Determining whether the superior courts findings comport with the
requirements of  ICWA raises a question of law that we decide  de
novo.8   We review findings of fact for clear error.9  A  factual
finding is clearly erroneous when we are left with a definite and
firm conviction that the trial court has made a mistake.10
     B.   The  Prevailing  Social and Cultural Standards  of  the
          Relevant Indian Community Have Only Limited Application
          in Determining Whether Good Cause Exists To Depart from
          ICWAs Adoptive Preferences.
          
          Congress  enacted the Indian Child Welfare Act  out  of
concern  over the unwarranted break-up of Indian families  caused
by  removal of children by state authorities and the placement of
an  alarmingly  high percentage of such children with  non-Indian
foster  and adoptive placements.11  In an effort to reverse  this
trend,  ICWA specifies preferred adoptive placements  for  Indian
children.12  Thus, 25 U.S.C.  1915(a) provides:
          In  any adoptive placement of an Indian child
          under State law, a preference shall be given,
          in the absence of good cause to the contrary,
          to  a  placement  with (1) a  member  of  the
          child's extended family; (2) other members of
          the Indian child's tribe; or (3) other Indian
          families.
          
Furthermore,  Congress  intended in  enacting  ICWA  that  white,
middle-class  standards  not  be  used  in  determining   whether
preferred placements are suitable.13  Instead,  1915(d) provides:
          The  standards to be applied in  meeting  the
          preference requirements of this section shall
          be   the   prevailing  social  and   cultural
          standards  of the Indian community  in  which
          the parent or extended family resides or with
          which  the parent or extended family  members
          maintain social and cultural ties.
          
          The  three  preferred  placements  listed  in   1915(a)
comprehensively  rank the different possible  family  and  Indian
placements.   Only  for good cause may a state deviate  from  the
three  preferred  placements,  i.e.,  approve  a  placement  with
someone  who  is  neither  extended  family  nor  Indian.14   The
prevailing social and cultural standards of the Indian  community
described in  1915(d) unquestionably apply to disputes about  the
suitability of the preferred placements listed in  1915(a).    We
will  sometimes refer to these as community, prevailing,or social
and cultural standards.
          But  these  standards  do not override  or  change  the
preference  requirements of  1915.  Under  1915(d) the prevailing
standards  are to be used in meeting the preference requirements,
not  to override them.  This means that within a preference  tier
the prevailing standards are to be used in selecting a placement.
But  as  the  statue is structured, it appears  that  social  and
cultural  standards taken alone cannot provide  for  a  different
order   of  preference.   In  other  words,  community  standards
notwithstanding, an extended family member entitled to first-tier
preference under  1915(a) will occupy a higher tier of preference
than a nonextended family member of the childs tribe entitled  to
a second-tier of preference under the same subsection.  Of course
community  standards  may be reflected  in  a  tribal  resolution
setting  a  different order of preference under  1915(d)  and  if
this  is done the new order of preference is legally established.
Furthermore,  the  standards are to be used  in  determining  the
suitability  or  unsuitability of a prospective placement.   They
may,  for  example,  support  a  conclusion  that  a  higher-tier
potential  custodian is unsuitable, thus clearing the way  for  a
lower-tier custodian.
          The  tribes  main contention on appeal  is  that  these
standards also apply to any dispute under  1915(a) about  whether
good  cause  exists to deviate from those placement  preferences.
The  tribe  argues that the superior court erred  by  failing  to
consider  the  prevailing social and cultural  standards  of  the
Village of Kasigluk when it decided whether there was good  cause
to grant Matildas petitions for adoption.  In considering whether
these standards apply to the good cause determination, we look to
the statutory language, legislative history,15 the interpretation
given  the  statute  by the Bureau of Indian Affairs  (BIA),  and
relevant case law.16
          Because we read most of these sources, particularly the
text of the statute and the BIAs interpretation, to indicate that
the  prevailing  social  and cultural  standards  of  the  Indian
community  are  not  generally  applicable  to  the  good   cause
determination,   we   ultimately   disagree   with   the   tribe.
Nonetheless,  because ICWAs purpose and the  BIAs  interpretation
make  the  prevailing social and cultural standards  relevant  to
          the good cause determination insofar as this determination may
implicate  the  suitability of a statutorily preferred  placement
candidate,   many   of   the  tribes  concerns   are   minimized.
Furthermore,  the  superior court may  refer  to  the  prevailing
social  and  cultural  standards  of  the  Indian  community   in
determining whether a childs special needs or other circumstances
are  sufficient to establish good cause to deviate from  1915(a)s
placement preferences.
          The   plain  language  of   1915  suggests   that   the
prevailing social and cultural standards do not apply to the good
cause  determination.   Subsection  1915(d)  dictates  that   the
prevailing  Indian  standards are to be applied  in  meeting  the
preference  requirements of this section.17   Subsection  1915(a)
mandates that these preferences be applied in the absence of good
cause to the contrary.18
          The   tribe,  in  arguing  that  ICWAs  plain  language
requires   application  of  the  standards  to  the  good   cause
determination,  contends  that [t]he preference  requirements  of
1915  of  the  ICWA  can  be met either  by  giving  an  adoptive
preference to a priority placement, or by showing that  there  is
good  cause to the contrary.   (Emphasis in original.)  The tribe
argues  that  the  phrase  meeting  the  preference  requirements
plainly  includes the good cause inquiry and that we  should  not
create  an  exemption  from the prevailing  social  and  cultural
standards   of   the  Indian  community  for   the   good   cause
determination.
          But  we  cannot agree with the tribe and the concurring
opinion  that  the phrase meeting the preference requirements  in
1915(d) plainly includes  1915(a)s good cause inquiry.19  In  our
view,  a court applies the preference requirements by determining
the  suitability  of  potential preferred  placements  using  the
prevailing social and cultural standards of the Indian community.
          Although  they  are part of a common statutory  scheme,
inquiries  into suitable preferred placements are  separate  from
inquiries into good cause.  It is not plain from the language  of
the  statute  that  standards applicable  to  the  issue  of  the
suitability of preferred placements must necessarily  also  apply
to  the  issue  of  good cause.  Rather, accepted  principles  of
statutory interpretation suggest that the opposite is true.
          Congress  specified  in  1915(d)  that  the  prevailing
social and cultural standards are the standards to be applied  in
meeting  the  preference requirements, but did not  specify  that
these  standards  be  applied to the  good  cause  inquiry.   Its
failure to do so suggests that it did not intend the standards to
apply  to  the  good  cause inquiry.  Had Congress  intended  the
states  to apply the prevailing Indian standards when determining
whether  there is good cause to deviate from the preferences,  we
think it would have expressed itself more clearly.20  For example,
1915(d)  could  have stated generally that the prevailing  Indian
standards  apply to disputes under  1915(a).  Or  it  could  have
specified  that they apply in determining whether there  is  good
cause.   Instead,  by dealing with non-Native placements  in  the
good  cause  clause,  Congress  appears  to  have  intended  that
questions  of  the need for non-Native placements be conceptually
          separate from disputes about whether a preferred placement is
suitable.21
          The  tribe  also  argues that in interpreting  statutes
that  protect  the rights of Native Americans,  this  court  must
resolve  any ambiguity in favor of Native Americans.22  According
to   the  BIA,  Congress  left  the  primary  responsibility  for
interpreting  ICWA  to the courts deciding Indian  child  custody
cases.23   We have recognized that other authorities interpreting
the  same  provisions  may  also be useful.24   In  dealing  with
statutes  protecting the rights of Native Americans, the standard
principles  of  statutory construction do not  have  their  usual
force.25   But  this principle is not a license to disregard  the
clearly expressed intent of Congress, nor does it permit reliance
on  ambiguities that do not exist.26  United States Supreme Court
opinions  interpreting statutes protecting the rights  of  Native
Americans have not completely disregarded traditional precepts of
statutory interpretation.27
          A  fair  appraisal of  1915(a) and (d)  demonstrates  a
congressional intent to apply the prevailing social and  cultural
standards   of   the   Indian  community  to  determinations   of
suitability  of  potential  preferred  placements,  but  not   to
determinations  of  good cause to deviate from  the  preferences.
ICWAs context points to the same conclusion.
          The  context  of  ICWAs  enactment  suggests  that  the
prevailing social and cultural standards of the Indian  community
do  not  apply to the good cause determination. The House Reports
analysis  of  section 5, later codified as  1915(d), stated  that
[a]ll   too   often,  State  public  and  private  agencies,   in
determining  whether or not an Indian family is  fit  for  foster
care  or  adoptive placement of an Indian child, apply  a  white,
middle-class standard which, in many cases, forecloses  placement
with  the  Indian  family.28  The House Report also  stated  that
[d]iscriminatory standards have made it virtually impossible  for
most  Indian  couples to qualify as foster or  adoptive  parents,
since  they  are  based on middle-class values.29   Congress  was
clearly  worried  about  the application of  white,  middle-class
values  to  suitability determinations.  Because the  good  cause
inquiry  is  distinct from the suitability inquiry for  preferred
placement  candidates, it falls outside the purview of  Congresss
intent  for the prevailing social and cultural standards  of  the
Indian community.
          The  tribe  argues that the same context  supports  its
proposed  interpretation.  Congress found that in placing  Indian
children, state courts and agencies have failed to recognize  the
essential  tribal relations of Indian people and the  social  and
cultural standards prevailing in Indian communities and families.30
Congress  enacted  ICWA  in large measure  to  protect  the  best
interests  of  Indian children and to promote the  stability  and
security  of  Indian tribes and families by the establishment  of
minimum  Federal standards for . . . placement . . .  which  will
reflect  the unique values of Indian culture.31  The use  of  the
prevailing social and cultural standards of the Indian  community
to  determine  the  suitability of preferred placements  furthers
this  end  and addresses the specific concern voiced by Congress.
          We are not persuaded that applying the prevailing social and
cultural  standards of the Indian community  to  the  good  cause
determination is necessary to advance ICWAs purposes.
          Subsection 1915(a) establish[es] a Federal policy that,
where  possible,  an  Indian child should remain  in  the  Indian
community,  but is not to be read as precluding the placement  of
an  Indian  child  with  a  non-Indian family.32   But  in  cases
contested  by  Indian communities, this could  be  precisely  the
effect of applying the communities prevailing social and cultural
standards to the good cause determination.33  There was  evidence
here  that  Yupik  standards dictate that Yupik  children  should
invariably  be  raised by Yupik people.  Applying the  prevailing
social  and  cultural  standards to the good cause  determination
would effectively nullify the good cause exception in any case in
which  a  tribe intervened under Alaska Adoption Rule  12(a)  and
offered equivalent evidence.34  Such a result would be contrary to
accepted precepts of statutory interpretation.
          The tribe notes that almost every ICWA case involves  a
determination  of good cause.  This suggests to  the  tribe  that
applying  non-Native  standards to the good  cause  determination
would  create a loophole, eviscerating the protections of   ICWA.
The  tribes  fear  is  misplaced.  First, as outlined  below,  in
determining   whether  good  cause  exists,  white,  middle-class
standards  may  not be applied to reassess the suitability  of  a
preferred  placement.  Second, under Alaska  law  the  burden  of
showing  good  cause is on the party proposing placement  outside
the statutory preferences.35  The BIA Guidelines for State Courts
note  that  this allocation of the burden of proof  is  necessary
[s]ince   Congress  has  established  a  clear   preference   for
placements  within  the tribal culture.36  (The  BIA  issued  the
Guidelines  to  provide  nonbinding  guidance  to  state   courts
interpreting  ICWA.37)  We are satisfied that these  protections,
together  with  the sound judgment of Alaskas trial  courts,  are
sufficient to preserve ICWAs protections for Indian children  and
communities.
          The  tribe suggests that our cases are not inconsistent
with applying the prevailing social and cultural standards of the
Indian  community  to  the  good cause  determination,  but  only
reflect  the  lack  of  evidence of those  standards.   Thus,  it
contends  that applying these standards is required in this  case
where,  for  the  first  time,  the tribal-standards  mandate  of
1915(d)   [is]  directly  at  issue.   The  tribes  approach   is
problematic  in  several respects.  First, the  tribe  offers  no
criterion by which to measure whether sufficient evidence of  the
prevailing social and cultural standards of the Indian  community
has  been  presented  to  determine good  cause  based  on  those
standards.   Second, it would create unnecessary  uncertainty  in
litigation,  as  the  state and potential  non-Native  placements
could  not be certain of the standard by which they had to  prove
good  cause  until  the  trial was well  underway.    This  would
prolong litigation in cases which require expeditious resolution.38
          The   tribe   also   argues  that  cases   from   other
jurisdictions  support its contention that the prevailing  social
and  cultural standards of the Indian community apply to the good
          cause determination.  In Matter of Baby Boy Doe,39 the Idaho
Supreme  Court  addressed this question.  After quoting  the  BIA
Guidelines  regarding the good cause inquiry,  the  court  stated
that
          [i]n  determining whether good cause existed,
          the trial court rejected the arguments by the
          adoptive  parents counsel that the  child  is
          old enough to request a preference; the child
          has  extraordinary physical needs  mitigating
          against   the  preferences;  and   that   the
          proposed  Indian placement (with the maternal
          aunt  and  uncle)  is unsuitable.  The  trial
          court  demonstrated knowledge  of  applicable
          legal  standards  in rejecting  the  adoptive
          parents  argument  that negative  social  and
          economic   conditions  on   the   reservation
          constitute   good  cause.  The  trial   court
          correctly  held that ICWA requires the  court
          to  apply  the prevailing social and cultural
          standards of the Indian community.[40]
          
          In  Baby  Boy  Doe,  the  non-Native  adoptive  parents
mistakenly argued that negative social and economic conditions on
the  reservation  constituted good cause for departing  from  the
preferences.41  But these conditions would be relevant, if at all,
to  the suitability of potential Native relative placements,  and
as  such  had to be viewed in light of the prevailing social  and
cultural  standards of the Indian community.  The courts language
does  not suggest that the childs ability to request a preference
or  the existence of extraordinary physical needs is governed  by
the  prevailing  social  and cultural  standards  of  the  Indian
community.42
          The  Baby  Boy  Doe  court suggested that  whether  the
psychological  need  for  permanence  could  be  satisfied  by  a
relative  placement  should be analyzed in  light  of  an  Indian
standard.43  But the court ultimately affirmed the finding of good
cause  based on the biological mothers preference, the  certainty
of  emotional  trauma if the child was removed from the  adoptive
parents,  and  the likelihood of emotional trauma  if  the  child
encountered  the  father while living on the  reservation.44   In
concluding  that  these considerations together constituted  good
cause  under  the applicable legal standards, it did not  discuss
them  with  reference  to  the  prevailing  social  and  cultural
standards of the Indian community.45  The court instead  approved
of  applying the prevailing social and cultural standards of  the
Indian community primarily to the determination of suitability.46
          Similarly, In re Jullian B. reversed a finding of  good
cause  because the trial court failed to consider several factors
in  light of the prevailing social and cultural standards of  the
Indian community.47  The social worker in that case was concerned
about  the  potential placements age, his inability to suggest  a
person  who  could care for the minor if he became incapacitated,
his  prior conviction for vehicular manslaughter of a child  when
he  was  driving under the influence, his failure to rehabilitate
          for many years . . . [and] his health and his lack of support
system . . . .48  None of these concerns implicated special needs
of the child.  Instead, each of these factors was relevant to the
suitability of the potential Native relative placement, and  thus
had  to  be  considered  in light of the  prevailing  social  and
cultural   standards  of  the  Indian  community.49   The   court
ultimately reversed on other grounds,50 but never suggested  that
the  prevailing  social  and cultural  standards  of  the  Indian
community  apply  to  anything  determining  the  suitability  of
preferred placements.
          These  cases recognize that the prevailing  social  and
cultural standards apply to determinations of the suitability  of
preferred placements even if the suitability determinations arise
in  the context of the good cause inquiry.  We do not read  these
cases  as  requiring  that  the prevailing  social  and  cultural
standards  of  the Indian community apply to all aspects  of  the
good cause inquiry.
          Our  conclusion that the prevailing social and cultural
standards of the Indian community do not generally apply  to  the
good  cause  determination is supported by  the  BIA  Guidelines,
which  suggest  three  factors to consider  in  determining  good
cause:
          (i)  The request of the biological parents or
          the  child  when the child is  of  sufficient
          age.
          
          (ii)  The extraordinary physical or emotional
          needs   of   the  child  as  established   by
          testimony of a qualified expert witness.
          
          (iii)       The  unavailability  of  suitable
          families   for  placement  after  a  diligent
          search   has  been  completed  for   families
          meeting the preference criteria.[51]
          
As the Guidelines observe, the legislative history indicates that
the  term  good cause was designed to provide state  courts  with
flexibility  in  determining  the  disposition  of  a   placement
proceeding involving an Indian child.52  This flexibility is not a
license  to impose non-Native standards when courts consider  the
suitability   of  statutorily  preferred  placement   candidates.
Rather,  it is an authorization to take the childs special  needs
into  account when determining whether good cause exists to place
the child outside the statutory preferences despite the existence
of an otherwise suitable home within the preferences.
          Applying   white,   middle-class   standards   to   the
suitability  inquiry as an aspect of the good cause determination
could  effectively  read  the  preference  requirements  and  the
prevailing social and cultural standards of the Indian  community
out   of  the  statute.   This  would  occur  if  courts,   while
determining  whether there is good cause for deviating  from  the
statutorily preferred placements, could apply white, middle-class
standards to examine or reexamine the suitability of a Native  or
relative placement deemed suitable under prevailing Indian social
and  cultural  standards.   This is the  very  problem  ICWA  was
          enacted to eliminate.  Our holding today respects the purposes of
ICWA by preventing non-Native standards from being used to decide
that a preferred placement is not suitable.
          The  qualifications required of expert witnesses in our
ICWA  cases  reinforce this conclusion.  In some parental  rights
termination  cases,  experts with specialized  knowledge  of  the
Native   culture  are  needed  because  social  workers   without
expertise  are  unable  to  distinguish  between  the  prevailing
standards of the Indian community and actual abuse and neglect.53
But  so  long  as  issues of cultural bias  are  not  implicated,
experts need not have training in the cultural standards  of  the
Indian community.54  These rules reflect an implied judgment that
while  the  suitability of a Native household must be  viewed  in
light  of  the  prevailing social and cultural standards  of  the
Indian  community, courts are not compelled to analyze  a  childs
special  needs  according to those standards.  Such  needs  would
demonstrate  good  cause if, as the superior  court  found  here,
adequate  facilities to address them were not  available  to  the
preferred  placement  but  were available  to  the  non-preferred
placement.55
          In  determining whether a childs special needs rise  to
the  level  that  constitute  good  cause  to  deviate  from  the
preferences,  the  superior  court may  consider  the  prevailing
social  and  cultural standards of the Indian community.   Courts
should be sensitive to any differences in the circumstances  that
allow  children to flourish in Native and non-Native communities.
But  courts  need not ultimately apply the prevailing social  and
cultural standards of the Indian community in determining whether
the   resources  available  to  an  otherwise-suitable  preferred
placement are adequate to address the childs special needs.
          The  concurring  opinion contends that  the  prevailing
social  and  cultural standards of the Indian community  directly
apply  to  the  good  cause determination.   This  contention  is
grounded on a perception of the role of the placement preferences
and the good cause determination fundamentally different from our
own.   The  concurring  opinion  suggests  that  the  good  cause
determination  is  a  device for choosing  between  non-preferred
placements  and suitable preferred placements.56   If  this  were
indeed  the  role of the good cause inquiry, we would agree  that
the  prevailing  social  and cultural  standards  of  the  Indian
community must govern.
          But  although  it  is correct that the word  preference
generally connotes a choice between two options,57 we read  ICWAs
structure and purpose to preclude choosing between preferred  and
non-preferred placements if the preferred placement is  suitable,
as  measured  by the prevailing social and cultural standards  of
the  Indian  community.  The existence of  a  suitable  preferred
placement   precludes  any  consideration  of   a   non-preferred
placement unless good cause exists, for example, because  another
preference  has  been  expressed  by  the  child  or  the  childs
biological  parents, or because the child has special needs  that
cannot be met by an otherwise-suitable preferred placement.
          The   concurrence   also  contends  that   the   courts
interpretation of  1915 creates an unrealistic dichotomy  between
          placement decisions and good cause determinations.58  It
characterizes  the  suitability  determination  required  for   a
preferred  placement  and the special needs assessment  necessary
for  a good cause determination as flip sides of the same coin.59
But  that  is not how the words of the statute treat  them.   The
statute  expressly envisions good cause as an  exception  to  the
general  rule  of  preferred placements.   As  noted  above,  the
proponent  of placing a child in a non-preferred placement  bears
the burden of demonstrating that the childs special needs require
that  placement.  The concurrence is doubtless correct in  saying
that  any  placement  decision involves  examining  more  than  a
potential  placements abstract ability to care for a hypothetical
child.60   But a good cause determination is nonetheless  legally
and analytically distinct from a placement decision.  It requires
extenuating  circumstances beyond the typical  considerations  at
issue in a placement decision.
          In  holding  that  the prevailing social  and  cultural
standards  of  the  Indian  community apply  to  the  good  cause
determination  only  when it implicates  a  preferred  placements
suitability, we recognize our disagreement with a decision of the
Minnesota  Supreme Court.  In Matter of Custody of  S.E.G.,  that
court  rejected  a  trial  courts  finding  that  the  need   for
permanence was an extraordinary emotional need and that  adoption
was  the only way to meet that need.61  On appeal, the court held
that  evidence of a special need for permanence must be presented
by  qualified  experts  with knowledge of the  Indian  community,
suggesting  that  permanency  is defined  differently  in  Native
American  cultures.62   The court thus seemingly  integrated  the
prevailing social and cultural standards of the Indian  community
of   1915(d) into the  1915(a) good cause analysis while  leaving
open  the  possibility that the location of  necessary  treatment
services would not fall under  1915(d)s purview.63  Nevertheless,
we  believe  that the words of the statute, the  context  of  the
legislation, and the BIA Guidelines support our holding.
     C.   Substantial  Evidence  Supported  the  Superior  Courts
          Findings.
          
          The tribe argues that the superior courts findings were
not  supported  by substantial evidence.  Many of  its  arguments
hinge  on its contention, rejected above, that the superior court
erred   by  not  applying  the  prevailing  social  and  cultural
standards  of the Indian community.  The superior court  was  not
required to apply those standards, but we still review the tribes
factual contentions.
          1.   The  superior  court did not err in  finding  that
               harm  to  the  children from  living  outside  the
               village was outweighed by the potential harm  from
               being separated from Matilda.
               
          The  tribe  asserts that the superior  court  erred  in
finding  that the damage to the J. children from being  separated
from  Matilda would outweigh the damage that severance from their
Yupik heritage would cause the children.  The tribe asserts  that
the Yupik standard gives less weight to the short-term disruption
          that a removal from [Matildas] home might cause.  The tribe
believes  that  this disruption is outweighed by the  lack  of  a
compass  and  foundation  in  life that  would  result  from  the
children  being  separated from the life blood of their  culture,
and  that  the children will melt like butter into the supportive
environment  of  [their]  home and village  community.   This  is
essentially  an  argument  that the superior  court  should  have
conducted  a  best  interests of the  child  analysis  using  the
prevailing Yupik standards.  But the childrens special  needs  do
not  implicate the determination of suitability for  a  preferred
placement  and  need not be analyzed using the prevailing  social
and  cultural  standards of the Indian community.   The  evidence
suggests that removing the children from Bethel and Matilda would
cause them special harm.64
          Morris  attends  counseling in Bethel.  His  counselor,
Jennifer  Cashion,  testified that he would  likely  suffer  some
regressive behavior if he had to change clinicians before  a  new
therapeutic  relationship could be established.   Dr.  MacIan,  a
clinical  psychologist  acquainted with the  children  and  their
needs,  testified that Morris needs structure.  Cashion testified
that  Morris exhibits symptoms of post-traumatic stress syndrome,
and  Matilda  and  another witness testified to  the  devastating
impact  another move would have on him.  Sara has been  diagnosed
with  an  unspecified  adjustment  disorder  and  meets  criteria
designated  for  emotionally disturbed  children.   Saras  former
counselor expressed both short- and long-term concerns  for  Sara
if she is moved.  We also note that Matilda testified that Morris
told her that he wanted to be adopted by her.
          There  was evidence of the dangers inherent in  raising
Indian  children  in non-Native households.  Dr.  Roll  testified
that  Native children raised in non-Native homes are at  risk  of
erosion  of  language  skills, identity, and cultural  confusion,
identity  diffusion, and identification with the aggressor.   But
Dr. MacIan testified that these concerns can be mitigated in this
case  by taking advantage of opportunities in Bethel to encourage
a positive view of the childrens culture through contact with the
Yupik  culture.   As outlined below, Matilda has  demonstrated  a
willingness and ability to expose the children to Yupik culture.
          In light of the evidence discussed above, we cannot say
that  the  superior court erred in finding that the  damage  that
would  be  caused by separation from Matilda  implicated  special
emotional  needs, and together with the childrens behavioral  and
educational  needs, constituted good cause to  deviate  from  the
preferences.  Nor does the tribe argue that Matilda is ineligible
to adopt the children under state law.
          2.   The superior court did not err in finding that the
               childrens  special needs could be met  in  Bethel,
               but not in the village.
               
          The  tribe  also  disputes the superior courts  finding
that the childrens behavioral and educational needs could be  met
better  in Bethel by Matilda than in Chevak with Frank and  Tonya
B.
          Expert testimony established that the J. children  have
          special needs.  Sara has been diagnosed with an unspecified
adjustment  disorder  and  falls under  criteria  designated  for
emotionally  disturbed children.  Morris has been diagnosed  with
static encephalopathy and fetal alcohol spectrum disorder (FASD).
Joel   has   been   diagnosed  with  static  encephalopathy,   is
hyperactive,  exhibits poor short-term memory, and  suffers  from
developmental  delays and behavioral problems.  Both  Morris  and
Joel qualify for special education.  Morris was in counseling  at
the time of trial.
          Jackson  S.,  the  tribes  expert  witness  on  raising
children  with  special needs in the village  setting,  testified
that  he  relied upon his twenty-eight-year-old and sixteen-year-
old  sons,  his grandchildren, his extended family,  and  various
services  and  workshops outside his village to  help  raise  his
adopted  daughter, diagnosed with fetal alcohol  syndrome  (FAS).
Tonya   B.s   familial  support  network  is  not  so  extensive,
consisting of Frank B.s three siblings and her niece.   She  also
stated  that  she would depend on her fourteen-year-old  daughter
for  help.   Although Frank testified that there are helpers  and
providers  in  the  village for children with FAS,  he  had  only
superficial  familiarity  with  these  services.   And  even   if
treatment  were  available in the village, there is  no  evidence
that it would be as easily accessible as in Bethel.65
          Neither did Tonya demonstrate a clear understanding  of
the  J. childrens needs.  When asked what Morriss needs were, she
responded, Well, if he comes into our house . . . thats when  Ill
find  out  what his needs are.  She also assumed the J.  children
would  be easier to handle now that they are older, stating  that
theyll be, like, mostly on their own with my children.
          Matilda presented evidence that Bethel is well-equipped
to  address  the  special needs of the children.   Joels  teacher
testified  that  Joel needs to be in special education  programs,
and  would benefit from being taught by certified teachers.   She
expressed  doubt  that many preschool programs in  villages  were
taught  by  certified  teachers.  Morris  attends  counseling  in
Bethel  with  his behavioral health clinician.  But for  village-
based  clients,  wellness  counselors  with  less  training  than
Morriss current counselor provide the ongoing counseling.   These
wellness counselors sometimes do not live in the villages.  There
was evidence that if Morris had to change clinicians, there would
likely  be  some  regressive behavior before  a  new  therapeutic
relationship  could  be established.  Sara also  requires  mental
health services to meet her needs.
          A  home  study  of  Matildas home describes  Bethel  as
having  a  full  range  of  health  care,  mental  health   care,
educational, religious, communications, and social services.  The
childrens  teachers  indicated  that  Joel  and  Morriss  special
education  needs  can  be  met  by the  Bethel  school  district.
Morriss  counselors testimony suggests that Bethel also  has  the
behavioral  health  care  facilities necessary  to  meet  the  J.
childrens  needs.  A 2002 Catholic Social Services adoption  home
study  noted  Matildas ability to meet the childrens medical  and
emotional  needs.   Morriss current and Saras  former  behavioral
health  clinician indicated that the children have made gains  in
          therapy and behavior directly related to Matildas care.  Morriss
former teachers agreed.
          Based  on  this  evidence, the superior court  did  not
clearly err in finding that the childrens special needs could  be
met in Bethel, but not in the village.
          3.   The superior court did not err in finding that OCS
               made  adequate  efforts under ICWA  to  provide  a
               statutorily preferred placement.
               
          The tribe also argues that the superior court erred  in
finding that OCS made adequate efforts under ICWA to provide  the
children with a statutorily preferred placement.  The tribe  does
not  assert that this argument depends on the application of  the
prevailing social and cultural standards of the Indian community.
          Four  out  of the eight placements for Morris and  Sara
during the six years since their removal from their parents  have
been with relatives.66  OCS compiled a list of eighteen potential
relative  placements.  It contacted the tribes thirty-two  times,
not   including  contacts  with  individual  relatives  and   the
biological  parents.   Ms. Short, the J. childrens  original  OCS
social  worker,  testified  that she exhausted  efforts  to  find
relative placements before placing the children with a non-Native
family.  Ms. Weston-Smith, the OCS worker assigned to the case in
April  2003, testified that the tribes were informed at all times
that OCS was looking for permanent placement.  She also testified
that  OCS  was  guided  by prevailing Yupik social  and  cultural
standards  in  its  search for a suitable placement  meeting  the
preference criteria.
          The childrens placement history also supports a finding
that  OCS made active efforts to find preferred placements.   OCS
initially  placed Morris and Sara with a relative in  Bethel  but
soon  removed  them  after discovering that the  relative  had  a
history  with child protective services.  The children were  then
placed  with  relatives  in Kasigluk for eighteen  months  before
returning to their biological parents.  After removal from  their
biological parents care, Joels medical problems required  him  to
live  close  to  a  hospital, and he was placed in  a  non-Native
foster  home.   Morris and Sara were placed with relatives  until
reports  of  harm  required their removal and eventual  placement
with Joel under Matildas care.
          There  was  evidence that while the  children  were  in
Matildas care, OCS continued to make substantial efforts to  find
relative placements.  OCS considered and rejected placements with
both  paternal  and maternal grandparents because the  biological
parents  and  other family members with criminal  histories  were
living  in those households.  OCS eventually placed the  children
with relatives Jake and Ruby B., but had to remove them when Joel
had  to  be  hospitalized and Ruby B. informed OCS  that  the  J.
children,  together with five other children  living  with  them,
were   too  much  work  for  her.   Other  relatives  were   also
disqualified  for  placement based on either their  own  criminal
history or the criminal history of an adult living in the home.
          OCS  asked  Frank  and  Tonya  B.  to  be  a  temporary
placement in late 2000, but they declined, stating that it  would
          be too much work.  Sometime between January and August of 2001,
OCS  contacted  them  again to discuss permanent  placement,  but
Tonya again stated they did not want the J. children.  The tribes
contention that OCSs failure to initiate more contact with  Frank
and  Tonya  after being rebuffed twice shows a lack  of  adequate
efforts  under  ICWA  is  unconvincing.   In  January  2002   OCS
contacted the tribe and was informed by counsel that all relative
and tribal placements had been exhausted.
          Based  on  this  evidence, the superior court  did  not
clearly  err in finding that OCS made active efforts  to  find  a
statutorily preferred placement for the children.
          4.   The  superior  court did not err in  finding  that
               Matilda   could  adequately  meet  the   childrens
               cultural needs in Bethel.
               
          Finally, the tribe assigns error to the superior courts
finding  that  Matilda  could adequately meet  the  J.  childrens
cultural needs in Bethel.  The tribe founds this argument on  the
opinion  of  its  expert witnesses on Yupik culture.   The  tribe
argues  that  occasional contacts are not enough, and  that  full
immersion in the culture is essential to all aspects of  a  Yupik
childs  well-being.  The tribes standard of adequacy would  never
allow   placement   outside  the  tribe,  no  matter   what   the
circumstances.   The  tribes  evidence  on  this  point  may   be
persuasive  in  establishing a different  order  for  statutorily
preferred  placement options, where weight may be  given  to  the
tribes preferences as expressed by resolution.67  But because this
aspect  of  the  good  cause  inquiry  does  not  implicate   the
suitability  of a preferred placement option, it is not  governed
by  the  prevailing social and cultural standards of  the  Indian
community.   Here,  the suitability of Matilda,  a  non-preferred
placement,  is  governed by state law and state  standards.   The
superior   court   was  therefore  not  bound   to   accept   the
uncontradicted  evidence  of Yupik village  social  and  cultural
standards as the tribe argues.
          The tribe offered Mark Johns expert testimony about the
transmission of Yupik cultural values.  He testified that a child
growing  up  in Bethel could learn Yupik culture and values  with
exposure to language and Yupik elders, and adult male Yupik  role
models  for the boys.  Sara is enrolled in Yupik immersion school
and speaks Yupik better than many of her Yupik friends at school.
Morriss  school has Yupik classes two to three times a  week  and
tries  to incorporate Yupik culture into the curriculum.  Matilda
has  spoken  to a number of Yupik co-workers who are  willing  to
serve as male role models for the boys, including their uncle.
          John  also testified that a non-Yupik family would have
to  make an extra effort, and would need a connection with  Yupik
families willing to help, including taking the children  to  fish
camp.   Matilda  has contacted the Kasigluk Tribal Council  about
the best way to maintain the childrens cultural awareness through
cultural  activities.   Matilda has also evinced  willingness  to
maintain  contact  between the J. children and  their  relatives.
The  children  currently have both non-Native and Yupik  friends.
They regularly attended fish camp in the summer before trial, and
          Sara has gone berry-picking.  They also participate in Yupik
dance.
          The  parties  presented  conflicting  expert  testimony
about  whether  the  childrens cultural needs  could  be  met  in
Bethel.   Dr.  Roll testified that the children could  experience
several problems relating to cultural identity, including erosion
of  language skills, identity confusion, cultural diffusion,  and
identification  with  the aggressor.  But Dr.  Roll  had  neither
visited  Bethel nor examined the J. children.  Dr.  MacIan  is  a
clinical  psychologist  familiar with Morris  and  Sara,  the  J.
childrens  school, history, and home.  Dr. MacIan testified  that
many  problems with cultural identity arise when a child has  had
no  contact  with the non-dominant culture and then has  to  deal
with  negative stereotypes after realizing that he or she belongs
to  that group.  Dr. MacIan testified that this was not a  danger
for  the  J.  children, who understand that they are Yupik.   The
superior  court  evidently credited Dr. MacIans  testimony.   Its
determination  of  credibility between  competing  experts  is  a
factual  finding, which we review for clear error.68  We are  not
left  with a definite and firm conviction that a mistake has been
made69 by the trial court in crediting Dr. MacIans testimony.
          The  tribe  makes  much of Matildas  testimony  to  the
effect  that  the children cannot truly understand their  culture
under her tutelage and with limited opportunity to participate in
village life.  We interpret this to be merely a recognition  that
this  will be a difficult process and that while she can  provide
some  cultural  opportunities, she cannot recreate  the  cultural
experience of living in a Yupik village.  But this does not  mean
that she will be unable to meet the childrens cultural needs, nor
does it disqualify her altogether from adopting the children.
          In Adoption of N.P.S.,70 we held that good cause existed
to  deviate from ICWAs preferences despite cultural disadvantages
when   the  non-preferred  placement  is  minimally  capable   of
providing  for  [the childs] cultural needs.71  Matilda  is  much
better  suited  to  meet the childrens cultural  needs  than  the
placement  challenged  in N.P.S.   There, we  held  that  regular
contact  with extended family and time spent in the  village  was
sufficient to give [the child] an understanding of the  lifestyle
of  the  Yupik culture as well as promot[e] a positive  image  of
himself  as  an  Alaskan  Native.72  Matilda,  in  contrast,  has
demonstrated  the  ability to utilize a  range  of  resources  to
introduce the children to their Yupik culture.
          The  superior court did not clearly err in finding that
Matilda  could  adequately meet the childrens cultural  needs  in
Bethel.
IV.  CONCLUSION
             For  these  reasons, we AFFIRM the  superior  courts
finding  that  good cause existed to deviate from  the  statutory
preferences and its decrees of adoption for the J. children.
BRYNER, Chief Justice, concurring.
          I   disagree  with  the  opinions  reasoning  and   its
conclusion  that  ICWA  1915(d) applies only to the  intra-tribal
portions  of   1915(a)s  placement  requirements.   In  my  view,
1915(d)  required the superior court to use the Indian communitys
cultural and social values in deciding whether good cause existed
for  the  childrens adoptive placement in Matilda  W.s  home.   I
would  nonetheless  reject the broad meaning  of  that  provision
advocated  by  the tribe.  I do not read  1915(d)  to  mean  that
courts  considering non-preferred placements must  recognize  and
enforce  tribal  values  that disqualify  anyone  but  an  Indian
custodian  from adopting an Indian child; nor do I read   1915(d)
as  saying that courts are bound by expert testimony telling them
how  an  Indian communitys values should be applied  to  a  given
case.   Because  my review of the record persuades  me  that  the
superior  court  correctly  applied  ICWAs  placement  preference
requirements  as I understand them, did not clearly  err  in  its
factual  findings,  and did not abuse its discretion  in  finding
good  cause for a non-preferred placement, I concur in  affirming
the judgment.
          ICWAs  preference  requirements  are  spelled  out   in
1915(a).  This provision describes three levels of preference and
requires  state  courts  to  apply  these  preferences  [i]n  any
adoptive placement of an Indian child under State law unless  the
court finds good cause to the contrary:
          In  any adoptive placement of an Indian child
          under State law, a preference shall be given,
          in the absence of good cause to the contrary,
          to  a  placement  with (1) a  member  of  the
          childs extended family; (2) other members  of
          the  Indian childs tribe; or (3) other Indian
          families.[1]
          
          ICWA   1915(d)  then  commands  that,  in  meeting  the
preference  requirements  of  [  1915],  courts  must  use    the
prevailing social and cultural standards of the Indian  community
in  which the parent or extended family resides.2  Todays opinion
would  read  this command as being limited to adoptive placements
in  Indian homes.  In my view this reading is untenable.  On  its
face,  1915(d) applies to all preference requirements set out  in
 1915(a), including that subsections unequivocal requirement that
a  good-cause  determination  be made  before  deviating  from  a
preferred placement.
          Todays  opinion advances no sound basis in the text  or
congressional  history  of   1915 for  reading   1915(d)s  phrase
preference  requirements as excluding the good-cause  requirement
set  out in  1915(a).  The opinion finds its reading implicit  in
 1915(d)s language specifying that an Indian communitys standards
must be used in meeting the preference requirements of subsection
(a).  Because this wording does not authorize Indian standards to
override   the  preference  requirements,  the  opinion  reasons,
subsection  (d)  only requires Indian standards to  be  used  for
selecting  a  placement  within a  preference  tier.3   But  this
reasoning  is  circular because it posits its own conclusion:  it
          assumes at the outset that  1915(a)s good-cause requirement fails
to  qualify as one of  1915(a)s preference requirements.   If  we
start from the textually more plausible assumption that the good-
cause  determination  is  an integral  part  of  subsection  (a)s
preference  requirements, then applying the  good-cause  test  to
override an otherwise available preferred placement would  result
in meeting the preference requirements.
          The opinion similarly posits that  1915(d) applies only
to  Indian  placements  because the language  of  that  provision
explicitly  refers  to preference requirements  but  not  to  the
requirement  of  good  cause.4  The opinion views  this  supposed
omission as suggesting that Congress did not intend the standards
to  apply to the good cause inquiry.5  But again, the opinion  is
circular because it starts from the flawed premise that  1915(a)s
good-cause  requirement is not part of that provisions preference
requirements.  The premise is flawed because  1915(a)  explicitly
extends  to any adoptive placement, and the good-cause  component
of  that provision is an integral part of its requirements in any
adoptive placement involving a non-Indian home.
          The  opinion  tries  to distance   1915(a)s  good-cause
inquiry from its preference requirements by describing the  good-
cause inquiry as merely part of a common statutory scheme.6   Yet
the  link  is far closer than that: the preferred placements  and
good-cause  requirement  are  joined  in  a  single  sentence  in
  1915(a); and, as described there, they function as inseparable,
mutually dependent requirements for any adoptive placements.   By
making  its three listed preferences mandatory unless  the  court
finds  good  cause  to  the  contrary,  1915(a)s  plain  language
integrates  the  good-cause inquiry into any  placement  decision
involving  potential  custodians from more  than  one  preference
tier.
          The  opinion  also suggests that  1915(a) suffers  from
textual  ambiguity  because it lists three preferred  placements,
all  of which are Indian placements, while omitting any reference
to  a fourth category for placements in a non-Indian home.7   But
this  suggestion  is unfounded.  The word preference  necessarily
describes  a  choice between two possibilities, one of  which  is
better   than  the  other.  Thus,  in  listing  three   placement
preferences,   1915(a)  describes  three  preferred  choices   in
descending order of priority.  Because each listed placement is a
preference,  each  necessarily implies the existence  of  a  less
desirable  choice.   And in context, the implied  least-desirable
alternative  for  the  lowest listed  statutory  preference   the
preference  for  other  Indian families  is obviously  non-Indian
families,  which  could  not  have been  listed  as  a  preferred
placement, because it is a non-preferred, default placement.
          Hence,   1915(a) does all that it sets out  to  do:  it
lists  all of ICWAs preferred placements.  And its opening phrase
makes  the  comprehensive  scope of its  preference  requirements
unmistakably  clear  by emphasizing that the  listed  preferences
must  be  obeyed [i]n any adoptive placement of an  Indian  child
under  State law8  not just in a preferred placement to an Indian
home.   Thus,  the  statutes  list  of  preferences  excludes  no
placements.    The  plain  language  of   1915(a)   unambiguously
          requires good cause to be found whenever a court  chooses between
placement in an other Indian famil[y], under  1915(a)(3),  and  a
non-Indian  family.   In specifying what preference[s]  shall  be
given,  Congress  omitted nothing from  1915(a)s text  suggesting
that issues of good cause should be decided differently when they
involve  potential placements with non-Indian  families.9   Given
the  absence  of  textual ambiguity, I see no  justification  for
departing  from   1915s plain meaning; for as  the  court  itself
acknowledges,  our  powers  of statutory  interpretation  do  not
permit reliance on ambiguities that do not exist.10
          The  courts  reliance  on ICWAs  congressional  history
strikes  me  as  equally  unpersuasive.  It  seems  anomalous  to
venture  that  a Congress concerned with stopping  an  exodus  of
Indian  children  to  non-Indian homes would  seek  to  cure  the
problem  by  adopting a good-cause provision that allowed  Indian
values  to govern Indian-home placements but left states free  to
continue using non-Indian values in deciding when to move  Indian
children  into  non-Indian homes.  The  interpretation  of   1915
adopted  in  todays  opinion defeats  Congresss  goal  by  openly
inviting  courts  to  trump Indian community  norms  with  white,
middle-class norms whenever a non-Indian placement can be found.
          The  opinion attempts to repair this flaw  in  its  own
theory  by  shaping   1915s  straightforward  language  into   an
elaborate  yet  ill-defined construct: the opinion   posits  that
ICWA   contemplates  a  distinction  between  preferred-placement
decisions  and  good-cause  determinations.   Preferred-placement
decisions would consider only Indian placements and would require
courts  to  use  Indian  community  values  in  determining   the
suitability  of  potential Indian custodians; by contrast,  good-
cause   decisions  would  consider  only  non-Indian   placements
occasioned  by the lack of a suitable preferred Indian  placement
and  would  require  courts to use white middle-class  values  in
determining  whether  a childs special needs justified  deviating
from the preferred- placement requirements by making a non-Indian
placement.    The   opinion  declares  that  this  interpretation
accurately   reflects  an  implied  judgment   that   while   the
suitability of a Native household must be viewed in light of  the
prevailing social and cultural standards of the Indian community,
courts  are  not  compelled to analyze  a  childs  special  needs
according to those standards.11
          The  opinion  nonetheless concedes that,  if  literally
applied,   this   interpretation  would   create   a   loophole[]
eviscerating  the  protections of ICWA.12  As  the  court  itself
admits,
               Applying  white, middle-class  standards
          to  the  suitability inquiry as an aspect  of
          the    good    cause   determination    could
          effectively  read the preference requirements
          and   the   prevailing  social  and  cultural
          standards of the Indian community out of  the
          statute.   This would occur if courts,  while
          determining whether there is good  cause  for
          deviating   from  the  statutorily  preferred
          placements,  could apply white,  middle-class
               standards  to  examine or reexamine  the
          suitability of a Native or relative placement
          deemed   suitable  under  prevailing   Indian
          social  and cultural standards.  This is  the
          very    problem   ICWA   was    enacted    to
          eliminate.[13]
          
          To  prevent Indian children from the very dangers  that
led Congress to enact ICWA, the opinion declares an exception  to
its own rule: after broadly professing that [t]he existence of  a
suitable preferred placement precludes any consideration of a non-
preferred  placement unless good cause exists;14 it insists  that
in  determining  whether good cause exists,  white,  middle-class
standards  may  not be applied to reassess the suitability  of  a
preferred placement.15
          As  far as I can see, there appears to be no textual or
contextual  support for this approach.  In fact, it appears  that
before todays opinion no legislative body or legal authority ever
conceived of giving ICWA  1915 such a roundabout reading.  To  be
sure,  as the court notes, the congressional record does  suggest
that  ICWAs  drafters were concerned about the difficulty  Indian
couples  encountered  in  attempting to  qualify  as  foster  and
adoptive parents.16  But this hardly supports the conclusion that
these difficulties were ICWAs sole, or even its primary, concern.
It  surely  does  not  justify reading  1915(a)s  plain  language
requiring  placement preferences to be honored [i]n any  adoptive
placement of an Indian child17 as having been meant to cover only
preliminary  placement  determinations  involving  licensing  and
basic  qualifications.  And it certainly cannot justify  ignoring
the  far  broader  purposes  set  out  in  ICWA   190,  the  Acts
introductory  statement of Congressional findings.   Among  other
things, these findings state
          that  there is no resource that is more vital
          to  the continued existence and integrity  of
          Indian  tribes than their children  and  that
          the  United States has a direct interest,  as
          trustee,  in  protecting Indian children  who
          are members of or are eligible for membership
          in an Indian tribe;
          
          .  . . that an alarmingly high percentage  of
          Indian families are broken up by the removal,
          often  unwarranted,  of their  children  from
          them by nontribal public and private agencies
          and  that  an  alarmingly high percentage  of
          such children are placed in non-Indian foster
          and adoptive homes and institutions;  and
          
          .  .  .  that  the  States, exercising  their
          recognized  jurisdiction  over  Indian  child
          custody  proceedings  through  administrative
          and  judicial  bodies, have often  failed  to
          recognize  the essential tribal relations  of
          Indian  people  and the cultural  and  social
          standards  prevailing in  Indian  communities
          and families.[18]
          
          It  is true that the BIA Guidelines do mention the need
to   consider  issues  of  special  needs  in  making  good-cause
decisions;19   but  nothing  in  the  Guidelines  suggests   that
suitability  and  special  needs  issues  should  be  treated  as
mutually exclusive considerations relating to different kinds  of
placement  decisions.   To the contrary, the  Guidelines  mention
both  special needs and the availability of suitable Indian homes
as  factors to consider in making good-cause determinations.   By
referring  to  both criteria in discussing the  determination  of
good cause, the Guidelines plainly indicate that both suitability
and  special  needs  play  an integral role  in  determining  the
existence of good cause.20  Conversely, ICWA  1915 describes both
suitability and special needs as factors to consider in selecting
preferred placements.21  Indeed,  1915(b) makes special  needs  a
mandatory     criterion     for    certain    preferred-placement
determinations  involving  the suitability  of  foster  care  and
preadoptive placements.22  Read together, then,  1915 and the BIA
Guidelines establish that suitability and special needs both  are
legitimate   factors  to  be  considered  in   making   decisions
concerning placement preferences and good cause.
          Common  sense,  if  nothing  else,  dictates  the  same
conclusion.  As a practical matter, a childs special needs are an
indispensable  component of any decision concerning  a  potential
custodians  suitability for a specific adoptive  placement.   For
purposes of establishing suitability, a proposed adoptive parents
abilities  and the adoptive childs needs are flip  sides  of  the
same   coin:  though  not  identical,  they  fit  together,   are
inseparable, and must correspond.  By reading ICWA as  commanding
suitability  decisions for preferred placements  that  completely
ignore  special  needs,  todays opinion demands  an  artificially
narrow  suitability finding that could only examine  a  potential
placements  abstract  ability to care for a  hypothetical  child.
The opinion is equally unrealistic in assuming that special needs
can be considered as part of the good-cause determination without
redeciding  a previous determination of the preferred  custodians
suitability.
          Here, for example, it would seem utterly unrealistic to
imagine  that  a  meaningful evaluation of Frank  and  Tonya  B.s
suitability to become adoptive parents for Sara, Morris, and Joel
could  be  prepared  without carefully  examining  the  childrens
needs;  and  it  seems  equally unimaginable  that  a  good-cause
inquiry  could  avoid redetermining issues concerning  Frank  and
Tonya  B.s  suitability  to  become  adoptive  parents  of  these
children  if  the inquiry ultimately concluded, as it  did  here,
that  Matilda was the only available adoptive custodian  who  was
capable of meeting their needs.
          Todays  opinion  confirms  this  point.   The  superior
courts  decision  in this case understandably  took  a  different
approach  to  good cause than the one newly announced  in  todays
opinion.  The trial court viewed the basic question before it  as
being whether [Matilda] is the best candidate  among the families
deserving to be the childrens adoptive family  to provide for the
          emotional and educational needs of the children.  In other words,
the superior court saw the good-cause inquiry as requiring it  to
find  the  most  suitable parents.  Yet in  affirming  the  trial
courts  ruling,  todays opinion does not  fault  that  court  for
deciding  good  cause  by comparing the suitability  of  all  the
available  adoptive  placements.  To the  contrary,  despite  its
repeated  references to special needs, what the opinion basically
holds is that Matilda appears to be the only suitable parent  for
Sara, Morris, and Joel.
          The  opinions unrealistic dichotomy between suitability
and  special  needs  is  not  its only  practical  problem.   Its
approach  is  also  troubling because it will  invite  courts  to
completely  bypass  Indian  community  values  in  any   adoptive
placement  decision involving a non-preferred  placement.   Using
the  opinions  approach,  courts in such  cases  could  routinely
assume that all proposed Indian placements would be  suitable  in
the  abstract sense; courts could then move directly to the good-
cause determination and, applying white-middle class values, find
the  non-Indian  custodian  to  be the  only  adoptive  placement
actually suitable for the specific children at issue.  After all,
if   suitability  for  parenting  hypothetical  children  can  be
determined  without  considering  special  needs,  then  specific
children will always have special needs.
          This  is  not  what  ICWA  requires.   Section  1915(a)
applies  to  adoptive placements, not preadoptive  placements  or
licensing   decisions   for   future  adoptive   placements;   it
contemplates  custodian-specific and child-specific consideration
of   suitability  and  special needs  in  making  all  preferred-
placement   decisions  as  well  as  in  making  all   good-cause
determinations.    I  would  read  1915(d)  as  applying  to  all
aspects  of adoptive placement decisions required under  1915(a),
including   good-cause   findings  justifying   a   non-preferred
placement.   To this extent, I agree with the tribes position  on
the  meaning  of   1915(d)s  reference  to   1915(a)s  preference
requirements.
          But  I  nevertheless disagree with the tribe as to  the
meaning  of  1915(d)s reference to prevailing social and cultural
standards.   Determining  the meaning  of  this  phrase  poses  a
difficult  problem:  Congress undeniably enacted  the  preference
requirements to ensure that Indian children could remain  in  the
Indian  community whenever community placement would serve  their
best  interests, as viewed by that communitys standards; but,  at
the  same  time,  Congress also expressly recognized  that  these
requirements are not to be read as precluding the placement of an
Indian child with a non-Indian family.23
          As the opinion rightly points out, [t]here was evidence
here  that  Yupik  standards dictate that Yupik  children  should
invariably  be  raised  by  Yupik  people.24   In  pressing  this
evidence, the tribe appears to assume that  1915(d)s reference to
using  the Indian communitys values requires courts to accept  an
Indian  communitys  conclusions  dictating  how  its  traditional
values  should  apply  to a particular placement   including  its
traditional  view  that  its values always  require  a  preferred
placement.
          I  disagree with the tribes assumption.  So does todays
opinion,  of  course.  But unlike the opinion, I think  that  the
problem  can  best be resolved by reading  1915(d)s reference  to
Indian   community   values  to  mean  what  Congress   intended.
Specifically,  I  would  decline to read  1915(d)s  reference  to
prevailing  social and cultural standards as including  community
views  that  flatly preclude non-Native placements.   As  I  read
  1915(d)s  directive, it requires courts to apply  the  everyday
norms and values that the Indian community applies in raising its
own  children within its community; but it does not command blind
acceptance   of   Indian  community  views   that   categorically
disqualify   all   potential  non-preferred   placements.    This
interpretation comports with the context and purpose of ICWA, and
seems   reasonably  necessary  to  avoid  absurd  and  unintended
consequences.    For  if  individual  Indian  communities   could
automatically block non-preferred placements on the  ground  that
community    values    categorically   preclude    cross-cultural
placements,   then    1915(a)s   placement   preferences    would
effectively become placement mandates.
          Here,  the tribes nearly exclusive reliance on evidence
suggesting  that  Yupik standards would always  require  a  Yupik
placement  reflects a basic misunderstanding of  the  meaning  of
1915(d)s  directive  to use the prevailing  social  and  cultural
standards  of  the  Indian  community  when  applying    1915(a)s
preference requirements.  The broad reading of  1915(d) advocated
by  the tribe in this case conflicts with congressional intent to
allow  non-Native  placement  where  good  cause  exists.    More
important,  it  also  conflicts  with  the  express  language  of
1915(a),  which  uses preference requirements not as  substitutes
for the application of state law but as a way of assisting states
in  deciding  upon the placement of an Indian child  under  State
law.25
          As  I  see  it,   1915(d) seeks  to  take  a  pragmatic
approach to the universal pitfalls of cultural bias.  It does not
substitute  the  Indian  communitys  norms  for  the  substantive
requirements of state law; it does not override the judges  usual
duty  to independently decide issues of suitability, good  cause,
and best interests according to state laws substantive standards;
and it does not bind the court to accept expert testimony telling
it  how  to  apply  a communitys standards to a particular  case.
Instead,  the provision simply directs the court to take  a  hard
look at issues of suitability and good cause through the lens  of
the  Indian  communitys basic values  not so  the  community  can
override the courts choice of suitable placements, but simply  to
balance  the scales more fairly toward Indian custody by ensuring
that  judges  applying state law will use the  Indian  communitys
perspective  instead  of  their own to realistically  assess  all
issues   relating  to  the  childs   not  the  communitys    best
interests.
          In  this  case,  compelling evidence was  presented  to
support  a  finding of good cause to deviate from  the  placement
preference.   The  superior court also heard  abundant  evidence,
including  both  lay and expert testimony, concerning  prevailing
Yupik  cultural  and  social  standards.   In  considering   this
          evidence, the court rejected testimony that simply refused to
accept  any  possibility that a non-preferred adoptive  placement
would  ever be suitable under prevailing Yupik norms.  The  court
also rejected the case-specific conclusions reached by the tribes
main  expert witness, Dr. Samuel Roll; it declined to credit them
because  Dr.  Roll  had never actually worked  in  Alaska  Native
villages  or  with Alaska Native children and because  the  court
found  his  conclusions unpersuasive in light of other  testimony
presented  at  trial  and the courts own accumulated  experience.
But  despite rejecting Dr. Rolls case-specific views,  the  court
accepted and considered other important aspects of his testimony,
emphasizing  that it found Dr. Rolls theories and information  to
be generally credible, and only disagreed with his application of
his knowledge to the case at hand.
          The court also carefully considered and balanced all of
the  other  evidence  bearing on the issue of  Yupik  social  and
cultural  standards.   And  with this  evidence  in  mind,  in  a
thoughtful  and comprehensive decision spanning forty pages,  the
court  thoroughly evaluated all relevant aspects of  good  cause,
including  the  suitability of Frank and Tonya B. to  become  the
childrens  adoptive parents, the availability of  other  suitable
preferred placements, Matildas suitability as an adoptive  parent
for  the  children,  her  ability to meet the  childrens  special
needs,  and her ability to meet their Yupik cultural needs.   The
court  ultimately found good cause to deviate from the  placement
preferences  and  concluded that a non-preferred placement  would
serve  the  childrens  best  interests.   The  court  essentially
concluded  that Matilda was the only available placement  capable
of providing a home for the children without subjecting them to a
risk  of  serious  physical and emotional harm;  in  stating  its
conclusion, it specifically found that the risk of harm from  any
other  placement  would  be clearly unacceptable  in  either  the
Western or Yupik tradition.
          Based  on  my  own  understanding  of  ICWAs  placement
preference  requirements, as explained above,  I  would  conclude
that   the   superior  courts  decision  relied  on   a   correct
understanding of the applicable law.  I agree with todays opinion
in  concluding that, on appeal, the tribe has not shown that  any
of   the  trial  courts  central  factual  findings  are  clearly
erroneous  or  that the conclusions the trial court reached  from
those  findings amount to an abuse of discretion.  On this basis,
despite  disagreeing with the opinions view of the law, I  concur
in affirming the superior courts judgment.
_______________________________
     1    25 U.S.C.  1901 et seq. (1978).

     2    25 U.S.C.  1915(a).

          25 U.S.C.  1915 provides in part:

          (a)  Adoptive placements; preferences
          
          In  any adoptive placement of an Indian child
          under State law, a preference shall be given,
          in the absence of good cause to the contrary,
          to  a  placement  with (1) a  member  of  the
          childs extended family; (2) other members  of
          the  Indian childs tribe; or (3) other Indian
          families.
          
          (b)   Foster  care or preadoptive placements;
          criteria; preferences
          
          Any   child  accepted  for  foster  care   or
          preadoptive placement shall be placed in  the
          least   restrictive   setting   which    most
          approximates  a  family  and  in  which   his
          special needs, if any, may be met. The  child
          shall   also   be  placed  within  reasonable
          proximity  to  his or her home,  taking  into
          account  any special needs of the  child.  In
          any  foster care or preadoptive placement,  a
          preference shall be given, in the absence  of
          good  cause  to the contrary, to a  placement
          with
          
          (i)   a  member of the Indian childs extended
          family;
          
          (ii)       a  foster home licensed, approved,
          or specified by the Indian childs tribe;
          
          (iii)      an Indian foster home licensed  or
          approved    by   an   authorized   non-Indian
          licensing authority; or
          
          (iv) an institution for children approved  by
          an  Indian  tribe or operated  by  an  Indian
          organization which has a program suitable  to
          meet the Indian childs needs.
          
          (c)  Tribal resolution for different order of
          preference;  personal preference  considered;
          anonymity in application of preferences
          
          In  the  case of a placement under subsection
          (a)  or  (b)  of this section, if the  Indian
          childs  tribe  shall  establish  a  different
          order of preference by resolution, the agency
          or court effecting the placement shall follow
          such  order so long as the placement  is  the
          least restrictive setting appropriate to  the
          particular needs of the child, as provided in
          subsection   (b)   of  this  section.   Where
          appropriate,  the preference  of  the  Indian
          child   or   parent  shall   be   considered:
          Provided,  That  where  a  consenting  parent
          evidences  a desire for anonymity, the  court
          or agency shall give weight to such desire in
          applying the preferences.
          
          (d)  Social and cultural standards applicable
          
          The  standards to be applied in  meeting  the
          preference requirements of this section shall
          be   the   prevailing  social  and   cultural
          standards  of the Indian community  in  which
          the parent or extended family resides or with
          which  the parent or extended family  members
          maintain social and cultural ties. . . .
          
     3    25 U.S.C.  1915(d).

     4    25 U.S.C.  1915(a).

     5     Pseudonyms are used for the J. children, the  parents,
the adoptive mother, and all other family members.

     6     C.L.  v.  P.C.S.,  17  P.3d 769,  772  (Alaska  2001);
Adoption of N.P.S., 868 P.2d 934, 936 (Alaska 1994).

     7     L.G.  v. State, Dept of Health & Soc. Servs., 14  P.3d
946,  950  (Alaska 2000); In re Adoption of F.H., 851 P.2d  1361,
1363 (Alaska 1993).

     8    L.G., 14 P.3d at 950.

     9    Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).

     10    Id.; Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002).

     11    25 U.S.C. 1901(4).

     12     In  re  Adoption of Bernard A., 77 P.3d 4, 9  (Alaska
2003) (recognizing that placement preference[s] of the ICWA [are]
meant to reverse a pattern of breaking up Indian families and  to
promote  the  stability  of Indian families)  (internal  footnote
omitted).

     13    See H.R. Rep. No. 95-1386, at 24 (1978).

     14    We recognize that if one parent is Native and the other
is  not, the Indian childs extended family may include non-Native
members  who  might  argue for preferred placement  status  under
ICWA.   Despite this possibility, for ease of discussion  we  use
the  term  preferred  placement to denote  Native  placements  as
specified by  1915(a).

     15     In  Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 32-37 (1989), the Supreme Court began its discussion
of  the  meaning  of the word domicile in ICWA with  an  extended
discussion of legislative history.  See also id. at 44-45 (It  is
clear  from the very text of ICWA, not to mention its legislative
history and the hearings that led to its enactment, that Congress
was  concerned  with  the rights of Indian  families  and  Indian
communities vis--vis state authorities.).  We therefore consider
relevant legislative history in deciding this case.

          A  majority of the Supreme Court, to discern  Congresss
intent with respect to a particular federal statute, continue  to
look either to the contextof the problem Congress was addressing,
and  not just literal text, City of Rancho Palos Verdes, Cal.  v.
Abrams,  125  S.  Ct. 1453, 1462 (2005) (Breyer, J.,  concurring,
joined  by  OConnor,  Souter, & Ginsberg, JJ.), or to traditional
legislative history.  Id. at 1463 (Stevens, J., concurring).

     16     John v. Baker, 982 P.2d 738, 747 (Alaska 1999), cert.
denied, 528 U.S. 1182 (2000).

     17    25 U.S.C. 1915(d).

     18    25 U.S.C. 1915(a).

     19    See Slip Op. at 35.

     20     One commentator who argues that the prevailing social
and  cultural standards ought to apply to the good cause  inquiry
has  recognized that the language does not currently support this
reading.   See  Note, The Indian Child Welfare Act:  Guiding  the
Determination  of  Good  Cause  to  Depart  From  the   Statutory
Placement  Preferences,  70 Wash. L. Rev.  1151,  1172-73  (1995)
(Congress  could clarify this by simply inserting the phrase  and
in determining good cause to the contrary into  1915(d).).

     21     The  concurrence  suggests  that  this  reasoning  is
circular.   Slip  Op. at 36.  It argues that we  start  from  the
premise that  1915(a)s good-cause requirement is not part of that
provisions  preference  requirements  a premise  the  concurrence
disputes.  Id.  In our view, the plainest reading of the  statute
warrants  that  premise.   That  Congress  failed  to  write  the
provision  in such a way that made it clear that the  good  cause
determination  was  encompassed by  1915(d) simply  reinforces  a
conclusion already suggested by the text of the statute.

     22     See  John v. Baker, 982 P.2d 738, 752 (Alaska  1999),
cert. denied, 528 U.S. 1182 (2000).

     23     Guidelines  for  State Courts; Indian  Child  Custody
Proceedings,  44 Fed. Reg. 67,584 (Bureau of Indian Affairs  Nov.
26, 1979).

     24     See, e.g., John, 982 P.2d at 747 n.33 (according  BIA
Guidelines  important but not controlling significance);   In  re
Adoption of F.H., 851 P.2d 1361, 1364 (Alaska 1993) (Although the
Guidelines do not have binding effect, this court has  looked  to
them for guidance.).

     25     Montana v. Blackfeet Tribe of Indians, 471 U.S.  759,
766 (1985).

     26    South Carolina v. Catawba Indian Tribe, Inc., 476 U.S.
498, 506 (1986).

     27    Id. at 506-07 (reading the Termination Act to avoid  a
contorted  construction  . . . that conflicts  with  the  central
purpose  and  philosophy of the . . . Act and incongruity  within
the Act); Oregon Dept of Fish & Wildlife v. Klamath Indian Tribe,
473  U.S.  753,  774 (1985) ([E]ven though legal ambiguities  are
resolved  to  the  benefit of the Indians, courts  cannot  ignore
plain  language that, viewed in historical context  and  given  a
fair  appraisal, clearly runs counter to a tribes later  claims.)
(internal  quotations omitted); see also South Dakota v.  Yankton
Sioux  Tribe,  522 U.S. 329, 348-49 (1998) (examining  historical
context of treaty, considering maxim that statutes ought  not  be
read  so as to render words redundant, and referring to analogous
precedent  in  concluding  that its  reading  of  statutes  plain
language was reasonable interpretation).

     28    H.R. Rep. No. 95-1386, at 24 (1978) (emphasis added).

     29    H.R. Rep. No. 95-1386, at 11 (emphasis added).

     30    25 U.S.C.  1901(5) (1978).

     31    25 U.S.C.  1902 (1978).

     32    H.R. Rep. No. 95-1386, at 23.

     33     The tribe argues that this argument is founded on the
unwarranted   assumption   that  all  Indian   communities   will
invariably  oppose outside placements.  But the  argument  merely
recognizes  that such an application of the social  and  cultural
standards   would  give  tribes  power  to  veto  a  good   cause
determination in any case they choose to contest.  We see  little
difference  between  granting  an interested  party  a  veto  and
complete nullification of the provision.

     34     See  25  U.S.C.  1911(c) (1978) (In any  State  court
proceeding  for  the foster care placement of, or termination  of
parental rights to, an Indian child, the Indian custodian of  the
child and the Indian childs tribe shall have a right to intervene
at any point in the proceeding.).

     35    Alaska Adoption R. 11(f).

     36     Guidelines  for  State Courts; Indian  Child  Custody
Proceedings,  44  Fed.  Reg. 67,584,  67,595  (Bureau  of  Indian
Affairs Nov. 26, 1979).

     37    See id. at 67,584.

     38     See  AS 47.05.065(5)(c) ([I]t is important to provide
for  an expedited placement procedure to ensure that all children
.  .  .  are placed in permanent homes expeditiously.);  S.H.  v.
State, DFYS, 42 P.3d 1119, 1125 (Alaska 2002) (The timeliness  of
a  permanent stable placement for the children is paramount . . .
.).

     39    Matter of Baby Boy Doe, 902 P.2d 477 (Idaho 1995).

     40    Id. at 487 (emphasis added).

     41    Id.

     42    See id.

     43     Id.  at 488 (citing Matter of Custody of S.E.G.,  521
N.W.2d 357, 364 (Minn. 1994)).  We discuss S.E.G. below.

     44    Id.

     45    Id. at 488-89.

     46    Id.

     47    In re Jullian B., 99 Cal. Rptr. 2d 241, 250 (Cal. App.
2000).

     48    Id. at 249.

     49    Id. at 250.

     50    The trial court denied the preferred placement based on
a  statutory  disqualification resulting  from  a  forty-year-old
criminal conviction.  Id. at 249-50.  The court held that no good
cause to deviate from the preferred placement existed unless  the
appropriate  agency  requested waiver of the disqualification  or
explained  why it did not, based on the facts of that case.   Id.
at 250.

     51     Guidelines  for  State Courts; Indian  Child  Custody
Proceedings,  44  Fed.  Reg. 67,584,  67,594  (Bureau  of  Indian
Affairs Nov. 26, 1979).

     52     Id.  at  67,584  (citing S. Rep. No.  95-597,  at  17
(1977)).

     53     L.G. v. State, Dept of Health & Soc. Servs., 14  P.3d
946,  952-53  (Alaska 2000) ([T]he primary reason  for  requiring
qualified expert testimony in ICWA termination proceedings was to
prevent  courts  from  basing their  decisions  solely  upon  the
testimony of social workers who possessed neither the specialized
professional  education nor the familiarity with  Native  culture
necessary   to   distinguish  between  cultural   variations   in
child-rearing  practices and actual abuse or neglect.)  (emphasis
in original).

     54    Id. at 953 (holding that where there is clear evidence
that  a  child  faces a serious risk of physical neglect  if  she
remains in her parents care, a trial judge may terminate parental
rights  without  hearing  testimony  from  an  expert  in  Native
cultures).

     55    See Guidelines for State Courts, 44 Fed. Reg. at 67,594
(In  a  few  cases a child may need highly specialized  treatment
services that are unavailable in the community where the families
who meet the preference criteria live.  Paragraph (ii) recommends
that  such  considerations be considered as  good  cause  to  the
contrary.).

     56    Slip Op. at 37.

     57    Id.

     58    Slip Op. at 43.

     59    Slip Op. at 42.

     60    Id.

     61    Matter of Custody of S.E.G., 521 N.W.2d 357, 364 (Minn.
1994).

     62    Id.

     63    Id. at 364 & n.7  (quoting Guidelines for State Courts,
44 Fed. Reg. at 67,594).

     64     We  note  that  despite its  disagreement  over  what
standard  applies  to  the good cause determination,  the  S.E.G.
court  might reach the same result in this case.  In S.E.G.,  the
finding  of good cause was rejected because the childrens special
needs  were  not  established by expert  testimony  from  persons
knowledgeable about Native culture.  S.E.G., 521 N.W.2d  at  364.
Here,  the childrens needs were established through the testimony
of  Dr. MacIan, who has extensive experience studying and working
with Native children, and Jennifer Cashion, whose eight years  of
experience as a counselor have exposed her to significant contact
with  Native  children.  In addition, there  was  testimony  that
three of the social workers who worked on this case were Yupiks.

     65     See  Adoption  of N.P.S., 868 P.2d 934,  938  (Alaska
1994).

     66    Although the record is unclear, it appears that at the
most, one of Joels placements has been in a relative home.

     67    See 25 U.S.C.  1915(c).

     68    Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999)
(It  is  the function of the trial court, not of this  court,  to
judge witnesses credibility and to weigh conflicting evidence.).

     69    Matter of J.W., 921 P.2d 604, 606 (Alaska 1996).

     70    Adoption of N.P.S., 868 P.2d 934 (Alaska 1994).

     71    Id. at 938.

     72    Id.

1    25 U.S.C.  1915(a).

     2    25 U.S.C.  1915(d).

     3    Slip Op. at 8.

4    Slip Op. at 10-11.

     5    Id. at 11.

     6    Id. at 10.

     7    Id. at 10-11.

     8    25 U.S.C.  1915(a) (emphasis added).

9     Indeed,  if  extra-tribal  placements  were  excluded  from
subsection  (a)s  preference  requirements,  there  would  be  no
textual   basis  in  ICWA  for  concluding  that  the  good-cause
requirement in  1915(a) would apply to any non-Indian  placement,
regardless  of  whether or not the court used  prevailing  Indian
community standards under  1915(d).

     10    Slip  Op.  at  12 (quoting South Carolina  v.  Catawba
Indian Tribe, Inc., 476 U.S. 498, 506 (1986)).

     11   Slip Op. at 21.

     12   Id. at 15.

13   Id. at 20.

     14   Id. at 22.

     15   Id. at 15.

     16   See Slip Op. at 13 & n.29.

     17   25 U.S.C.  1915(a) (emphasis added).

18   25 U.S.C.  1901(3)(5).

     19    Guidelines  for  State Courts;  Indian  Child  Custody
Proceedings,  44 Fed. Reg. 67,584 (Bureau of Indian Affairs  Nov.
26, 1979) at 67,594 (relevant provisions set out verbatim in Slip
Op. at 19).

     20   Id.

     21      See    1915(b)   (establishing   preferred-placement
requirements for foster and pre-adoptive placements) (set out  in
full, Slip Op. at 2, n.2).

     22   See  1915(b)(iv).

     23   See Slip Op. at 14 & n.32.

     24   Id. at 14.

25   25 U.S.C.  1915(a) (emphasis added).