States try to protect tribal rights in custody cases

Concerned about a pending case in the US Supreme Court, some states want to pass new laws that will ensure Native American children can remain in their tribal communities even if they are admitted to the child welfare system.

Later this year, the court will rule on a long-standing federal law designed to ensure Native American children who are evicted from their homes by government agencies are not evicted from tribal communities.

Tribes, attorneys and many state child protection agencies fear a court decision overturning the Indian Child Welfare Act, known as ICWA, could jeopardize decades of work to ensure Native children are not removed from their communities and culture.

Legislators in at least half a dozen states have proposed or passed bills this year to include similar language in state law should federal law become invalid. Eleven states now have such laws on their books.

“ICWA gives the tribe an opportunity to find a place where we can keep children connected to their communities,” said Clare Johnson, counselor for the Northern Arapaho Tribe of Wyoming. “It helps preserve our culture and keeps kids from getting lost in the system.”

Congress passed the Indian Child Welfare Act in 1978 amid growing concern that 25% to 35% of all Native children were removed from their families by welfare authorities – with the vast majority being placed outside of their communities. The separations, which took place through adoption and foster care, followed an era in which hundreds of thousands of local children were forcibly removed from their homes and sent to boarding schools to strip them of their culture, language and religion. The law prioritizes family and tribal placements for Native children in custody cases, while requiring tribes to be informed of such proceedings.

“Indigenous children were removed from their homes under the thin guise of poverty or lack of electricity or [state agencies] don’t understand the community’s responsibility for children,” said Sarah Kastelic, executive director of the National Indian Child Welfare Association, a Portland-based nonprofit that supports Indigenous child welfare systems. “ICWA was created to stop this.”

The Supreme Court case centers on a white Texas couple who adopted a Native American child and their dispute with the Navajo Nation over the child’s placement. The couple and their supporters have argued that tribal favoritism under federal law amounts to racial discrimination and violates the US Constitution’s equality clause. Proponents say the law recognizes the status of tribes as sovereign nations not based on racial status, and a decision to overturn it under that argument could upend all Indian federal laws.

Supporters of the case say it’s unclear how the court will rule or on what grounds the court might decide to overturn the law. Some states make backup plans.

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Earlier this year, Wyoming passed a measure that incorporated ICWA into state law, while also establishing a state task force that will develop recommendations to strengthen and adjust the child custody process if a Supreme Court ruling overturns the current system upside down.

“We want to be prepared and say we’re going to maintain the status quo under state law,” said Wyoming Senator Affie Ellis, the Republican supporter of the bill and a member of the Navajo Nation. “The ultimate goal is to prevent major disruptions. As a human being, as a mother, as a person practicing the federal law of India, I lay in bed at night thinking about possible consequences and that seemed like the wisest course to take.”

Minnesota also codified the federal ICWA language into state law this year, while New Mexico passed a state-specific version with extended protections at the last session. Eleven states have now either done so or passed a state-specific version of the federal law with greater protections. While a Supreme Court decision overturning ICWA on broad equal protection grounds would likely also invalidate those state statutes, other outcomes — such as a ruling that the federal statute exceeds the powers of Congress — could allow state protections to stand.

“Many states and tribes are trying to take the ICWA as it exists and incorporate it into state law,” said Kate Fort, director of the Indian Law Clinic at Michigan State University, which oversees the intervening tribes in the colonel’s case Court represents . “It’s really, really hard to predict a verdict because the court has so many options, and it’s very difficult to advise states and tribes on how to protect themselves pre-emptively.”

Legislators in Arizona, Colorado, Montana, North Dakota, South Dakota and Utah also introduced bills this year to codify or strengthen ICWA protections.

“The [child custody] System is the bane of our existence,” said Montana State Assemblyman Jonathan Windy Boy, a Democrat and member of the Chippewa Cree tribe. “Natives involved in this system were placed in a society that was alien to them, stripped of their culture and history, of who they are.”

Windy Boy is sponsoring a bill that would duplicate federal ICWA protections in state law. The measure passed the House of Representatives and is sitting in a Senate committee. Montana lawmakers are also considering an “ICWA for All” proposal that would apply some safeguards to both Indigenous and non-Indigenous custody cases. Windy Boy said the measures could coexist.

In Utah, lawmakers failed to advance an ICWA bill despite the support of Governor Spencer Cox and Attorney General Sean Reyes, both Republicans and state tribal leaders. Utah is among 23 states that have filed an amicus brief asking the Supreme Court to uphold ICWA.

“We need to react now, rather than be proactive,” said Rep. Christine Watkins, the Republican who backed the bill. “I’ve had MPs come up to me and say they don’t want people of other ethnic groups to call the shots. That’s a real fear [Native kids could be removed from tribal communities]and I’m telling you, many lawmakers don’t care.”

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At a committee hearing on the bill earlier this year, some lawmakers said they supported the intent of the measure but had concerns about specific wording or felt it was premature to act before a Supreme Court ruling.

“It creates this dual competing system in our state where Indigenous children are treated one way and other children are treated differently,” Republican Nelson Abbott said. While adding that the dual systems are “not necessarily an issue,” he said the bill’s language, such as a section referring to tribal customs when defining extended family members, is not clear enough to be applied effectively to become.

Watkins and ICWA supporters say they’ve heard from opponents that custody decisions should be based on what’s best for the child, not tribal preferences. Such arguments, they say, are based on false assumptions.

“To think that situations where a child is harmed or endangered only happens in a tribal home is just a misperception,” said Wyoming State Assemblyman Lloyd Larsen, a Republican who worked with Ellis this year, to pass state law. “What we have heard from our agencies, who have long worked with the tribes, is that they think it would be a tragedy if the ICWA were toppled.”

Arguments that ICWA shows race preference are also misguided, said Kastelic of the National Indian Child Welfare Association.

“There is a political relationship that tribes have with their citizen children,” she said. “Indigenous nations are best placed to inform court decisions on what is in the best interests of their citizens.”

Fort, the Indian legal expert, said state child welfare agencies in regions with large indigenous populations have largely supported ICWA and developed working relationships with indigenous peoples. In some cases, these agencies have called on lawmakers to ensure that these partnerships can continue even if ICWA is struck down.

“ICWA forces states and tribes to work together,” she said. “Just by being close and needing to work together for kids, you end up developing better relationships. At least the status quo would be the preference.”

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