A legislative working group is considering ways to improve a law aimed at keeping Indigenous children connected to their families, communities and cultures despite custody disputes.
The Indian Child Welfare Act of 1978, which established federal standards for child custody procedures for children from recognized tribes, was recently upheld by the US Supreme Court ruling in Haaland v. Brackeen.
Not sure how it would rule, the Wyoming Supreme Court enacted a mirror version of the federal law during the 2023 session in the event federal protections were removed.
This state law is scheduled to expire in 2027, so lawmakers formed a working group to consider more permanent solutions. The panel met publicly for the first time on July 12. With federal law now on firm footing, the committee instead focused on filling legal loopholes that still result in children entering state or other out-of-tribe custody. The panel also considered improvements that had been successful in other states.
Juvenile delinquency and other cases of state custody
Before Congress passed the Indian Child Welfare Act, more than a third of Indigenous children were evicted from their homes and placed in non-Indian homes or institutional settings. To put an end to this systemic disruption of Native American families, the law has given tribes a higher priority when an Indigenous child is involved in custody proceedings involving welfare issues such as adoption, abuse and neglect.
Put simply, it established a priority for the placement of children first with a member of an Indigenous child’s extended family. If that is not an option, the child would next go to another member of their tribe, or if that is not possible, to another tribe.
To achieve this goal, the law requires that the agency dealing with proceedings such as defaults must notify the offending tribe so that its members can either participate or refer the case to their tribal court.
Currently, federal law applies only in cases of adoption, abuse, or neglect. For most of the session, the panel debated a provision in state law that also prioritizes cases of juvenile delinquency by the family and indigenous people.
This provision requires that tribes be informed of criminal proceedings involving their children in the event that they refer the matter to their tribal courts or wish to have a say in the proceedings. Federal law does not provide for such requirements.
That inconsistency resulted from an oversight in the drafting of the law and should be eliminated, said Korin Schmidt, director of the Wyoming Department of Family Services and a member of the panel.
“We think it was just a matter of speed, how fast this all happened,” Schmidt said.
However, other members of the task force believe their involvement can increase the tribe’s say in all matters of state custody.
Crime leading to juvenile incarceration is no small problem in Wyoming, as the state has one of the highest juvenile incarceration rates in the country.
A 2019 census found that Indigenous children in Wyoming were more likely to be incarcerated than children of other ethnic or racial groups — and four times more likely than their white peers.
Some of the juvenile placements can last for years, so the desire for tribal oversight makes sense, said task force vice chair Rep. LLoyd Larsen (R-Lander).
Fremont County and Hot Springs, home of the Wind River Reservation, already have a blueprint for tribal involvement in crime cases, where special treaties allow for close cooperation between tribal governments and county courts.
In both counties, all child welfare cases are referred directly to the Northern Arapaho or Eastern Shoshone Family Services Departments and not to the state agency.
In addition, juvenile delinquency cases can then also be referred to internal tribal courts if the tribe so requests.
However, this policy does not apply nationwide.
“We have a great working relationship with Fremont County and Hot Springs County, but we need to build on that,” said Karen Returns to War, co-chair of the Northern Arapaho Business Council.
“Hopefully the rest of the counties in the state of Wyoming will follow the same rules and the tribes will have more say in the placement of our children,” Returns to War said.
Rep. LLoyd Larsen (R-Lander), right, advises Jennifer Neely, ICWA state coordinator and Department of Family Services tribal liaison, during the first ICWA working group meeting on July 12, 2023. (Lia Salvatierra/WyoFile)
The issue of state custody of child placements also arises in the case of the Safe Haven Act, which applies when a child is abandoned after birth, said Jennifer Neely, ICWA state coordinator and tribal liaison for the Department of Family Services .
“As we evaluate the ICWA constitution and potential, it is hoped that we might also take this opportunity to improve some of our existing ones [laws] to support it,” Neely said.
The task force did not come to any conclusions at the July 12 meeting, but plans to present proposed changes at the panel’s next meeting.
Other states
Since Congress passed the law more than four decades ago, other states have made their own changes. Wyoming is considering incorporating some of these.
Clare Johnson, attorney for the Northern Arapaho Business Council, suggested adopting two changes made by Washington state. Both would strengthen the skills of tribal lawyers in cases bound by the law.
A proposed change would allow tribes to define conditions for placement in custody that go beyond federal standards, Johnson said, citing the consideration of geography as an example.
She also raised the question of whether tribal attorneys should be allowed to practice across state lines, even if not licensed, for cases involving the law.
“It saves the tribe a lot of money,” Johnson said. “Rather than having to find a local attorney and pay pro hoc fees, I can be licensed solely to represent the tribe on an ICWA case.”
This provision in Washington and Nebraska has enabled Johnson to try such cases there.
Beyond Wyoming
If the task force decides to clarify and strengthen the application of the Indian Child Welfare Act, its decision will extend beyond the Eastern Shoshone and Northern Arapaho tribes to affect all federal tribes represented in the state.
For example, if the state statute’s crime inclusion applies, Wyoming must notify a tribe — say, in Arizona or North Carolina — whose child is being brought before a Wyoming court.
It will be important to streamline the process of notifying tribes in states where the law applies differently, Neely said.
The next meeting of the task force is expected to take place in late August or early September.
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