With India’s Child Welfare Act Under Threat, Wyoming Lawmakers Consider Action

Fearing that the state will be caught off guard by an impending U.S. Supreme Court ruling, Wyoming lawmakers are considering enshrining some aspects of tribal sovereignty in state law.

This fall, the Supreme Court is due to hear a case involving India’s Child Welfare Act and some fear the court could overturn federal law that prioritizes tribal rights in child custody cases.

Adopted in 1978, the ICWA (pronounced ick-wah by experts in everyday conversation) created standards for states when dealing with “cases of child abuse, neglect, and adoption involving Indigenous children” . according to the Bureau of Indian Affairs. The law recognizes tribal jurisdiction in decisions about their children. If SCOTUS declares the federal law unconstitutional, each state’s child welfare laws would prevail, and in states without ICWA laws, some protections would disappear.

The Supreme Court recently weakened another form of tribal authority when it reversed an earlier decision limiting state prosecutorial powers over tribal lands in Oklahoma v. Castro Huerta. With that decision in mind and what it might portend for the ICWA challenge, lawmakers from the Tribal Relations Select Committee met last Monday to consider, in part, whether they should enroll the protections. of ICWA into state law.

However, the timing of the court hearing may mean the Supreme Court will rule before new state law can be enacted. “I’m very concerned about this,” said Jordan Dresser, president of the Northern Arapaho Business Council. “This case is very important. And it could potentially harm our Indian children, because the purpose of the law is to keep Indigenous children in Indigenous families and maintain that connection to their culture.

Haaland v. Brackeen

The current case, Brackeen v. Haaland, involves Texas foster parents seeking adoption of a Navajo child and custody of the child’s half-sister. The Navajo Nation intervened in the case and attempted to place the child with a tribal family instead, the New York Times reported. The family argues that the ICWA violates the constitution by considering the placement of Indigenous children solely on the basis of race.

The protocols outlined in the ICWA are based on tribal sovereignty, not race, according to proponents of the statute. They also note that ICWA has followed decades of policies – including the Indian Adoption Project and the forced placement of indigenous children in boarding schools — aimed at disconnecting Aboriginal children from their communities and culture.

“I relate it to residential schools,” Dresser said. “Where children were taken from their homes and forced to go to school in a remote location, and they were stripped of their cultural identity.”

He says revoking the ICWA could have the same effect. “We want our children to be in safe homes,” Dresser said. “But we want them to have a connection to who they are as Indigenous.”

Delayed departure

Other states have already enacted their own ICWA laws, which means that even if the federal law is overturned, custody cases involving tribes and native children would likely still be subject to the same protections.

New Mexico passed state ICWA legislation this year that not only cemented existing federal protections but also closed loopholes by adding provisions such as requiring tribes to be notified within 24 hours, as reported Source New Mexico.

In 2021, Oregon passed a similar law described by the state Department of Human Services in a Press release

as reinforcing “Oregon’s commitment to working with tribal nations to preserve tribal families.”

At the Interim Committee meeting of the Select Committee on Tribal Relations on August 29, Northern Arapaho attorney Clare Johnson explained the importance of the federal law to tribes in Wyoming, noting that it was handling 62 cases of child protection at the time of the hearing. .

“The Northern Arapaho Tribe strongly believes in bringing these cases to tribal court to try to reunite the child with his family,” Johnson said. “And if that’s not possible, place them with other members of their family or tribe.”

Kathryn Fort, a Michigan State University professor specializing in Indian Child Welfare Law cases, represents the four intervening tribes in Haaland v. Brackeen. Fort gave a presentation on the history of child welfare law to the committee and explained how other states have passed their own laws.

“What we know today is that while ICWA is operating, we still see a disproportionate number of Indigenous children being removed from their homes compared to non-Indigenous children,” Fort said.

Lawmakers have expressed interest in further researching state laws building on federal law or creating a “trigger” bill (similar to the mechanism used when the state proactively banned abortion) which would temporarily halt any major changes the Supreme Court ruling may bring. .

Sen. Affie Ellis (R-Cheyenne), a lawyer and one of two Native Americans serving in the Wyoming Legislative Assembly, noted the difficulty of passing state ICWA laws. “I don’t see it as a quick business if we’re going to do it right,” Ellis said.

Martin E. Berry