New Mexico state lawmakers have sent the governor a bill that would ensure Native American children remain able to maintain close tribal ties if they are placed in foster care. That protection may be at risk on a federal level in a case that the U.S. Supreme Court will take up.
Democratic Gov. Michelle Lujan Grisham has expressed support for New Mexico’s House Bill 135, a similar version of which failed in the Senate last session. It largely mirrors preemptive legislation enacted in other states. New Mexico is home to roughly 10% of the nation’s Native American population, and Native kids are greatly overrepresented in the state’s child welfare system.
Tribal leaders, including Navajo Nation President Jonathan Nez, pressed hard for the bill in the current session. This time it passed both houses easily.
The Indian Family Protection Act is the state’s version of the federal Indian Child Welfare Act, known also as ICWA, which could be struck down as unconstitutional by the U.S. Supreme Court in a case called Brackeen v. Haaland. On Monday, the Supreme Court decided to hear the case, including the argument that ICWA is unconstitutional because it is a race-based law, as opposed to one tied to tribal sovereignty.
If Grisham signs the bill as expected, all the Native American rights in the federal ICWA would survive under the state’s HB 135, even if the Supreme Court invalidates the law. ICWA became law in 1978 to keep Native American children with their tribes and families in recognition of the unique political status of Native American children, and to reverse the separation of Indigenous families.
“It’s always been the position of the Navajo Nation to protect, preserve and restore the harmony and unity of a family,” Nez told Source New Mexico. “ICWA laws have really protected our children, Native American children, to make sure that they’re either with their immediate family, extended family or another family within their tribe, or last resort, another tribe.”
Grisham has until March 9 to sign the bill or it will be pocket vetoed.