When New Mexico’s Democratic Gov. Michelle Lujan Grisham signed the Indian Family Protection Act last month, the historic collaboration between that state and its 23 tribes, nations and pueblos was described as more urgently needed than ever.
“Our culture, traditions and our very lives depend on it,” a promotional video for the New Mexico bill stated.
A case now before the U.S. Supreme Court poses grave challenges to America’s landmark federal law that makes it more difficult for local child welfare agencies to separate Indigenous children from their families and tribes. But as of last month, 10 states including New Mexico have enacted local policies to make sure their residents are protected should the federal law known as ICWA, the Indian Child Welfare Act, be struck down by the high court. The 10 states include several that are home to the largest Indigenous populations within United States borders.
“We’re seeing that the federal law is under attack,” said Sarah Helvey, director of child welfare at the advocacy group Nebraska Appleseed. “One benefit of having a state ICWA statute is that depending on what happens with the federal law and the interpretation of that, we still have our state statute to protect Native families.”
The threat to ICWA
The threat to ICWA is posed by the Brackeen v. Haaland case, which likely won’t be resolved until next year, court-watchers say. The case is brought by the states of Texas, Louisiana and Indiana, and three sets of foster parents who argue that the federal law is unconstitutional and discriminates against them because they are white, violating their equal protection rights. Their lawyers have also argued that states can’t be compelled to enforce federal law.
The original plaintiffs in the case — a Fort Worth, Texas evangelical couple, Jennifer and Chad Brackeen — assert that ICWA unfairly challenged their adoption of a Navajo toddler they’d been fostering. With a high-powered legal team and the backing of conservative think tanks, the case has moved forward even though the couple eventually adopted the boy and sought to adopt a girl identified in court documents as his half sister. The Brackeens are represented by the Gibson, Dunn & Crutcher law firm, which has taken aim at tribal sovereignty in other cases, from the gaming industry to oil access — an indication of the high stakes associated with attacking ICWA.
Opposition to the Brackeen case, whose named defendant is Interior Secretary Deb Haaland, is equally as steadfast. So far 25 states, Washington, D.C., 180 tribes and 35 Native American organizations have filed amicus briefs, arguing that ICWA is not race-based, but based on agreements between tribal nations and the U.S. government, which follow centuries of oppression.
ICWA’s defenders include a coalition of more than two dozen state prosecutors led by California’s Attorney General Rob Bonta. The coalition represents states from Arizona to Iowa to Rhode Island — collectively home to 86% of all federally recognized tribes. In their amicus brief, the attorneys general write that their states disagree on many things, “but we all agree that ICWA is a critical — and constitutional — framework for managing state-tribal relations and for protecting the rights and stability of Indian children, families, and Tribes.”
Although poorly enforced and even more poorly tracked, the 1978 law requires child welfare agencies to go to greater lengths to preserve families before children who are enrolled members of federally recognized tribes — or those eligible for enrollment — can be separated from their parents. Under ICWA, when kids are taken into foster care, their relatives, tribal members and other Native groups must be given preference over non-Native foster homes. The law allows tribal courts to take jurisdiction over foster care cases from state courts, providing Indigenous communities the opportunity to decide the fate of their children and keep them close to their culture and kin.
ICWA became law as an attempt to combat cultural genocide following the U.S. government’s devastating history of forcibly removing Native children and sending them into boarding schools and the homes of white, Christian adoptive families. But even with its extra layers of protection, according to federal statistics, America’s Indigenous children remain three times more likely to be taken into foster care than white children.
Paramount for the First People
If the federal law is struck down, there could be dire impacts in communities across Indian Country. In the meantime, advocates for Native Americans in states that have buttressed the Indian Child Welfare Act’s protections with local laws say they are feeling grateful — and they urge other states to follow suit.
“With the U.S. Supreme Court agreeing to weigh in on the Brackeen v. Haaland case, the protection of the Indian Child Welfare Act is paramount for the First People of this country,” Navajo Nation President Jonathan Nez announced March 3 upon the passage of New Mexico’s House Bill 135.
The new law affirms and codifies ICWA provisions, but also adds to the New Mexico Children’s Code, requiring the state to make additional efforts for Indian children entering the child welfare system. Those efforts include notifying tribes within 24 hours of any abuse or neglect investigation, providing culturally appropriate family preservation resources and conducting diligent searches to find relative caregivers.
Jacqueline Yalch, president of the New Mexico Tribal Indian Child Welfare Consortium, pointed to other examples: Babies younger than three months cannot be placed outside of Indigenous homes under the new state law. Courts must also consider whether there are alternatives to terminations of parental rights, and whether that outcome would be reflective of tribal customary practices.
In addition, New Mexico now mandates “cultural compacts,” that must be entered into whenever a child is placed for adoption or guardianship with a family that does not include a parent who is a member of the Indian child’s tribe. In those cases, the compacts require documentation of how the child will actively participate in cultural learning and activities.
Through passage of the Indian Family Protection Act, Nez said, “the State of New Mexico has set a great example,” adding, “we pray that other states follow the same path.”
Even with ICWA as the law of the land for 44 years, it has been far from a cure-all for the hardships faced by Indigenous families investigated for child maltreatment. Under federal law, “active efforts” — rather than the lower standard of “reasonable efforts” — must be made by child welfare agencies to prevent tribal family separation. Allison Dunnigan, an assistant professor at the School of Social Work at the University of Georgia described those policies as “our best practices on steroids.”
But there is no tracking of compliance to ensure these amped-up requirements are being met.
What’s more, only 35 of 50 states have federally recognized tribes, and members of non-federally enrolled tribes may be afforded no ICWA protection, Dunnigan noted, unless their state has broadened eligibility through a local law or agreement with a specific tribe.
Ten states protected
California, Oregon, Washington, Iowa, Minnesota, Michigan, Nebraska, New Mexico, Wisconsin and Oklahoma each have laws that codify the federal protections under ICWA and augment them, said David Simmons, director of government affairs and advocacy for the National Indian Child Welfare Association. Simmons added that in addition to those 10 states, many others have references to federal ICWA requirements in their laws, regulations, program guidance or intergovernmental agreements with tribes. Some states also have intergovernmental agreements between their child welfare agencies and one or more tribes, including those that are not recognized by the federal government, he said.
At least eight states with plans enshrined in law go beyond the federal standard by requiring courts to notify tribes in voluntary proceedings, such as private adoptions. Another improvement in many state ICWA plans is more stringent standards for who can serve as a “qualified expert witness,” requiring that when possible those experts have specific knowledge or personal experience of the child’s tribe.
Simmons said such information “helps judges better evaluate the situation before they order an out-of-home removal or even a termination of parental rights.”
California, home to roughly 15% of the nation’s federally recognized tribes, has the highest Native American population of any state — with an estimated 1.4 million people who are Indigenous. In 2006, Republican Gov. Arnold Schwarzenegger signed that state’s version of federal protections into law.
The state laws in California apply to children who are not members of federally recognized tribes, and to those with probate guardianship and not just foster care cases. Cal-ICWA, as it is called, also goes beyond the “active efforts” standards required to place Native children with kin or tribal members, requiring the documentation of those efforts. If a child is placed in a non-Native home, preference must be given to foster families committed to preserving their tribal connections.
Several subsequent laws have also been passed that strengthen Cal-ICWA. They include a 2009 law that allows for tribal adoptions to take place without terminating birth parents’ rights — a more “culturally consistent permanency option,” according to a state-appointed panel of experts.
But despite the strong laws, a 2017 report on ICWA compliance produced for the California Attorney General found that when tribes don’t intervene in cases, the law is rarely followed with fidelity, and that too often the tribes lack the resources to step in.
Poor compliance issues in California included tribes not being notified when their members are involved in child welfare cases, and failure to engage in “active efforts” to prevent removing children from their homes. The report by tribal leaders also found a reluctance to share relevant information with tribes, such as home studies and background checks, hindering their ability to participate meaningfully in the children’s cases and to identify tribal foster homes.
The authors concluded: “Tribal leaders, tribal social workers and tribal attorneys disclosed instances all over the state and at all stages of cases where non-compliance with the ICWA had devastating effects on tribes and tribal families.”
States with far fewer Native Americans have also sought to protect them from the otherwise strict mandates of the foster care system. Claudette Grinnell-Davis — a University of Oklahoma social work assistant professor who has studied the Nebraska Indian Child Welfare Act — said that midwestern state’s laws go into great detail on the “best interests” of children, and what “active efforts” must entail.
Nebraska’s state provisions require social workers to assist Native families “in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s tribe or tribes.” They must assist the child’s extended family members with “culturally appropriate” resources, as well as help with housing, finances and transportation needs. Nebraska’s law requires the “exhaustion of all available tribally appropriate family preservation alternatives” before non-Native foster homes can be sought.
“That’s one of the biggest things about this act in Nebraska, is that it not only spells out what they’re dedicated to, but how they’re dedicated to accomplishing,” Grinnell-Davis said. “They went into exquisite detail.”
A fiscal impact report published in January by the New Mexico Legislature stated the grave stakes foreseen in states that don’t pass local laws to reinforce the role that ICWA has long played.
“If the federal Indian Child Welfare Act were partially or completely invalidated by the courts,” the document states, “Indian children might again be subjected to the much higher rates of removal from their homes and from their cultures that prevailed before the 1978 law was passed.”
This story has been updated to more accurately describe the plaintiffs in the Brackeen v. Haaland case.