North Dakota is the latest in a growing list of states considering legislation this year that would create a state version of the federal Indian Child Welfare Act (ICWA).
House Bill 1536 was introduced this month by Rep. Jayme Davis, a citizen of the Turtle Mountain Band of Chippewa, along with a bipartisan group of coauthors.
North Dakota and other states are working to enshrine ICWA’s protections as the decades-old federal law is under threat in the Supreme Court. While introducing the bill to the House Human Services committee, Davis spoke to the urgency of passing the bill to protect North Dakota’s Native people in case ICWA falls, Native News Online reports .
“It’s important for us to keep ICWA law strong and keep this relationship between the states and tribes strong,” Davis said. “This is very, very important to my people, my relatives, our court systems, and our sovereignty.”
ICWA was passed in 1978 to protect Indigenous families from unnecessary separation by child welfare — an attempt to rectify a bleak history where as many as a third of Native children were taken from their families and sent to boarding schools or adopted out to white families. The federal law requires child welfare authorities to make extra efforts to avoid taking Native children into foster care, and to prioritize placing them with family or members of their tribe when they are removed from home.
The threat to the 44-year-old law comes from the Supreme Court case Brackeen v. Haaland, in which three white couples claim the law unconstitutionally discriminates against them as potential adoptive parents on the basis of race. Defenders of the law maintain ICWA’s protections are based on the political standing of tribes and their members, and see it as part of a broader attack on tribal sovereignty.
At least eleven other states have codified ICWA into their lawbooks, and a handful of others are considering similar bills this legislative session, including Nevada, Wyoming and Utah.
A decision in the case is expected this spring.