The Indian Child Welfare Act (ICWA) was passed in 1978 as an effort to curtail the disproportionate numbers of Native children being removed from their parents and placed with white adoptive families or sent to boarding schools designed to assimilate them to white culture. When the law was passed, as many as one-third of Indigenous children were torn from their families and tribal communities by the child welfare system.
The bedrock law requires states to make active efforts to prevent the removal of Native children into foster care, and for those who are taken from their parents, it requires a placement preference be given to extended family members or fellow tribe members. But the recent Supreme Court case Brackeen v. Haaland could lead to a partial or complete overturn of the law.
A decision in the Brackeen v. Haaland case is expected to come this summer. If the statute is deemed unconstitutional, Indigenous families in states without local versions of the law will lose protections aimed at blocking the unnecessary separation of Native families.
While ICWA is a federal law, a dozen states have already moved to bring some or all of the law’s tenets into state child welfare codes. During the current legislative season, several other states have local ICWA laws under consideration. The Imprint has set up this basic state ICWA tracker to update readers on developments.
States That Already Have ICWA-like Laws
Eleven states already had local laws in place prior to Brackeen v. Haaland being heard at the Supreme Court: Alaska, California, Oregon, Washington, Iowa, Minnesota, Michigan, Nebraska, New Mexico, Wisconsin and Oklahoma.
With Colorado joining that list in May, 12 states now have state-level ICWA laws shielding Indigenous children and families from unnecessary separation.
Minnesota strengthened protections in a recent update to its 38-year-old Indian Family Preservation Act.
At least eight of those states’ laws go beyond the federal standard by requiring courts to notify tribes in voluntary proceedings, such as private adoptions. Another addition 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.
New Mexico’s law prohibits infants younger than 3 months from being placed in a non-Native home. New Mexico also now requires “cultural compacts” for any non-Native family taking in an Indigenous foster child that require documentation of how the child will actively participate in cultural learning and activities.
Eighty-two percent of federally recognized tribes in the United States live in those 11 states, according to the Department of the Interior’s database.
With the Supreme Court months away from ruling on a case that could throw out longstanding protections for Indigenous children and families, a new think tank has formed to advance legal and political strategies to protect tribal sovereignty. The California ICWA Institute launched in late February. It will focus on developing and driving statutes to protect tribes’ standing in child welfare proceedings, and bolstering legal arguments against the attack central to Brackeen v. Haaland — that ICWA is race-based and therefore unconstitutional.
In May, Colorado became the first state to enact a state-level ICWA law this legislative session. The new law adopts the language of the federal statute in whole into the state code.
“Now that anti-tribal interests who want to undermine tribal sovereignty have made their way to the Supreme Court, it’s vital that we act immediately to protect Indigenous kids on a state level,” said Senate Majority Leader Dominick Moreno, D-Commerce City, in a press release.
The Montana Indian Child Welfare Act moved one step closer to enactment last week after a committee reconciled differing versions of the bill that had been passed in the House and the Senate, the Independent Record reports.
A key point of contention on House Bill 317 was a Senate amendment adding a termination date that would have the law sunset after two years.
The version advanced by the reconciliation committee maintains the termination date, with members arguing the law should be revisited following the U.S. Supreme Court decision in Brackeen v. Haaland to ensure the state statute aligns with the federal.
An “ICWA for All” bill — which would automatically apply the federal statute’s requirements to all Montana children in child welfare proceedings until their tribal status is confirmed — has also passed the Legislature and is awaiting the governor’s signature.
Las Vegas Democrat Assemblywoman Shea Backus has introduced a bill that would enshrine ICWA’s protections statewide.
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.
Two House bills aimed at codifying parts of ICWA in state law were killed in late February votes. Tribal leaders called the bills’ defeat “deplorable.”
“We’re more than disappointed because our children are relying on this, our families are relying on this, our nations are relying on the ability for us to work with the state,” Oglala Sioux Tribe Vice President Alicia Mousseau told KELOLAND News. “But if the state doesn’t want to work with us, you know, we’ve done that part.”
In lieu of state legislative action, several tribes have begun working together on how to protect families if ICWA falls on a federal level.
An ICWA bill has stalled in committee over lawmakers’ concerns that the legislation could be challenging to implement and that preempting the federal court decision could result in a local law being deemed unconstitutional. But lawmakers have signaled the bill will be reconsidered later in the session.
Wyoming has codified the protections of the Indian Child Welfare Act into state law, joining 11 other states to enact local versions of the bedrock law currently being weighed in the U.S. Supreme Court.
“The passage of this bill is further proof that the importance of ICWA is not a politically divisive issue, but a matter of bipartisan consensus,” said Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Charles Martin, and Oneida Nation Chairman Tehassi Hill in a statement. “From the most conservative states to the most progressive, legislatures and leaders across the country are moving to enshrine the principles of ICWA in their state laws because it works. It works for tribes, it works for families, and above all, it works for children.”