As the future of the federal Indian Child Welfare Act is debated in the U.S. Supreme Court, Wyoming stands poised to enshrine its protections for Native families in state law. At least 11 other states have codified ICWA-like protections so far.
A group of state lawmakers have proposed legislation and shared it with local tribal leaders for feedback, the Casper Star-Tribune reports. State Sen. Affie Ellis, co-chair of the committee working on the issue, said the goal was to codify ICWA in Wyoming —”or something better than what the feds have done” — ahead of the Supreme Court’s ruling on the federal law, which is expected this spring.
Just under 5% of Wyoming’s population — 27,480 people — identifies as having American Indian or Alaska Native heritage, according to Census data.
The challenge to ICWA comes from the Brackeen vs. Haaland case, which originated with a white Fort Worth, Texas couple who said the law made it harder for them to adopt a Navajo child they’d been fostering. The law, passed in 1978, was designed to preserve Native families in the wake of the country’s long and harrowing history of forced assimilation through boarding schools and adopting Native children out to white families. ICWA requires state child welfare agencies to make “active efforts” to avoid removing Native children into foster care, and prioritizing placement with relatives or tribe members when they are taken from their families.
The plaintiffs in Brackeen vs. Haaland, which include foster parents from Louisiana and Indiana in addition to the Brackeens from Fort Worth, say that ICWA is unconstitutional and discriminatory against them for being white. Some defenders of ICWA say the attack on the bedrock law is an attempt to chip away at tribal sovereignty in order to challenge other Native rights that could be lucrative for other groups if overturned. The Brackeens are represented by Gibson, Dunn & Crutcher law firm, which has also pushed back on tribal sovereignty in cases involving gaming laws and oil access.
Dozens of states and hundreds of tribes and Native American organizations have filed amicus briefs in support of the 45-year-old federal law, arguing that it is based on the political standing, and sovereignty, of tribes and tribal members, not race-based. So far, at least 11 other states have codified ICWA’s protections into law: California, Oregon, Washington, Iowa, Minnesota, Michigan, Nebraska, New Mexico, Wisconsin, Oklahoma and Connecticut.
Following New Mexico’s passage of its ICWA law last year, one tribal leader made clear how critical such state-level actions are: “the protection of the Indian Child Welfare Act is paramount for the First People of this country,” Navajo Nation President Jonathan Nez said in a statement.
Wyoming’s legislature in October passed a bill that created a task force to study ICWA and other states’ approaches to folding the act’s protections for Indigenous children into state statute. Some lawmakers are concerned that passing a bill before the high court rules on the case would leave their new law vulnerable to challenges. But tribal leaders worry that failing to act quickly would strip the Indigenous community of key protections of their sovereignty.
The state ICWA bill proposed by the task force will be decided upon during Wyoming’s upcoming legislative session, which begins tomorrow.