Fearing the state could be caught flat-footed by an impending U.S. Supreme Court decision, Wyoming lawmakers are considering enshrining certain aspects of tribal sovereignty into state law.
The Supreme Court this fall is set to review a case involving the Indian Child Welfare Act and some are concerned the court may overturn the federal law which prioritizes tribes’ rights in child custody cases.
Enacted in 1978, ICWA (pronounced ick-wah by experts in common conversation) created standards for states when handling “child abuse and neglect and adoption cases involving Native children” according to the Bureau of Indian Affairs. The act recognizes tribal jurisdiction in decisions concerning their children. If SCOTUS rules the federal law unconstitutional, each state’s child-welfare laws would hold sway and in states without ICWA laws certain protections would disappear.
The Supreme Court recently weakened a different form of tribal authority when it overturned a prior ruling limiting state prosecutorial powers on tribal lands in Oklahoma v. Castro-Huerta. With that decision in mind, and what it might portend for the ICWA challenge, lawmakers on the Select Committee on Tribal Relations met last Monday to consider, in part, whether they should write ICWA’s protections into state statute.
However, the timing of the court hearing may mean the Supreme Court will rule before any new state law can be enacted. “I’m very worried about it,” said Northern Arapaho Business Council Chairman Jordan Dresser. “This case is very pivotal. And it could potentially harm our Indian children because the purpose of the act is to keep Native children with Native families and to keep that connection with their culture.”
Haaland v. Brackeen
The case at hand, Brackeen v. Haaland, involves Texan foster parents seeking adoption of a Navajo child and custody of the child’s half-sister. The Navajo Nation intervened in the case and attempted to place the child with a tribal family instead, the New York Times reported. The family contends ICWA violates the constitution by considering placement of indigenous children solely based on race.
The protocols outlined in ICWA are based on tribal sovereignty not race, according to proponents of the statute. They also note ICWA followed decades of policies — including the Indian Adoption Project and forced placement of Native children in boarding schools — aimed at disconnecting indigenous children from their communities and culture.
“I tie it back to the Indian boarding schools,” said Dresser. “Where children were taken from their homes and forced to go to school at a place far away, and they got stripped of their cultural identity.”
He says revoking ICWA could have the same effect. “We want our children in safe homes,” Dresser said. “But we want them to have a connection to who they are as Native people.”
Other states have already enacted their own ICWA laws, meaning even if the federal statute is struck down custody cases involving tribes and Native children would likely still be subject to the same protections.
New Mexico passed a state ICWA law this year which not only cemented existing federal protections, but closed gaps by adding provisions like requiring that tribes are notified within 24 hours, as reported by Source New Mexico.
In 2021 Oregon passed a similar statute described by the state’s Department of Human Services in a press release
as strengthening “Oregon’s commitment to working with tribal nations to preserve tribal families.”
During the Select Committee on Tribal Relations interim committee meeting on Aug. 29 Clare Johnson, lawyer for the Northern Arapaho, explained the importance of the federal law to tribes in Wyoming, noting she was dealing with 62 child welfare cases at the time of the hearing.
“The Northern Arapaho tribe strongly believes in bringing these cases back to tribal court to attempt to reunify the child with their family,” Johnson said. “And if that’s not possible, to place them with other members of their family or their tribe.”
Kathryn Fort, a professor at Michigan State University specializing in Indian Child Welfare Act cases, is representing the four intervening tribes in the Haaland v. Brackeen case. Fort gave a presentation on the history of the child welfare law to the committee and explained how other states passed their own statutes.
“What we know today is that while ICWA works, we still see a disproportionate number of Native children being removed from their homes than non-Native children,” Fort said.
Legislators voiced interest in further researching state laws building off the federal statute, or creating a “trigger” bill (similar to the mechanism used when the state proactively banned abortion) which would temporarily put a halt to any major changes the Supreme Court decision could bring.
Sen. Affie Ellis (R-Cheyenne), an attorney and one of two Native Americans serving in the Wyoming Legislature, noted the difficulty of passing state ICWA laws. “I don’t see this being a fast moving endeavor if we’re going to do it right,” Ellis said.