Indian Child Welfare Act would protect future generations, advocates say

Mara Silvers and JoVonne Wagner

via Montana Free Press

House Bill 317, sponsored by Rep. Jonathan Windy Boy, D-Box Elder, would create the Montana Indian Child Welfare Act, a policy similar to the federal law known as ICWA that puts guardrails on the removal of Native children from their families and restricts placement of Native children with non-Native families and guardians. The seminal 1978 ICWA was implemented after decades of wrongful child removals from Native families, followed by foster care and adoption placements that disconnected children from their culture, extended family and community. 

Federal ICWA protections could be weakened if the U.S. Supreme Court rules against Native American families and tribal nations in the ongoing court case Brackeen v. Haaland, Windy Boy said Wednesday. If that happens, he said, Native American children and families could again face the devastation of separation from culture and community.

“For too long, a lot of our kids have been lost in one system or another, whether it be this system or through residential schools,” Windy Boy told lawmakers on the House Human Services Committee. “It’s time to wake up and kind of move forward.”

What the law would do

HB 317 would require state and local governments to make “active efforts” to prevent the separation of Native American families in Montana through rehabilitation and services. If a Native American child is placed in foster care or parental rights are terminated, the bill would give priority to placements with extended family members, tribal foster homes, Indian families with similar culture to that of the child’s, or another Indian family in order to support the “best interests” of the child. 

The Montana ICWA would also establish requirements in court proceedings for tribal participation and communication in order to ensure children are placed within their respective tribe or with a relative. The bill would require that every Native American child in the state be appointed a tribal representative to be present for all court proceedings that determine custody rights, foster care placements and other affairs, giving Montana tribes executive jurisdiction over the child’s case. The Montana ICWA would also give respective tribes the authority to approve both Indigenous and non-Indigenous licensed foster homes for the child.

Brooke Baracker-Taylor, a member of the Indian Law section of the Montana State Bar and a descendent of the Turtle Mountain Band of Chippewa Indians who helped draft the bill, told lawmakers Wednesday that the bill is an effort to codify federal ICWA standards and incorporate federal guidance on the law from 2016.

“The Montana Indian Child Welfare Act is a critical piece of legislation to strengthen the coordination between tribes in the state by requiring meaningful consultation to protect and preserve tribal families,” Baracker-Taylor said. “Importantly, ICWA is the floor, meaning that the state is free to pass laws that provide even greater protections for tribes and Indian families.”

Examples of such additional protections, Baracker-Taylor said, include enhanced requirements for notice to tribal nations during all legal proceedings, and the additional option of placing a child with an Indian tribe of similar culture.  

While Native American children are already overrepresented in Montana’s foster care population, making up roughly 31% of out-of-home placements according to a 2020 state report on the foster care system, Baracker-Taylor said ICWA requirements in Montana have helped ensure that children are placed in the best possible settings. In Yellowstone County, home to two of Montana’s specialized ICWA courts, Baracker-Taylor said, Native American children ended up in preferred placements 89% of the time by the end of a court proceeding.

“The Montana statute is a key piece in addressing disproportionality and protecting the long-term best interests of Indian children and their families,” Baracker-Taylor said. “The MICWA will ensure that Indian children, regardless of where they live in Montana or in which court their cases are heard, whether that be a specialty court or not, that they receive reunification services consistent with the gold standard.” 

‘The basis for their identity‘

More than 30 proponents of HB 317 spoke Wednesday to stress the importance of solidifying protections for children and families and create a legal framework to support future generations.  

Dawn Gray, managing attorney for the Blackfeet Tribe and an ICWA expert, said the law would help ensure that children remain connected with their communities and families. 

“That’s the basis for their identity,” Gray said. “Separating that through any state or governmental system creates the roots of the cause of problems within our society, collectively.”

Other proponents included Leo Thompson, a Missoula resident who spoke about their experience growing up in a non-Native household. For years, Thompson said, they didn’t know their tribal heritage because Thompson’s parents “didn’t know and they didn’t think it was important to ask.”

“Reconnecting with my heritage as an adult has been a long and arduous journey, but each day that I practice my people’s beliefs, participate in ceremony, spend time with my community and practice my language, I feel that wound I’ve carried with me since childhood close,” Thompson said.

The bill was also supported by the eight tribal nations in Montana, the ACLU of Montana, the Montana Human Rights Network and other groups. Child and Family Services Division administrator Nikki Grossberg, representing the state health department, appeared as an informational witness but did not speak in support or opposition to the bill.

Bruce Spencer, a lobbyist representing the State Bar of Montana, was the sole registered opponent who spoke before lawmakers Wednesday evening, but said the State Bar does not take issue with the majority of the bill’s content. Rather, he highlighted a section that would admit certain attorneys to practice in state court, a power Spencer said rests solely with the Montana Supreme Court.

“There is an easy solution, and the State Bar pledges to help the proponents with this solution,” Spencer said. “And that is to petition the Supreme Court for a change in the rules to do just what [the bill] suggests.” If that part of the bill is struck, he continued, the State Bar has “no opposition” to the bill.

Windy Boy told Spencer and lawmakers he is open to incorporating friendly amendments to the proposal. Windy Boy and another member of the Montana American Indian Caucus, Rep. Sharon Stewart Peregoy, D-Crow Agency, reiterated their interest in helping the bill work its way through the Legislative process. 

“ICWA was established to protect and ensure that the quality of the life of these children remains good,” Stewart Peregoy said. “And unfortunately, the standards of care that we have been subjected to, the state system, is the reason why we bring this forth. We need to fix the system, that’s why this bill is in place.”

The committee did not vote on the bill Wednesday evening.

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This story is co-published by Montana Free Press and ICT, a news partnership that covers the Montana American Indian Caucus during the state’s 2023 legislative session. Funding is provided in part by the Headwaters Foundation.