ICWA for whom?

JoVonne Wagner

Montana Free Press Indigenous Legislative Fellow for 2023

A legislative conference committee voted against restoring the original language of a bill that would codify the federal Indian Child Welfare Act into state law, as had been requested by the bill’s sponsor, Rep. Jonathan Windy Boy, D-Box Elder.

House Bill 317, which was designed to secure protections for Indigenous children under state care while the federal ICWA is threatened in a Supreme Court case, is moving forward with a contested amendment that would give the law an end date. Another amendment brought by an earlier Senate committee requests removed language in a section of the bill that would help ICWA cases determine if a child belongs to a tribe. 

Windy Boy specifically wanted to remove amendments that implemented the sunset date and to resurrect the section that would define court processes for determining what to do with a child whose Native status is pending. Both sections were altered in an amendment requested by Sen. Dennis Lenz, R-Billings, during a Senate Public Health, Welfare and Safety Committee meeting earlier this month.

Windy Boy said the determination amendment specifically could be seen as a challenge by the state against tribes regarding enrollment and identity. 

“That means Montana is telling the tribes, ‘To heck with your enrollment ordinances that you recognize, Montana is now going to be defining to you who is an Indian child’,” Windy Boy said in a phone interview with Montana Free Press and ICT about the section’s removal.

“That needs to go. It’s not fair for the tribe to not be at the table because they make those determinations through their enrollment certification process,” Windy Boy said during the conference committee. “State of Montana has no business in making that determination of that Indian child.”

The Montana ICWA bill passed the House Human Services Committee and the House floor in February, and was re-referred to the Senate Welfare Committee for further debate. That committee’s vice chair, Lenz, has a similar bill winding its way through the Legislature. It seeks to implement a version of ICWA with similar protections codified for all children in the state. 

Lenz amended the Montana ICWA bill to include a termination date and to state, “The Legislature does not expect (Brackeen v. Haaland) to be the final word on how we deal with Indian child welfare issues or how we seek to provide for all Montana’s children within the child protection system.” 

Lenz, who was in attendance during the conference committee, spoke against Windy Boy’s proposal to restore the bill’s scope. 

“This is a concept that we have to kind of get our head around, is what is it that we are doing? If, if ICWA on a federal level goes away, do we as Montanans just accept ICWA, federal ICWA, and dump it in our law?” he said. 

Lenz’s ICWA for All bill, Senate Bill 328, also passed the House floor earlier this month with a 92-4 vote during the second reading. Windy Boy voted in support of Lenz’s bill, in hopes both versions could coexist. 

“And so that’s why I supported it, because it’s for all kids,” Windy Boy said in an interview earlier in April. “We’re all the same. We’re here for the kids and the children, families and all that.”

Lenz’s Indian Child Welfare Act is now headed to the governor’s office to be signed or vetoed.

Windy Boy’s Montana Indian Child Welfare Act is now headed back to both chambers for further consideration of their reworked amendments.

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https://montanafreepress.org/2023/04/28/competing-child-welfare-acts-face-off-in-montana .