LEGISLATIVE WATCH WYOMING: Committees Advance Bills to Review, Solidify Indian Child Welfare Act Provisions

Bills would create a task force to review the act, codify ICWA into state law

Jan. 19, 2023

By Shen Wu Tan

Special to the Wyoming Truth

Two committees on Wednesday advanced bills that would lead to the review or codification of provisions outlined in the Indian Child Welfare Act as the federal law faces legal challenges in court.

Sen. Affie Ellis (R-Cheyenne), who co-chaired the select committee on tribal relations last year, testified Wednesday in support of Senate File 94, which codifies the federal Indian Child Welfare Act into state law. (Photo by Michael Smith) 

The House Labor, Health and Social Services Committee voted 8-0 for House Bill 19, which would establish a state Indian Child Welfare Act (ICWA) task force to study the federal act and Wyoming’s and other states’ Indian child welfare laws and protections. The bill also calls on the task force to develop legislative recommendations to integrate protections and procedures of the federal act into state law.

“Certainly, if ICWA is overturned, we are going to need to have some serious conversations about what that means in terms of practice and the relationships between the sovereign and the state and really in regard to other tribes as well,” Korin Schmidt, director of Wyoming Department of Family Services, told the committee.

“If ICWA is not overturned, I do still see some benefit to it because there are nuances to the federal law that we can work through. But I think being able to have a shared understanding between all of the parties, and if necessary, any legislation this is the body that can really deeply look into ICWA.” 

Schmidt estimated that the family services department handles about 30 ICWA cases at any given time. The state family services department currently complies with ICWA through contracts with the Northern Arapaho and Eastern Shoshone Tribes.

The Supreme Court held court proceedings last year in the Brackeen v. Haaland case in which several prospective adoptive parents and the state of Texas are challenging the Indian Child Welfare Act (ICWA). In 1978, Congress passed the law in response to the removal of Native American children from their homes by child welfare agencies and their placement into homes with no tribal connections.

The ICWA provides guidance for cases of child abuse and adoption of Native American children; it also establishes a preference for the children to be placed with extended family members or with Native American foster or adoptive families.

As outlined in the bill, the state task force would consist of a representative from the Wyoming Department of Family Services, a county or prosecuting attorney appointed by the governor, a private attorney who is familiar with family law and ICWA, two people recommended by the Eastern Shoshone Business Council, two individuals recommended by the Northern Arapaho Business Council, two representatives and two senators. 

Travis McNiven testified before the committee Wednesday on behalf of the Northern Arapaho Business Council in favor of House Bill 19.  

“The Northern Arapaho certainly feels there is value, as has been spoken about earlier, in having the task force,” McNiven said. “Also, the timing and amount of work that’s needed is not simple to your question…about keeping it all in house, to just the tribal relations committee. It would take a fair amount of time of the committee’s normal two to three meetings per year. There would be a lot to look at.”

All but one representative on the labor committee voted yes to House Bill 19.

Rep. Ben Hornok (R-Cheyenne), who voted no to the measure, said: “I do see the value of a task force. But my opinion is that we’re just slightly jumping the gun. It seems like this would be very effective after we know what the Supreme Court is going to do.”

Codifying ICWA into state law

Meanwhile, the Senate Labor, Health and Social Services Committee unanimously approved another ICWA-related bill:  Senate File 94 or “Federal Indian Child Welfare Act codification.”

The legislation, sponsored by Sen. Affie Ellis (R-Cheyenne), codifies the federal Indian Child Welfare Act into state law and outlines requirements and procedures for placing Native American children in shelter care or for adoption.

Karen Returns to War is a member of the Northern Arapaho Tribe. She testified Wednesday before the Senate labor, health and social services committee to express her support for Senate File 94. (Courtesy photo via Wyoming legislature's YouTube channel)

“Throughout the 1900s, studies revealed that many native children were being separated from their families, from their parents and their communities by child welfare adoption agencies,” Ellis testified. “Congress passed the Indian Child Welfare Act in 1978 to further stop native children from being separated from their parents, their extended families and their communities.”

State and private agencies removed an estimated 25% to 35% of all Native American children from their families and communities and placed them into non-Native American foster and adoptive homes, according to the Bureau of Indian Affairs. 

The Eastern Shoshone Business Council previously told the Wyoming Truth it supports upholding ICWA, because if the federal act is struck down, it will endanger their sovereignty, culture and existence. However, in the Supreme Court case, the state of Texas and several families seeking to adopt Native American children argue that the Indian Child Welfare Act violates states’ autonomy in handling cases and creates an unconstitutional racial preference.

“If Congress invalidates ICWA based on the political classification discussion, all of federal Indian law will be unraveled,” Ellis continued. “If that happens, then states would be allowed under their authority to provide certain protections, recognizing the sovereign right of tribes to impose their own ICWA laws. So, that’s what this bill intends to do.”

The bill states that a Native American tribe has exclusive jurisdiction over child custody proceedings involving a child who is a ward of a tribal court or who lives within the reservation of the tribe, except where jurisdiction belongs to the state under federal law. For court cases involving a child who doesn’t live on the reservation of its tribe, the state court can transfer jurisdiction of the court proceeding to the respective tribe if there are no objections from the parents, the Native American custodian or the child’s tribe. 

During public testimony, Karen Returns to War from the Northern Arapaho Tribe expressed support for Senate File 94. Her older siblings have children who were adopted out, including her eldest niece who was adopted by a non-native family and raised in Alaska.

“Children are tribal communities’ most valuable resource since the language, culture and traditions that make these communities unique are passed down from generation to generation,” said Returns to War. “That there clearly states every reason why that we need to make sure that our tribal communities, our tribal people continue to surround our own children and have a say in what happens to them.”

The Eastern Shoshone Tribe did not respond to requests for comment on either bill.  

Both bills will head to their respective full chambers for review.

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