LEGISLATIVE WATCH WYOMING: Governor Signs Law that Codifies Indian Child Welfare Act Provisions into State Statutes

Northern Arapaho Tribe member calls the law a ‘standard rewrite of the existing ICWA’

March 11, 2023

By Shen Wu Tan

Special to the Wyoming Truth

Gov. Mark Gordon on Thursday signed a law that protects the requirements listed in the Indian Child Welfare Act (ICWA) at a state level ahead of a forthcoming decision from the U.S. Supreme Court about the future of the federal act.

Gov. Mark Gordon, pictured above at a public bill signing last week, signed Senate File 94 or “Federal Indian Child Welfare Act codification,” into law Thursday. (Photo by Michael Smith)

The governor signed Senate Enrolled Act 89, also known as Senate File 94 or “Federal Indian Child Welfare Act codification,” which codifies ICWA into Wyoming statutes and details requirements and procedures for placing Native American children in shelter care or for adoption.

“Both Wyoming tribes have emphasized to the governor the importance of ICWA to tribal children and tribal culture,” Michael Pearlman, the governor’s spokesperson, told the Wyoming Truth. “Out of respect for our fellow Wyoming tribes, the governor supports the drafting of a Wyoming ICWA law given the legal challenges presented in cases currently before the United States Supreme Court. He is also open to collaborating in the proposed longer-term process of studying and drafting a more in-depth Wyoming ICWA law that works for both the state and the tribes…” 

The legislation grants Native American tribes exclusive jurisdiction over custody proceedings involving a child who is a ward of a tribal court or who lives or “is domiciled” 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 reside or isn’t domiciled within 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.  

As stated in the law, the “Indian custodian of an Indian child and the Indian child’s tribe shall have the right to intervene in any state court proceeding for the shelter care placement of, or termination of parental rights, to an Indian child.”  

Sergio Maldonado, a member of the Northern Arapaho Tribe, said about the new law, “It’s a standard rewrite of the existing ICWA, but now Wyoming has attached its name to it….I’m happy that Wyoming is willing to put [its] name behind ICWA, but it also goes further on a national level. It shows other states who have tribal organizations within their boundaries that our children are most important.” 

The law also allows an Indian child, parent or Indian custodian and the Indian child’s tribe to petition a court to “invalidate” an action if the action violates provisions outlined in Wyoming statutes. The measure will be repealed on July 1, 2027. 

While many in the legislature expressed their support for Senate File 94, the bill did encounter opposition from a few Wyoming lawmakers. Some voted against the measure, arguing it gives preference based on race. 

Later this year, the Supreme Court is anticipated to rule on Brackeen v. Haaland, in which several prospective adoptive parents and the state of Texas are challenging ICWA, claiming it violates states’ autonomy in handling cases and creates an unconstitutional racial preference.

ICWA was enacted in 1978 and provides guidance for cases of child abuse, neglect and adoption involving Native American children. The act defines minimum federal standards for the removal of these children and their placement in “homes which will reflect the unique values of Indian culture,” according to the U.S. Department of the Interior.  

Last month, Gordon also signed a law that establishes a state ICWA task force to study the federal act and Wyoming’s and other states’ legislation.

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