Two “companion” bills that would incorporate federal Indian Child Welfare Act protections into Wyoming law received initial approval during separate legislative committee meetings Wednesday.
Both pieces of proposed legislation were created after the state’s Select Committee on Tribal Relations heard from local Tribal leaders last year about the potential impacts of the U.S. Supreme Court’s pending decision in the case of Brackeen v. Haaland.
Wyoming Rep. Lloyd Larsen, R-Lander, said the case involves a non-Native family that had adopted a Native child and was trying to adopt the child’s sister as well.
Through ICWA, the associated Tribe was able to say, “No, we want this child to go someplace else,” Larsen said.
The non-Native family felt the decision was “not fair,” he said, so they took the case to court, where the federal law could be upheld, overturned, or somehow altered.
“The concern that the Tribal Relations committee has is that ICWA has been the foundation and oversight of child custody hearings for Native Americans (in Wyoming),” Larsen said. “So if that’s overturned, what should we, in Wyoming, then do?”
One option is outlined in Senate File 94, which would codify current ICWA rules into state law.
But Larsen said there are “some nuances in ICWA that respective states need to adjust per their state’s needs.”
That’s why House Bill 19 would create a task force to study the federal law and develop legislative recommendations to “tweak” the rules for Wyoming.
The task force recommendations would be useful even if the Supreme Court doesn’t overturn ICWA, Larsen noted.
“If the court upholds ICWA and nothing changes, it’s still probably appropriate to look at the nuances within the federal law that need to be adjusted,” he said. “There have been a number of requests from the Tribes to say there are some anomalies and gaps in the federal (law) that can be strengthened on the state side, and to have a task force to look at those and identify them and determine if, indeed, we want to adopt them into state statute is still a worthy exercise to have.”
Northern Arapaho Business Council representative Travis McNiven agreed that “there is value” in forming an ICWA task force regardless of the outcome of the Supreme Court case.
“Bringing (interested parties) together to have a single focus would be advantageous,” he said.
Wyoming Department of Family Services director Korin Schmidt shared a similar sentiment.
“If ICWA is not overturned, I do still see some benefit to (a task force),” she said. “Since the 70s … we’ve just complied with the federal law. (But we) never really have had the opportunity to have discussion with the Tribes and with policy makers about what really is the state’s stance on the relationship.”
If ICWA is overturned, she added, the task force would “facilitate” the “serious conversations” the state would need to have about “what that means.”
Kit Wendtland, special counsel for Wyoming Gov. Mark Gordon, also expressed support for the task force, “especially given the pending Supreme Court decision, whatever it might be.”
“It has been made very clear to us by the Tribes that this is something that is central to their identity, to their culture, that’s very important to them,” Wendtland said. “The governor’s office is happy to participate in this task force.”
The House Labor, Health and Social Services Committee passed HB 19 with one legislator voting “no” – Wyoming Rep. Ben Hornok, R-Cheyenne.
Hornok agreed that there is “value” in forming an ICWA task force but thought it would be best to wait until after the Supreme Court makes its decision later this year.
“My opinion is that we’re just slightly jumping the gun,” Hornok said. “We’re maybe one legislative session too early on this one.”
Wyoming Rep. Sarah Penn, R-Lander, said she thought it was “reasonable to go ahead and proceed with a task force at this time,” however, based on “information that I have gleaned in the previous Tribal Relations committee meetings that I have gone back and reviewed.”
“Even if this federal ICWA law is not overturned, there is still interest from the Tribes to have our own state … rules,” she said. “There are a lot of discussions that still need to happen.”
HB 19 will now head to the floor of the Wyoming House of Representatives for further consideration.