Wyoming’s new Indian Child Welfare Act Task Force is weighing whether juvenile delinquency cases should be covered by the state’s new ICWA statute.
The legislation that incorporated ICWA into state law this year included a “generalization” that indicates the statute might apply in juvenile delinquency cases, Wyoming Department of Family Services director Korin Schmidt told the task force during a meeting this month in Riverton.
The federal ICWA law does not apply to juvenile delinquency, she noted, asking the task force to “have a conversation about removing delinquents as part of the ICWA codification (in) state law.”
Wyoming Rep. Lloyd Larsen, R-Lander, pointed out that Tribal juveniles who are involved in delinquency proceedings are protected by ICWA if child custody questions arise as part of the case.
But Eastern Shoshone Business Council Co-Chairwoman Karen Returns to War argued that ICWA should also apply to juvenile delinquency cases in general, because those proceedings can result in the “placement of our children” in detention facilities, for example.
Natrona County Assistant District Attorney Kevin Taheri agreed that “there are placements that can be made” as a result of juvenile delinquency proceedings, so he “can see why the Tribe might want some say in that” – but he also added that the “ultimate goal” in a juvenile delinquency case is “almost always” to reunite the child with the family, so there isn’t necessarily a concern about “termination of parental rights.”
Former Eastern Shoshone DFS director Larry McAdams disagreed on that point later in the meeting, however, noting the similarities that exist between juvenile incarceration – where “the court says, ‘OK you’re going to … be put into (jail) and removed from your family” – and the termination of parental rights.
He added that off-reservation court systems “often times” treat Tribal youth “as second-class – if that – citizens” and sentence them “harshly” as a result.
“Delinquency should be left up to the Tribal court to deal with,” McAdams said. “I think it would be best … for the state, and other states, to transfer jurisdiction to the Tribes on issues that are of concern to us – certainly our children.”
The prospect of jurisdictional transfer “raised a red flag” for Larsen, however, since the juvenile defendants in question are accused of breaking Wyoming laws.
“To suggest that we may possibly defer that to another state to be considered becomes a little wonky,” he said.
Plus, Wyoming Sen. Cale Case, R-Lander, added, prosecutors might start charging more Tribal youth as adults in order to avoid coming under the state’s ICWA provision for juvenile delinquency.
“That would (be) a bad consequence for children,” Case said. “Maybe we’d better not go down this road partly because of that reason.”
There is already a process in place in Fremont and Hot Springs counties to help ensure Tribal officials are informed when Tribal youth become involved in off-reservation juvenile delinquency matters, Eastern Shoshone DFS director Vernalyn Bearing said earlier in the meeting.
Larsen called it a “strong” local partnership that doesn’t necessarily exist in the rest of the state.
“We need to expand that,” Returns to War said, specifically pointing to Natrona and Albany counties, where many Tribal members live and attend school. “(That way) the Tribes will have more say regarding our own children.”
The task force heard four other suggestions this month about ways to enhance Wyoming’s ICWA law.
Two came from Clare Johnson, in-house counsel for the Northern Arapaho Tribe, who recommended:
-allowing state court judges to review Tribal child placement standards in ICWA cases
-allowing out-of-state Tribal attorneys to represent their clients in Wyoming without passing the state bar exam
Two other items came from Wyoming DFS:
-aligning state and federal definitions of “qualified expert”
-clarifying ICWA’s relationship to Wyoming’s Safe Haven Law
Larsen said the task force will meet again in August or September to continue working on all of the proposals that arose this month.