ICWA provides “additional protections” to Native American families involved in the state’s child welfare system, Michigan State University Indian Law Clinic director Kathryn Fort told Wyoming’s Select Committee on Tribal Relations during a meeting last month in Riverton.
The law was passed in 1978, she explained – at a time when up to 35 percent of all Native American children “had been removed from their home and placed with non-relative(s).”
ICWA has helped improve the situation, Fort said, but the disparity remains.
“We still see a disproportionate number of Native children being removed from their homes,” Fort said. “Native children who first encounter a court are four times as likely to be placed in foster care as their non-Native counterparts in the same hearing.”
That’s despite the “heightened burdens of proof” applied to ICWA cases, requiring states to show “clear and convincing evidence that the continued custody of the child by the parent is likely to result in serious emotional or physical harm to the child,” she said.
Fort noted that 95 percent of all child welfare proceedings involve “issues of chemical dependency, alcohol dependency, or mental health issues – as opposed to a very small percentage of cases actually involving abuse.”
“(In) ICWA cases, we’re talking about making sure that families receive all of the services they need to stay together,” she said.
ICWA also requires states to notify Tribal officials when Native American families become involved in the child welfare system, Fort said.
The Tribe has to “agree … that this is the appropriate action for the state to take, and not some kind of cultural misunderstanding,” she explained.
If a child must be removed from the home, Fort said ICWA prioritizes placement with extended family members or foster guardians that are approved by the Tribe.
In cases where parental rights are permanently terminated, Fort said ICWA also outlines “placement preferences,” beginning with family members and other Tribal members.
“The goal is essentially to make sure the child stays in their community,” she said.”(It’s) the best practice and outcome for all children.”
‘Confusion and instability’
Since ICWA passed more than 40 years ago, child welfare systems have changed “quite dramatically,” Fort said, prompting about 10 states – but not Wyoming – to form their own versions of the law already.
This year’s Supreme Court case offers another reason to draft a state-specific ICWA law, Fort said, predicting that “there’s going to be a lot of confusion one way or the other when this (decision) comes down.”
States with their own ICWA laws in place may be able to “stave off” some of that “confusion and instability,” she said.
She explained that the plaintiffs in the Supreme Court case argue that Congress didn’t have the power to pass ICWA, for three reasons:
1) Congress’ Article 1 power to legislate on behalf of Native people is limited to commerce.
2) ICWA is race-based and therefore “impermissible.”
3) The Tenth Amendment says powers that aren’t outlined in the Constitution are reserved for states.
If the Supreme Court agrees with the first or third arguments, Fort said states with their own ICWA laws may not be affected by the decision.
“State ICWA laws … that exist now (could) continue,” she said.
It’s the race-based argument that has Tribal governments “extremely nervous about this case,” Fort said, since it runs “contrary to about 200 years of precedent and understanding of the political relationship Tribal people have with their Tribal nation (and) the federal government.”
If the Supreme Court upholds the race-based argument, Fort said, “every law that affects Native people and Tribes could become suspect very quickly.”
“I’m just pretending like that’s not going to happen,” she said. “I do think it’s relatively unlikely that the Supreme Court is going to upend … this much federal Indian law. That would be truly very disruptive.”
Wyoming Sen. Affie Ellis, R-Cheyenne, agreed that, if the race-based argument moves forward, “all of us won’t know what to do.”
“There’s going to be massive chaos in the world, of like rewriting federal Indian law,” she said. “(We’d) have to start over.”
Even state-level laws that mimic ICWA might have to be re-written in that situation, Ellis said, wondering whether Wyoming should “wait and see what happens” with the Supreme Court before moving forward with its own version of the law.
Fort suggested the committee start organizing “initial meetings” now, however, pointing out that it “takes longer than most people think” to go through the rule-making process.
Members of the Northern Arapaho Tribe urged timely action as well.
“We are so worried about this,” Northern Arapaho Business Council Member Lee Spoonhunter said. “We’re going to lose our children (to) the system, and we’re not going to find them until they’ve been adopted out. …
“Let’s get started on working on legislation to protect the children of the state.”
At the end of the meeting, the Tribal Relations committee asked state staffers to draft a bill that would create an ICWA task force in Wyoming.
The committee plans to consider the bill draft during its next meeting in October.