Background
In November of 2022, the United States Supreme Court heard arguments for Haaland vs. Brackeen that challenged the constitutionality of the 1978 Indian Child Welfare Act (ICWA). In June of 2023, the Supreme Court released a verdict that upheld permissibility of the law, explicitly rejecting challenges around states’ ability to enforce the legislation. ICWA maintains that state child welfare agencies must make active efforts to prevent removal and keep Native American families unified, and when necessary, prioritize placing Native American children with their kin, or another Native family. Given these stipulations, and its emphasis on tribal sovereignty, some states and advocates consider ICWA to be the “gold standard” of child welfare policy in prioritizing family preservation.
This HSPAI call discussed the various status of ICWA implementation across states and highlighted opportunities for Governors and state leaders to build on ICWA’s central tenants.
Speakers
- Jack Trope, Senior Director of the Indian Child Welfare Program, Casey Family Programs
- Hannah Diztenberger, Policy Associate, Children and Families Program, National Conference of State Legislatures
Key Takeaways
While the 2023 ruling confirmed Congress’s authority to enact the legislation and rejected the question of if the law interfered with States’ rights (determined that state enforcement did not constitute improper commandeering), the Supreme Court did not deliver a substantial ruling on the legitimacy of the placement preference process, which could open opportunities for other challenges to ICWA in the future.
ICWA is considered the “gold standard” by some child welfare agencies because it prioritizes and compels agencies to go above and beyond to keep children with their immediate or extended families, or with a family that reflects their culture.
Examples of opportunities for Governors to build on ICWA’s central tenants, if that aligns with their priorities:
1. California, Oregon, Washington, Iowa, Minnesota, Montana, Michigan, Nebraska, New Mexico, Oklahoma, Wisconsin, Colorado, Maine, Nevada, North Dakota, and Wyoming codified ICWA into state law:
- Wyoming’s HB0019, signed by Governor Gordon in February 2023, creates an Indian Child Welfare Act Task Force to study ICWA, other states’ Indian child welfare laws, and present a set of recommendations to better incorporate the protections into state law.
- New Mexico’s Indian Family Protection Act (IFPA), signed into law by Governor Lujan Grisham in 2022, requires state agencies to provide notice to tribes within 24 hours of any investigation and prohibits the placement of newborns 0-3 months in non-native homes.
2. Incorporating the tenants of ICWA into state agency process or key legislation, such as by adopting a wider definition of “kin” to allow for extended family placements, or by promoting stronger family preservation practices.
- South Carolina Governor McMaster signed S222 in 2022 that allows people not related by birth, marriage, or adoption but have a significant emotional relationship with the child to serve as “fictive kin” placements.
- Michigan allows for the definition of “extended family members” in foster care placements to reflect the law or custom of an Indian child’s tribe.
3. Facilitating the development of child welfare capacity for tribal children by supporting access to resources and funding streams, like Title IV-E
- The North Dakota Department of Human Services has a formal agreement with four Tribal Nations to allow for the pass through of federal Title IV-E funding to each Tribal Nation, and allows for Nation to retain jurisdiction, care, custody and placement responsibilities of Title IV-E eligible children
4. Explore creating ICWA courts to manage all ICWA cases in a jurisdiction through tribal engagement, child welfare involvement, and family reunification
Questions To Consider As Next Steps
- How does your state fare in implementing ICWA? Where does family preservation rank among priorities within a larger child welfare agenda?
- What bodies and organizations within the state oversee tribal engagement? Where are there spaces where such engagement could be bolstered or strengthened?
