Strong support for the MT version of the Indian Child Welfare Act bill

A forthcoming U.S. Supreme Court decision that could overturn a federal law designed to protect the interests and needs of local children who come into contact with child protection services has prompted the Montana Legislature to turn the provisions into state law to consider.

Those who supported the proposal at a hearing on Wednesday said governments had removed Native children from their homes for generations to force assimilation and extermination, citing examples of the sale of Indian children to boarding schools, where recent research Masses have found graves.

“Throughout history, federal and state governments have tried to undermine and threaten the existence of tribes by targeting Indigenous families through the forced separation and assimilation of Indigenous children,” said Sharen Kickingwoman, a member of the Aaniiih and Blackfeet tribes who spoke on behalf of the ACLU of Montana.

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“Since the contact there has been outright assault on children through murder, genocide and the final and systematic codification of termination into law. Attacks on our children were a tool to try to weaken tribal nations and attack our innate sovereignty.”

In 1978, in response to a crisis in which child welfare services across the country were removing native children at remarkably high rates and placing them in culturally inappropriate homes with no ties to a child’s family or tribe, Congress passed the Indian Child Welfare Act. But now proponents fear ICWA could be seriously crippled by a Supreme Court order expected next summer in a Texas case arguing the law gives Natives racial preferences and forces states to make federal laws inappropriate to follow.

This upcoming decision is why Rep. Jonathan Windy Boy, D-Box Elder, told the House Human Services Committee in Wednesday’s hearing that he would introduce House Bill 317 to create a Montana ICWA law.

What does the bill do

The legislation, which received strong support during the two-hour hearing, would generally take the practices already in place and followed under federal ICWA and incorporate them into state law, with some additional provisions aimed at keeping children in appropriate placements. About 10 other states have enacted their own ICWA laws, proponents said.

The bill begins by requiring the state to prevent whenever possible the placement of children in India that is inconsistent with parental rights and tribal interests, and to find placements that preserve a child’s tribal culture when necessary and honor connections.

Described as the minimum that should be done, the bill would require any party seeking out-of-home care for a child to determine whether the child is an indigenous person and what their tribal affiliation is. Once that is established, a tribe must be given the opportunity to take charge of the case. Tribes, parents and other parties must be informed of all actions in a case, which would take Montana’s ICWA a step beyond what is required by federal law.

The bill also mandates that parents have the right to court-appointed counsel if necessary, and ensures that qualified witnesses are involved who can help testify about what placement would be best for a child.

The bill also specifies where children who have been temporarily separated from their parents can be placed in a preferred order, beginning with what is closest to a family situation close to home, a family member, one licensed by their tribe nursing home and then other tribal institutions. If a child is adopted or placed in permanent care, this should start with extended family members, then a family from the same tribe, followed by a family from a culturally similar tribe, or finally another Indian family.

Among other provisions, the bill also requires that any party attempting to remove a child must demonstrate to the court that active efforts have been made to provide remedial care and rehabilitation programs conducted in a manner consistent with the social and cultural Conditions and the way is compatible life of the child’s tribe.

strong support

Patrick Yawakie, speaking on behalf of the Blackfeet tribe, told lawmakers the threat to the ICWA federal law means the bill before them is critical and has significant implications for tribal sovereignty.

“We have relied on ICWA as an opportunity to heal from the destructive past of our children who were removed and displaced from our tribal homes and families, originally in the boarding school era and now in many cases in the foster care system,” Yawakie said. “History has contributed to intergenerational trauma that has plagued our communities. We have seen the impact of the loss of culture and language; physical, behavioral and mental health problems; that contributes to substance abuse and we recognize that child removal has played an important role in these diseases. The importance of keeping our children intact with family and culture is lifelong. “

Dawn Gray, the Blackfeet tribe’s managing attorney, said that as an ICWA attorney in Montana, she saw the real-world impact of these cases. Even with the Supreme Court ruling pending that proponents expect will overturn federal ICWA, Montana “can do it right,” Gray said.

“One of the biggest things I saw was the separation of families, the culture and the identity that is trying to uphold with these kids.[It’s]very heartbreaking when we see them separated from their community and family,” Gray told lawmakers. “These children who ICWA is based on find their identity with their indigenous communities, their families. That is the basis of their identity.”

Speaking on behalf of the Montana ACLU, Keegan Medrano, of Muscogee Creek, shared with the committee how he was raised in a non-Native home.

“As an Indian who was not raised in an Indian family, I cannot fully express the incompleteness I feel in my life. I wasn’t raised in my spiritual and cultural practices, my language, or near my people,” Medrano said. “My younger self wants nothing more than to have a native father figure in my life. My younger self desires nothing more than a native mother, for cousins ​​and relatives, aunts and uncles. I cannot rest and I will fight every day to ensure that no other Indian child feels this loss or experiences the child’s removal or the care system.”

Kelly Driscoll, a public defender in Montana but who told the committee she is testifying in private, works exclusively in family defense and ICWA court in Missoula.

She said the bill would codify the Bureau of Indian Affairs’ 2016 ICWA regulations, which are widely considered best practices for the child safeguarding system, and promote uniformity in the handling of ICWA cases across Montana.

ICWA laws have resulted in a significant drop in the rates of Native children in statewide care, Driscoll told the committee. Speaking to the ICWA court in Missoula, where she practices, Driscoll said 87% of children are placed in preferred placements.

Brooke Baracker-Taylor, a descendant of the Turtle Mountain Band of the Chippewa Indians and the Assistant Attorney General for the Department of Justice’s Child Protection Division since 2016, also testified in her personal capacity. She told lawmakers the expanded notification is an essential part of the bill.

“The expanded notification provisions are critical to the meaningful participation of tribes in all phases of working with the state in seeking family and kinship placements and by suggesting or offering culturally appropriate services and by providing meaningful contributions to a child’s permanence plan,” said Baracker -Taylor said.

Sarah Crawford, the Little Shell Tribe’s assistant attorney general, said the long battle for recent state recognition has made preserving the tribe’s culture all the more important.

“During this struggle, the tribe had to fight to preserve their culture and identity. … The removal of even one child diminishes the tribe’s efforts to stop the assimilation of its members,” Crawford said. “The application of the Montana ICWA to any proceeding involving a Little Shield tribesman is fundamental to protecting the identity of the tribe. … The placement of Native American children in non-Native American foster and adoptive homes undermines the sovereignty of any tribe to protect the children of its citizens.”

Leo Thompson of Missoula said they were placed with a non-native family as children.

“The only time they acknowledged my heritage was when they made passive comments and said things like, ‘Oh, you know, you always liked that Native American stuff.’ But the stuff they referred to so casually is not casual at all. They are the practices of my ancestors. It’s the same culture that healed my soul,” Thompson said. “Reconnecting with my heritage as an adult has been a long and arduous journey, but every day as I practice my people’s beliefs, attend ceremonies, spend time with my community, and practice my language, I feel this wound that I empathize with.” carried close to me since childhood.”

The only opposition to the bill came from a Montana Attorney’s Office lobbyist, who had a technical concern that he indicated could be addressed with an amendment.

The House Human Services Committee did not consider the bill on Wednesday.