During its second reading on Monday afternoon, the legislative bill aimed at strengthening safeguards for Native American children in Montana received endorsement from the state’s House of Representatives.
The bill was met with silence as state representatives on the floor did not voice any opposition, resulting in its passage with a 66-33 vote.
Next, House Bill 317, which would create the Montana Indian Child Welfare Act, is due for a third reading. If it passes that procedural vote, it will move to the Senate and, pending approval there, to the governor’s desk for consideration.
The bill would localize the federal Indian Child Welfare Act in the state of Montana. The act, which protects Native American children from being removed from tribal families and communities, is facing a legal challenge in the U.S. Supreme Court that some believe could nullify the federal law.
In the event that the 45-year-old law is invalidated by the U.S. Supreme Court, the passing of the Montana bill would ensure that the safeguards for children remain intact.
The bill’s sponsor, Rep. Jonathan Windy Boy, D-Box Elder, introduced this bill earlier in the session in an attempt to secure those protections for tribal families and children.
During his brief bill introduction on Monday, Windy Boy referred to the ongoing federal lawsuit in the U.S. Supreme Court, known as Brackeen v. Haaland, stating that some of the audience might be aware of it. He further mentioned that this case could potentially affect matters similar to the one being discussed.
In 1978, the Indian Child Welfare Act was established, mandating that states adhere to a specific hierarchy when it comes to placing children who have been taken out of their homes. The act stipulates that states must prioritize the placement of these children with their immediate family members, followed by families of the same tribe residing on the reservation, and ultimately with Native American families before considering non-Native homes.
Windy Boy’s proposed bill aims to ensure that the state’s welfare procedures for Native American youths prioritize the preservation of familial and community ties. Additionally, the act would emphasize the inclusion of tribal representation in custody proceedings and provide opportunities for tribal foster home placements.
Chad and Jennifer Brackeen, a couple residing in Oklahoma who are not of Native American descent, alongside two additional foster families in different states, have initiated a legal case disputing the constitutionality of ICWA. They assert that this federal policy is founded upon racial bias, specifically targeting non-Native families who wish to adopt Native American children.
Taking away tribes’ authority to handle housing placements for tribal children, the Supreme Court ruling could potentially endanger tribal sovereignty. However, the Montana Indian Child Welfare Act aims to strengthen the protection of sovereignty for Native communities in Montana.
In a conversation with Montana Free Press and ICT, David Simmons, the director of government affairs and advocacy for the National Indian Welfare Association based in Portland, discussed the trend of states creating their own ICWA laws.
Simmons stated that laws such as ICWA function as an additional layer of protection, reinforcing the safeguards for Native children.
According to Simmons, state agencies cannot be forced to comply with federal actions and objectives unless they consent to do so. In the realm of child welfare, it is observed that the federal government either provides funding or the states willingly commit themselves through their own policies and laws when they want states to take certain actions in relation to child welfare. Therefore, implementing an ICWA law at the state level serves as an additional safeguard.
If HB 317 is passed, Montana will join 10 other states who have ICWA policies solidified in state law: New Mexico, Iowa, California, Nebraska, Washington, Michigan, Wisconsin, Minnesota, Oregon and Oklahoma.
Native children make up 31% of Montanas out-of-home foster care placements, according to a state report from 2020.
During its initial hearing, the act received support from over twenty-four proponents who testified, while only one opponent, Bruce Spencer representing the State Bar of Montana, expressed a single concern about the bill’s specifics.
According to Spencer, a section of the bill would enable the state to provide tribal representation in court hearings, a power that can solely be bestowed by the Montana Supreme Court.
The bill underwent an amendment, which modified a section that would enable the state to designate a tribal representative to legally advocate for a tribe during court proceedings related to a child. With the amended bill, the state will recognize and respect tribal involvement in custody proceedings by granting it full faith and credit.
Simmons, from the National Indian Child Welfare Association, expressed deep admiration for proactive and empathetic states like Montana. With a significant population of Native children and families who are both state citizens and members of Montana tribes, the state Legislature’s decision to establish their own laws and ensure adequate protection is a powerful declaration of their commitment to progress and safeguarding these communities.
This story is co-published by Montana Free Press and ICT, a news partnership that covers the Montana American Indian Caucus during the state’s 2023 legislative session. Funding is provided in part by the Headwaters Foundation.
