Bill to codify Indian Child Welfare Act in state law gets first hearing

A handful of proponents spoke to their personal experiences being raised outside of their Native American culture and the struggle in adulthood to reconnect with their heritage during a hearing on Wednesday at the House Human Services Committee.

Leo Thompson said she was placed with a non-Native family as a child and that her parents knew she had different needs, but didn’t know what they were. She said she didn’t know what tribe she came from for most of her childhood.

“Reconnecting with my heritage as an adult has been a long and arduous journey, but each day that I practice my people’s beliefs, participate in ceremony, spend time with my community and practice my language, I feel that wound I’ve carried with me since childhood close,” she said.

Thompson was one of more than 30 proponents of House Bill 317, which would codify the federal Indian Child Welfare Act (ICWA) in state law. ICWA established standards for removal of Native children at a federal level and proponents noted it as the “gold standard” for child custody proceedings and practices. .

This bill proposal comes as the U.S. Supreme Court considers a case that could decide the fate of the federal ICWA.

The federal legislation passed in 1978 after Congress heard testimony that hundreds of thousands of Native children were taken from their homes by public and private agencies.

Removals of Indigenous children in Montana today happen at a rate four times higher than other children, multiple proponents cited.

Non-Hispanic American Indian children made up 35% of the foster care population in Montana in 2020, according to the Kids Count Data Center.

The bill is sponsored by Rep. Jonathan Windy Boy, D- Rocky Boy, and is supported by all eight tribal nations in Montana and the Montana American Indian caucus.

During questioning, Brooke Baracker-Taylor, an assistant attorney general with the Montana Department of Justice Child Protection Unit, outlined differences between the state legislation and the federal law.

One difference would be a Montana district court can’t stop the jurisdiction of a case changing to tribal court. Under federal ICWA, the court would only allow a change in jurisdiction if there had been a violation of ICWA.

“It recognizes that tribes, as sovereigns, have exclusive tribal jurisdiction and are best situated to make thoughtful decisions about children,” Baracker-Taylor said. “It recognizes that there are various reasons why tribes may not request a transfer of jurisdiction to the tribal court in the beginning stages of the case, even where the state has complied with ICWA.”

Another difference involves an increase in notice requirements at “all stages of the proceeding,” Baracker-Taylor said, adding that the measure “allows for greater tribal participation and collaboration with the state and the department and truly all stakeholders.”

Several proponents said children need to be culturally connected in order for Native traditions to be passed on.

“Our Indigenous youth are not only unique for surviving the policies of harm inflicted upon them for generations,” Alyssa Kelly of the ACLU of Montana said. “They are the future carriers of our language; they are the future caretakers of our culture, and healers. They are our future.”