Here is the bill: HB0317
There has been a lot of wrangling on this one, but in the end this bill has the protections of ICWA as well as incorporating language from the federal regulations.
And just for the record, the Montana Legislature is currently run by a Republican super majority, as is Wyoming and North Dakota, all of which have now passed state ICWA bills. ICWA is a bipartisan law.
Here is a link to the legislative page. The downloaded bill is on the Turtle Talk State ICWA Law Page.
Press coverage here:
Lawmakers voted nearly unanimously this week to pass House Bill 1536, which would weld the crux of the federal Indian Child Welfare Act (ICWA) onto North Dakota’s law books. The bipartisan legislation now goes to Gov. Doug Burgum, whose spokesman did not immediately respond to a request for comment.
This week both Minnesota and Wyoming adopted new state ICWA laws.
After nearly a year of dedicated work by stakeholders, including tremendous tribal leadership, Minnesota updated the Minnesota Indian Family Preservation Act.
Minnesota-2023-SF667-Engrossed
In addition, due to tremendous tribal leadership, the state of Wyoming adopted the entire federal ICWA into state law, creating the Wyoming Indian Child Welfare Act. This act was signed into law by the governor yesterday.
I’m getting a lot of calls and emails about state ICWA laws in light of the pending Brackeen case. A good state ICWA law that is specific to the state practices (see Oregon ICWA law or MIFPA as an example) can take months to complete, especially to ensure participation by all stakeholders, including tribal, parental, and state interests. Until Brackeen is released, it is very difficult to preemptively legislate, or legislate in a way that protects ICWA from the Court’s ruling. However, for states that have no state ICWA laws, if there is the political will to follow the Wyoming lead of incorporating the entire federal law into state law, this would be beneficial if the Court rules that ICWA violates commandeering concerns (ie. states can’t be forced to follow ICWA because it is federal law commandeering their agencies).
But it is important to remember that the Court can rule in a myriad of ways, there is no way to predict the outcome, and it is entirely possible that states will have to revisit their state laws in light of the decision–even those that replicate ICWA. I particularly like the Wyoming model of also passing a law creating *and funding* a taskforce to develop a state specific ICWA as well.
We keep state ICWA laws here: https://turtletalk.blog/icwa/comprehensive-state-icwa-laws/.
HB 4214 (OICW)
In special session, both houses of the Oregon legislature passed HB 4214 (Oregon Indian Child Welfare) unanimously, the Senate just 10 minutes ago!!
Since April, the California courts of appeal have been wrestling with California’s new law defining “reason to know” from ICWA’s section 1912 and “reason to believe” (state law standard). In addition, the department has been regularly petitioning to make cases reported rather than unreported. Since April with the In re Austin J. case, California courts have been reshaping their very low bar for notice to tribes into a much higher one, with the caveat that the California standard of “reason to believe” does require contact with tribes though not necessarily formal notice. Given California’s outsized role in notice and inquiry ICWA cases, this is a trend that bears watching, with the understanding this is based on California state law, and not the federal ICWA.
Here is In re M.W., decided on May 11. The Department petitioned for publication on May 15 and it was published on June 5. Under the reason to believe standard, the social worker,
The report documented the social worker’s contact with the 12 tribes by telephone, fax, e-mail, and/or mail, the name of the designated agent for each tribe, the dates of attempted contact with each designated agent (all between May 15 and June 4, 2019), and that each tribe was provided with the minor’s “ICWA Family Tree.” As of the date of the report, four of the tribes had confirmed the minor was not an Indian child. As of the July 10, 2019 hearing, six additional tribes had confirmed the minor was not an Indian child, and the two remaining tribes (the Navajo Nation and the White Mountain Apache Tribe) had acknowledged contact but had not yet provided a definitive response.
I am curious to know how out of state tribes are feeling this system is working, given that while California may change its ways, tribes are generally set up to receive the paperwork to confirm a family’s tribal membership, and we already know that informal phone calls to confirm or deny a child’s eligibility can be problematic. Early outreach is great, if it works to give tribes MORE information and not less.
We’ve updated and cleaned up the ICWA Appellate Page. We’ve also added the eight comprehensive state ICWA laws to the page.
A link to the page is now available at the top of Turtle Talk in the menu, and the address is http://www.turtletalk.wordpress.com/icwa
Here.
This is a tough case of intergenerational removal. The Nebraska Supreme Court finds that both ICWA and NICWA apply to non-Indian parents of Indian children as defined by the statutes. The Court also found that NICWA’s different language in its active efforts provision, which requires active efforts not just to prevent the break up of the family, but to unite the parent with the Indian child, means the Baby Girl holding does not apply to that provision of state law. However, where NICWA’s language is the same as ICWA’s regarding “continued custody” in the termination of parental rights section, the Baby Girl holding does apply, and there is no need to find the continued custody of the child will result in serious physical or emotional damage, where the parent hasn’t had custody of the child.
While the new federal Regulations, which go into effect next week, are useful for tribes and Native families, state ICWA laws continue to hold the most promise for enforcement of the law in the courts. If your state is contemplating drafting one (either through a tribal-state workgroup, Court Improvement Program, or other mechanism), there are resources and people available to provide research and assistance.
Here.
The Court found the active efforts provision applied to the termination of father’s parental rights in a step-parent adoption, despite the father being non-Indian. In addition, the court found active efforts applied despite Adoptive Couple v. Baby Girl, not only because the facts were different, but also because of the Washington state ICWA statute.
Turtle Talk 