The state’s Indian Child Welfare Act Task Force met for the first time in Riverton to discuss next steps after the U.S. Supreme Court upheld the 1978 federal law earlier this summer.
In June, the Supreme Court affirmed the constitutionality of the Indian Child Welfare Act (ICWA) with a 7-2 vote in the Haaland v. Brackeen case. The law aims to keep Native American adoptees with their tribes and traditions – many Indigenous communities, organizations and politicians celebrated the decision as a victory for federal Indian law and tribal sovereignty.
Prior to the Supreme Court’s decision in June, the Wyoming legislature codified a version of ICWA into state statute. The codification ensured that the state of Wyoming would continue to abide by ICWA standards regardless of the outcome of the case. Lawmakers also created a twelve-person ICWA task force, which is made up of legislators and tribal, legal, and social services experts.
At the first public ICWA task force meeting on July 12th, Co-Chairman Rep. Lloyd Larsen (R-Lander) said that the group is still faced with a choice in light of the Supreme Court’s decision.
“When we conclude, I think that we will make some motions on whether we make a recommendation that we just stay status quo and comply with the federal law, or if we have some suggestions that might enhance this federal law in our state law to add clarity and ease in the system to deal with parental rights and the placement of Indian children” Larsen said.
The group spent the morning discussing potential updates that could be made to Wyoming’s ICWA law and to other state laws.
The task force has the span of a year to make recommendations to the legislature's Select Committee on Tribal Relations, the Joint Judiciary Interim Committee, and the governor, but does not have the ability to directly bring legislation to the legislative floor.
Clare Johnson, a member of the Cherokee Nation who works as an attorney for the Northern Arapaho Tribe, brought up suggestions to add to Wyoming’s ICWA law based on examples from other states. Sixteen other states currently have their own state-level ICWA laws.
“Under the WICWA law in Washington, they allow a tribe to present our standards for placement of Indian children under tribal law, so that a judge in a court case can use that in addition to the federal placements, because sometimes tribes have a different priority for placement,” Johnson said.
Johnson, who is also a member of the task force, advocated for a provision that would allow judges not barred in a given state to come and act as an attorney specifically for ICWA cases. She said such a change would be a significant financial benefit to tribes.
“Tribes often have limited resources and having to hire outside counsel to go and intervene in a case can be quite costly,” Johnson said.
Later in the meeting, the Wyoming Department of Family Services (DFS) director and task force member Korin Schmidt asked the group to discuss removing language around juvenile delinquency from Wyoming’s current ICWA law.
The state law currently reads that when a Native American minor is alleged to have committed a delinquent act like trespassing or theft, the court “shall comply with the Wyoming Indian Child Welfare Act to the extent that the Wyoming Indian Child Welfare Act applies to the Indian child.”
Schmidt pointed out that the state’s law applies to child protection, children in need of supervision and juvenile delinquency. However, the federal ICWA law does not contain language addressing the third category.
Co-chairman Larsen said that, from his understanding, a delinquency hearing involving a termination of parental rights would still be covered under the state’s ICWA law even if the language around juvenile delinquency was removed.
Kevin Tahiri, a task force member and prosecutor, echoed the need for consistency throughout the state law’s language and said he could “see pros and cons to both ideas.”
“The way I read the state law, it also didn’t define delinquency as part of child custody proceedings. But then you had that language later that kind of muddied it up a little bit, so I just think we need clarification on that one way or another,” Tahiri said.
The task force then discussed the ways in which location can impact the handling of cases.
Wyoming DFS ICWA Coordinator Jennifer Neely said that ICWA cases and juvenile delinquency cases are handled very differently in different counties, based on contracts with the Northern Arapaho and Eastern Shoshone Business Councils.
“If a child comes into custody under a child welfare action in Fremont County, that action is then automatically transferred to the Wind River Tribal Court and the corresponding Tribal DFS Offices,” Neely said.
In contrast, juvenile delinquency actions in Fremont County and Hot Springs County are not transferred to the Wind River Tribal Court for prosecution. However, the Northern Arapaho and Eastern Shoshone DFS offices can still appeal to the district court in these cases.
The task force also discussed potential updates to Wyoming’s current Safe Haven law to streamline its intersections with ICWA. The Safe Haven law was passed in 2003 and allows a parent to surrender their child to a hospital, fire department, or law enforcement. If the parent does not return to reclaim the child after two weeks, their parental rights are relinquished and the child is put up for adoption.
“If there’s any reason to believe that the child could fall under ICWA applications, then we have a requirement to pursue all of the ICWA processes,” Neely said. “This might be a nice opportunity to make some changes to Safe Haven, so that there is some guidance about when, where and how to start initiating those ICWA steps and processes.”
Larry McAdams, who formerly served as the Eastern Shoshone DFS, said he had dealt with several Safe Haven cases in the past and relied on ICWA to help children be safely placed within their tribal community.
“I would appreciate it if you would, in your task force, look favorably on the tribes taking custody of these children when issues like this come up,” McAdams said. “I’m glad you’ve got a task force here.”
After the meeting concluded, task force member Clare Johnson said the day’s discussion was a positive step in the right direction.
“I think the legislature really made history for the state of Wyoming by passing the state ICWA bill and the task force – the task force really gives us such a great opportunity to say ‘What will work for Wyoming?’” she said.
The ICWA Task Force will reconvene in late August or early September to make further recommendations about ways to move forward.
