Wyoming lawmakers are moving forward with a bill to make the state's version of the federal Indian Child Welfare Act (ICWA) permanent. The state adopted its own iteration a few years ago, when it looked like the federal law might get struck down in court.
Now, the Wyoming Legislature is on track to make that state version permanent by repealing the law’s original 2027 sunset date. The bill to do this was sponsored by the Select Committee on Tribal Relations.
ICWA was passed in 1978, in response to a pattern of a high percentage of Native children being forcibly removed from their families and placed in new families that weren’t connected to their tribal communities. The federal law prioritizes keeping Native American youth with their communities and traditions in adoption and foster care cases.
Back in 2023, the U.S. Supreme Court took on a case called Haaland v. Brackeen, which involved five tribes, the Interior Department, and a white foster couple from Texas in conflict over the adoption of a Native American child.
In the lead-up to Haaland v. Brackeen, Wyoming and many other states adopted their own versions of the act, in case the federal law was ruled unconstitutional and struck down.
But the Supreme Court ultimately ruled to uphold ICWA. Since that ruling, the state’s ICWA Task Force refined the Wyoming version and Gov. Gordon signed two ICWA-related bills into law to reflect those changes in 2024.
Discussion on the Senate floor
Sen. Cale Case (R-Lander) brought the bill to the Senate floor during the second week of this year’s budget session.
“ It's a tough environment. Native children have more obstacles than you might realize and it is a struggle sometimes,” he said. “But having cultural awareness and placement within their own culture has been a good and successful thing.”
Case said that success has been backed up by the Eastern Shoshone Department of Family Services, the Northern Arapaho Department of Family Services and the Wyoming Department of Family Services.
He added that there’s still some lingering questions from the Supreme Court’s ICWA ruling, which justifies repealing the current 2027 sunset date.
“ The Supreme Court decision at the federal level was not wholly determinant,” said Case. “They ruled on some of the issues, but they also said that on some of the issues, the bringers of the lawsuit did not have standing, so those are still out there potentially.”
Case asked colleagues to vote for the bill and said that doing so would “represent a commitment to Wyoming that we stand by the philosophy of placing Indian children with Indian families.”
But Sen. Bob Ide (R-Casper) said he wasn’t a fan of the bill in his response to Case.
“I'm a little bit familiar with that Supreme Court case that you were referencing and there [were] a lot of arguments in there on violating equal protection under the Fifth Amendment, setting a separate class of people,” said Ide. “I would tend to agree with that.”
According to a summary from Pine Tree Legal Assistance, plaintiffs in the Haaland v. Brackeen case argued that ICWA is “race-based and therefore violates equal protection under the Constitution” and that it “violates the anti-commandeering doctrine,” which stems from the Tenth Amendment and prevents the federal government from requiring states to enforce federal law.
The bill to eliminate the sunset date on Wyoming’s version of ICWA passed the Senate with a 29-1-1 vote and passed introduction into the House. It’s been referred to the House Transportation Committee.
