States Pass Bills in Support of the Indian Child Welfare Act of 1978

May 31, 2023 | Insights

While the United States Supreme Court considers whether to uphold the Indian Child Welfare Act (ICWA) in the Haaland v. Brackeen case, a number of State governments have passed laws supporting protections for Native American children in foster care systems and in adoption placement. These enactments at the state level also generally recognize that Indian tribal governments are separate sovereign governments.

The Supreme Court heard the Brackeen case on November 9, 2022.Despite the government-to-government relationship between Indian tribes and the United States, the Supreme Court is considering the constitutionality of ICWA, its validity under the Indian Commerce Clause, and claims that ICWA violates the equal protection clause. The Court’s review of these issues threatens the long-standing political relationship between tribes and the United States.

Meanwhile, state governments are working to uphold and strengthen these long-standing protections for Indian children. The State of Montana recently joined other states, including North Dakota and Wyoming, in passing a state version of ICWA. Actions by Republican legislatures in these states demonstrate that ICWA and its protections are bipartisan.  

The Montana Indian Child Welfare Act states that “The legislature recognizes that in possibly no other area of concurrent tribal and state law is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.” The North Dakota law requires affirmative actions “intended primarily to maintain or reunite an Indian child with the Indian child’s family” and recognizes the “full faith and credit” of related proceedings held by an Indian tribe. Meanwhile, the Wyoming law codified the federal ICWA into state law.

In addition to the states that have passed laws supporting ICWA, twenty-six states and the District of Columbia joined briefs in support of ICWA before the Supreme Court. ICWA is also broadly supported by child welfare and adoption organizations.

Patterson Earnhart Real Bird & Wilson LLP is dedicated to the representation of American Indian tribes, tribal entities, and individual Indians across the United States. Our mission is to support and advance the sovereignty, self-sufficiency, and self-governance of our tribal clients. To learn more about how we can assist your tribe, contact our Colorado office at (303) 926-5292.