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SALT LAKE CITY — Utah Attorney General Sean Reyes outspokenly joined a chorus of Utah supporters for the Indian Child Welfare Act, which offers legal protections for Native American children during adoption and foster care processes.
The act, commonly known as ICWA, is currently being contested in the Supreme Court, with challengers arguing ICWA violates the 14th Amendment by racially discriminating against non-Native families during custody proceedings. Utah officials disagree with that argument, according to an op-ed penned by Reyes and Assistant Solicitor General Lance Sorenson titled "Why Utah supports the Indian Child Welfare Act" that appeared in the Deseret News earlier this week.
"The Indian Child Welfare Act does not violate the Equal Protection Clause because tribal identity is not a racial category but a political one. The United States' official relationship with its recognized tribes is one of 'nation-to-nation,' and Utah's relationship with them is one of 'government-to-government,'" Reyes and Sorenson wrote. "The law does not create a preference system based on racial categories; rather, ICWA allows sovereign tribes, as political entities, to forge and maintain relationships with their members, including Native American children."
Reyes and Sorenson highlighted the success of ICWA in Utah since it was enacted in 1978: Native American children in Utah were 1,500 times more likely to be in foster care than non-Native children in 1976, while they were only four times more likely to be in foster care in 2012. Reyes and Sorenson said Native children are also more likely to be placed with extended family members than they were prior to the act.
"In a time when many may be cynical about the ability of governments to work together, the Indian Child Welfare Act has been an example of the state, localities, tribes and federal government coordinating in the interest of Native American children. Utah, for example, has entered into an intergovernmental agreement with the Navajo Nation to ensure cooperation in the implementation of ICWA," the op-ed reads. "Utah is home to diverse tribes whose members are also citizens of our great state. These tribes are entitled to the protections and benefits of the Indian Child Welfare Act. Utah will continue to take a leadership role in defending the law because it is effective and sound, both as a matter of policy and constitutional law."
The op-ed stated that Utah's position on ICWA is partially shaped by Reyes, who is of Native Hawaiian descent, and "who understands the need to preserve Indigenous culture by passing it down, generation to generation" as well as Utah special counsel Larry Echo Hawk, a former Idaho attorney general, county attorney and Bureau of Indian Affairs director of Pawnee heritage.
"But support is not limited to Indigenous leaders alone. Many social workers and child advocates of all backgrounds at the state, county and city level in Utah also tout the act," the op-ed reads.
ICWA appears to have widespread support in Utah, including from the state's eight federally recognized tribes, the Indian Law Section of the Utah State Bar, Lt. Gov. Deidre Henderson, and the Utah Native American Legislative Liaison Committee, which which voted unanimously to introduce a bill to codify ICWA at a state level in the 2023 legislative session. Utah and over 20 other states also submitted a friend of the court brief to the Supreme Court in defense of ICWA.
