The Supreme Court upheld the Indian Child Welfare Act. Will Utah lawmakers?

SALT LAKE CITY — Tribal nations and allies in Utah, and beyond, applauded Thursday's Supreme Court decision to uphold a federal law that gives them sovereignty over foster care and adoption proceedings involving Native American children.

"To me that was that was a very big win," Navajo Nation President Buu Nygren said, adding that the vote "upholds tribal sovereignty, tribal self-determination and gives us the responsibility to dictate how we should take care of our own kids, makes sure that we can have our own fostering programs and makes sure that we can place Navajo kids within Navajo families, or extended families, so that they can be a lot closer to their culture."

The court voted 7-2 in Haaland v. Brackeen to uphold the 1978 Indian Child Welfare Act, which was passed after the widespread and systemic removal of Native American children from their families and tribes. Congressional reports found that about one-third of all Native children were removed prior to the act's passage, with 85% being placed outside their families and communities — even when fit and willing relatives were available.

Bradley Parry, Northwestern Band of the Shoshone vice chairman, said the ruling was both exciting and a relief. He thanked Utah state officials for siding with tribes on the case, including by filing an amicus brief with 25 other states.

"They really picked up that fight in the federal court with the tribes and really took it forward," Parry said. "Taking on and arguing our points and defending the tribes in their state at a federal level is enormous. I mean, that's what a governor, attorney general and those guys should do. And they did it and we felt that. We felt that they had our backs."

Lt. Gov. Deidre Henderson said the decision "upholds the incalculable value of Native American children to tribal nations in Utah and across the country" and that the state will continue to champion tribal sovereignty.

"The court did not address all of the most difficult issues, but for now we are extremely pleased that our work serves to protect Native American families and protects their heritage," the Utah Attorney General's Office said in a statement.

Supreme Court rejects challenge to Native American child welfare law

The Supreme Court has preserved the system that gives preference to Native American families in foster care and adoption proceedings of Native children. The justices rejected a broad attack from Republican-led states and white families who argued that the system is based on race.

Why hasn't Utah passed state-level protections for Native kids?

Questions remain about whether the court's decision regarding the Indian Child Welfare Act means the fight to codify the same protections in Utah state law is dead in the water.

HB40, a Utah version of the act, did not pass earlier this spring despite widespread support from outside the Legislature, including from all eight of Utah's federally recognized tribes, the lieutenant governor, attorney general's office and Utah Foster Care.

The bill was in limbo for much of the session after it was held up in committee. A last-minute substitute of the bill would have contradicted the federal act and removed a number of provisions that the attorney general's office, tribal leaders and others had spent years crafting.

For example, the substitute would have only applied to children if both their biological parents are enrolled members of a tribe. The federal law applies to children who are members themselves or who are eligible to become members. The substitute also removed a provision that, like federal law, gives other Native families priority for placement when the child's extended family isn't available.

Parry called the changes offensive and said he himself wouldn't have qualified for protections with how lawmakers rewrote the bill. He added tribes were not consulted on those changes and were only made aware of them about 24 hours before lawmakers voted to adopt them into the bill.

"It was the 11th hour and we didn't we didn't know about it," he said. "Anything that happens like that where you feel like you have a deal, and then right at the last second it changes — it's one of those things where it's like, 'Oh, well, we can't really give our opinion on this.' And so you often wonder, was this on purpose?"

"I think there's enough feeling that yeah, we think it was done a little bit underhanded to not give us the appropriate time to respond — but honestly I don't know the legislators' reasons for doing it," he continued.

Corrina Bow, Paiute Indian Tribe of Utah chairwoman, previously called the treatment of the bill an "injustice." "Am I wrong to think that the representatives for Utah represent all of us, all of our people?" she asked during a press conference tribal members held after the bill was tabled.

Rep. Christine Watkins, R-Price, who sponsored HB40, said she didn't anticipate so much pushback on the bill from lawmakers.

Watkins said she thought there were a couple of lawmakers who may have been biased because of their own involvement with adoption and foster care, while others believed the state should have control over foster care for Native kids living off a reservation or that a judge, not tribes, should ultimately determine what is in the best interest of the children.

"I had a couple of representatives say to me, 'Well, we don't do this for Black children, for Asian children for all these others and I had to point out to them that the tribes have their own sovereign nation inside of ours," Watkins said, adding that educating lawmakers on Indian law and tribal sovereignty "could be" necessary. "Some of them have really and truly don't want to know any different — seriously. They have their minds made up and we're not going to change them."

What is the future of Utah legislation on the Indian Child Welfare Act?

Watkins said she does not plan on introducing similar legislation during the next session.

"This is just a load off everybody's shoulders because now everything just continues on. We don't have to have any changes. We don't have to redo something or rethink or write new policy. It just goes right on," she said of the SCOTUS ruling. "We'll see if they (the tribes) decide they want something down the road. I think we're good for the time being — in fact I know we are."

Nygren plans on championing a Utah version of the Indian Child Welfare Act during the 2024 legislative session. He believes state protections will make things easier on the children and ensure all parties are on the same page. Nygren said although the Utah Legislature doesn't have Navajo representation like the Arizona and New Mexico legislatures he also deals with, he is "up for the challenge" of discussing tribal issues like HB40 with Utah lawmakers.

"When it comes back up next year, definitely it's going to be on our part to really continue to educate them on that government-to-government relationship," he said. "I think that if (Watkins) is not planning on doing it, I think it'll be up to us to try to find out who can be our champion next year. I really do appreciate her help this year."

Parry said that although it would be nice to have state-level protections in place for Native children, there is worry about how lawmakers would handle such a law. Ultimately, whether lawmakers decide to pass a state version of the Indian Child Welfare Act is "really neither here nor there," he added.

"If they want to do something to enhance the protection, great. But we don't want a law that they try to write that inhibits this, so we'll be very careful with that," Parry said. "At the end of the day, we have our federal law, which the state has to comply to. I don't know of an instance where a state law could trump federal law. They had a chance to get on board and be like that, but they made the decision not to. If they do it, I hope that they work with us and just do an enhancement."

Heather Tanana — an expert in Indian law, Navajo member and University of Utah professor — said passing a law like HB40 goes beyond just bracing for possible future challenges to the Indian Child Welfare Act. In fact, 14 states have passed similar laws, including a handful prior to the Supreme Court challenge to the Indian Child Welfare Act.

"Passing a law is still important because it should show that our state has a government-to-government relationship with its tribes, that it respects their sovereignty and is listening to what they're asking," Tanana said. "The work on the state one that failed had been going on for years by people who are very engaged in child welfare work in the state. It would be sad to see that suddenly stop just because ICWA was upheld."

Stephanie Benally, Utah Foster Care's Native American specialist, agreed that Utah still needs a state Indian Child Welfare Act. She said there are 103 Native children in foster care but only 15 licensed Native foster homes in Utah. She encouraged parents interested in fostering to contact Utah Foster Care or its tribal foster care program.

"The state ICWA would be codified for Utah to protect Native children and families. Other states understand the importance and Utah would not be the only state to have an ICWA state bill," she said. "There is a Native shortage of foster homes for our Native children in care. Cultural connectivity is important. It is important our Native children stay connected to their cultural and language."

Carl Moore, an Indigenous activist, said Utah must still affirm the Indian Child Welfare Act with its own legislation.

"This would show good faith and moral obligation to the nations of Indigenous people of whose land they occupy," he said. "The only time ICWA should be reconsidered is if the Indigenous nations say so. The issue of ICWA being upheld is one of morality and obligation to the people of whose land and societies the area of the United States rightfully belongs."

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