Examples of State Legislation Related to Indian Child Welfare
Although the ICWA was upheld by the Supreme Court in 2023, states can do more to solidify or expand on ICWA provisions in their states. Some have passed legislation to solidify tribal sovereignty regarding child welfare proceedings and to coordinate with tribes to support children who are involved with or at risk of being involved with the child welfare system. Maine, for example, passed state ICWA legislation (SP 804) after the Supreme Court released its decision. Similarly, Wyoming’s 2023 Indian Child Welfare Act Task Force met in July 2023 after the decision to discuss how to address Indian sovereignty in child welfare and juvenile delinquency proceedings in their state.
Since 1978, 17 states (California, Colorado, Connecticut, Iowa, Maine, Michigan, Minnesota, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, Washington, Wisconsin and Wyoming) have passed their own state ICWA laws. Some states codified federal guidelines to ensure the provisions would remain in place should the Supreme Court not uphold the ICWA. Similarly, some states have fully adopted federal law, while others have only adopted certain provisions. Other states have expanded on federal ICWA provisions to address agency, court and tribal needs in their state.
For example, New Mexico collaborated with tribal leaders, including members of the New Mexico Tribal Indian Child Welfare Consortium, to develop the Indian Family Protection Act (HB 135, 2022). New Mexico’s Indian Family Protection Act has stricter requirements than those in the ICWA. In New Mexico, courts must notify tribes within 24 hours of any child welfare investigation, and they must provide interpreters for family members if needed. New Mexico also defines qualified expert witnesses and requires the state’s child welfare department to make active efforts to identify qualified expert witnesses. In addition, infants under the age of three months cannot be placed in any home that does not meet the state’s statutory placement preferences, which means that newborns cannot be placed outside of Native homes or homes approved by the child’s tribe. Finally, the state must take steps to ensure that siblings remain together when possible.
Other states have applied federal guidelines to voluntary custodial proceedings rather than only involuntary proceedings. Minnesota requires child-placing agencies or individual petitioner to notify the child’s tribe in all adoptive or pre-adoptive proceedings, including voluntary adoption proceedings (MN SF 667, 2023). In addition, some states have expanded ICWA guidelines to apply to tribes that are not federally recognized. California (CA SB 678, 2006) allows judges to grant non-federally recognized tribes the right to participate in dependency proceedings. Washington requires all petitions to include a statement alleging if there is a reason to know that a child may be an Indian child (WA 1227, 2021).
Additional Examples of Legislative Action
Contracts with States
States also have addressed Native children in their state’s child welfare system outside of state ICWA law. Alaska established the 2017 Tribal Child Welfare Compact between the state’s Department of Health and Social Services and 18 tribal co-signers representing 161 federally recognized tribes. In 2022, Alaska passed legislation codifying the contract (HB 184). Before the bill was passed, the legislature passed HR 7 in 2019 outlining the severe disproportionality of Alaska Native children in the child welfare system, and it urged the governor to fully enter the Alaska Tribal Child Welfare Compact to deliver culturally relevant services to tribes.
Other states have also codified state-tribal contracts, though none are as expansive as Alaska’s. For instance, Colorado, which now has a state ICWA law, updated its placement requirements in 2021 with HB 1151. Before the law went into effect, only county departments or child placing agencies could certify foster homes. HB 1151 allows federally recognized tribes to certify their own foster homes. In 2017, Utah passed SB 91. The legislation ensures Indian tribes’ licensure of foster care homes extends to homes on and off Indian country within the state. It also required Utah’s Division of Child and Family Services to cooperate and share information with Indian tribes.
Supporting Family Bonds and Kinship Care
States have also made efforts to promote sibling and family bonds and kinship care for Native children in the child welfare system. Michigan (SB 540, 2015) provides that the term “sibling” includes the term as defined by an Indian child’s tribal code or custom, and Maine also defines family members according to the law or custom of the Indian child's tribe (ME H 824, 2017). Arizona allows for children placed in unlicensed kinship foster care with an unrelated adult to receive cash assistance, and the assistance program was updated in 2017 to include children who are in the legal custody of a tribal court or tribal child welfare agency (SB 1108). New Mexico allows for tribal customary adoptions, in which a child is under the care and protection of adoptive parents without the termination of rights of the child’s birth parents (NM HM 51, 2019).
States have also incorporated the principles of the ICWA into legislation by strengthening kinship care for all children in the child welfare system. Native children are placed in kinship care less frequently than non-Native children, and they are twice as likely to enter group homes, according to data analyzed by NICWA. Michigan allows people not related by birth, marriage or adoption but have a significant emotional relationship with the child to serve as fictive kin placements (SB 222, 2022). Maine allows grandparents to request the court for reasonable rights of visitation to their grandchildren in foster care (HB 824, 2017). Hawaii (SB 2790, 2018) requires that children in foster care have access to regular visits or contact with their siblings.
Improving Education and Training
Evaluations of ICWA implementation suggest that Native children are less likely than non-Native children to be placed with kin in part due to unreliable state compliance with ICWA requirements. States report complying with the ICWA is difficult because social workers, attorneys and judges lack education and training related to the law. Minnesota (M.S.A. § 260.751) provides training and consultation to county and social services agencies regarding state and federal law related to Indian children. In Minnesota, all guardian ad litems assigned to Native children must receive specific training related to the services available to Native children, their parent(s) and other custodians. Similarly, Nevada requires all agencies that provide child welfare services to train staff regarding ICWA (NV A 444, 2023).
Collaborating with Tribal Leaders
Many states that have developed their own Indian child welfare laws have done so in collaboration with tribal leaders. In addition to codifying the federal law into statute, Wyoming also established the Indian Child Welfare Act Task Force (WY H 19, 2023) to develop legislative recommendations related to ICWA. The task force members will include people appointed by the governor upon the recommendation of the Eastern Shoshone and the Northern Arapaho business councils. Minnesota also collaborated with tribes when it updated its state ICWA law in 2023, and the legislation was sponsored by Native legislators.