Tribal leaders advocate for Indian Child Welfare Act at Utah State legislature
By David Boyle
A bill that would make the Indian Child Welfare Act (ICWA) Utah state law was passed over in committee in late January. What that means for the future of the bill is uncertain, but the lack of action could delay tribal leaders’ top priority in the 2023 Utah State legislative session.
The federal Indian Child Welfare Act went into effect in 1978 following passage by the US Congress. The bill was passed to address a higher-than-normal removal of Indian children from homes to be placed in foster care and adoption programs.
Speaking at the January 26 state House Judiciary Committee Utah meeting, Utah Division of Indian Affairs Director Dustin Jansen reported at the time more than one in three Indian children had been removed from their homes.
The 1978 bill gave tribal government jurisdiction over child placement on reservations and for children located off-reservation priority is given to placement in families, with priority beyond that given to placement to tribal members to keep cultural heritage intact.
The US Supreme Court may be ending federal ICWA. The court heard Haaland v. Brackeen in November 2022. The case is a combination of several cases that challenges the act. With the possibility of the end of the federal act, tribal leaders across the nation have been advocating for state ICWA acts, including here in Utah.
Lance Sorenson, Assistant Attorney General for Utah, spoke in favor of the bill. He noted that there are two major challenges within the current litigation presented to the Supreme Court.
“One is under the Tenth amendment, saying that family laws are usually the state jurisdiction, so why is the federal government involved? State-level legislation takes care of it.”
The other possible grounds for overturning ICWA would be use of the 14th amendment. While Sorenson said it’s difficult to predict what the court would do, he says that ruling would have farther-reaching impacts.
“If they rule on equal protection grounds, they would have to overturn some pretty embedded precedent,” said Sorenson, adding that should a state ICWA law pass and the federal ICWA law be overturned using the 14th amendment, Utah would be willing to defend its version.
HB 40 – which would create ICWA for the state of Utah – was created in the Native American Liaison Committee of the state legislature and sponsored by (Republican) Rep. Christine Watkins of District 67 and is sponsored on the Senate Floor by (R) Sen. David Hinkins of District 26, who represents San Juan County.
The bill has also garnered support from Lt. Governor Deidre Henderson and the Attorney General’s office. The bill also has the support of the eight tribal nations in Utah, including the Navajo Nation and the Ute Mountain Ute Tribe both located in San Juan County.
During the January 26 hearing, the bill saw support from several different individuals and agencies, including the Utah Board of Juvenile Justice, Voices for Utah Children, and Navajo Nation Council Delegate Carl Slater, who noted the council and the Navajo Utah Commission resolutions support the creation of Utah ICWA. Other tribal citizens also spoke favorably of the bill during testimony.
Speaking on the bill, Jansen confirmed that the top priority for ICWA is for the wellbeing of the child, with first emphasis on placing children in homes of families whether that child’s family is native or non-native.
“ICWA doesn’t treat family members that are Indian or non-Indian different from one another. They treat them the same, the first preference is family placement. That’s the deal.
If that family placement can’t be met, the next placement is with a member of the tribe. That may sound odd to a lot of people, but I think if you understand Native culture you’ll come to realize extended family in native culture can be very broad, pretty wide we are a communal culture. We take turns and opportunities to help raise children.”
Jansen explained how in Navajo culture, aunts are referred to as ‘little mothers’. Jansen said even his friends without family relationships called his mother ‘mom’ growing up and she referenced them as ‘sons’.
Speaking in favor of the bill, tribal attorney Paul Tsosie noted that ICWA still leaves the decision with the judicial system.
“Even though there are substantive and procedural protections in this bill, the discretion of the judge is still there. The judge needs to look at the best interest of the child. That discretion is still there, it just makes sure that the law is applied.”
Still, members of the House Judiciary Committee had hesitations to move the bill forward with a favorable recommendation.
Rep. Karianne Lisonbee of Davis County (R) said that while she’s sympathetic to the reasoning of the bill, she’d like to wait to see the result of the Supreme Court case before moving on a Utah ICWA law.
“Until then I’m concerned we might be preemptively making a decision that we don’t fully understand in Utah.”
In response, Watkins said she trusted the work of the Utah Attorney General’s office and tribal leaders and their attorneys to create the bill.
“Regardless of how the Supreme Court decides this case, codifying ICWA ensures Utah is well positioned to continue our coordinated statewide efforts between Utah, tribal government and other political stakeholders to provide care, protection, and emotional support for all American Indian children and their families.”
A motion was made to move on to the next agenda item by (R) Rep. Kera Birkeland representing northeast Utah. Birkeland said she wanted to see questions and concerns addressed.
“I don’t want to see this just dropped, I want to make sure we have the opportunity to get concerns addressed before we move forward and have more opportunity to discuss this if that’s going to help it move forward or get questions answered.”
The motion passed by a vote of 7-5. The vote places the bill in uncertainty, whether the committee will revisit it or not could end the chance to pass HB 40 at this year’s state legislative session.
Tribal leaders came to the state legislature on January 31 to advocate for HB 40 including Ute Mountain Ute Chairman Manuel Heart, and White Mesa representative Malcolm Lehi. The Navajo Nation was represented by President Buu Nygren and first lady Jasmine Blackwater Nygren, as well as Navajo Nation Council speaker Crystalyne Curley, Council delegates Curtis Yanito, Shaandiin Parrish, and other council delegates as well as other Utah tribal members.
“The Navajo Nation’s goal is to continue protecting our children,” said President Nygren in a press conference held at the state capital. “We know we have made significant progress with the state of Utah and we want to see that continue.”
Chairman Heart emphasized keeping children close to their communities.
I’d like to ask the chairman of the judiciary committee to bring HB 40 back onto the agenda this coming Friday so that it can pass and we may protect our children. (...) our children are our most valuable resource.”
Parrish noted that her own family has been impacted by separation from placement outside of native culture. “This is an opportunity for the state of Utah to join hand in hand with tribal governments and support sovereignty.”
Yanito added, “We need our children’s protection today.”