Indian Child Welfare Act Task Force Bridging Gap Between Federal, State Laws

By Carrie Haderlie

Special to the Wyoming Truth

Amid national discussions on tribal sovereignty, Wyoming leaders are grappling with a new state law that mirrors the federal Indian Child Welfare Act (ICWA).

On Wednesday, Wyoming’s Indian Child Welfare Act Task Force met for the first time following codification of ICWA law into state statute. Lawmakers created the task force awaiting a Supreme Court ruling in Brackeen v. Haaland, according to Co-Chairman Rep. Lloyd Larsen (R-Lander). Codifying federal law into state statute, he said, would have allowed Wyoming to continue to use ICWA as a baseline if the law had been overturned by the U.S. Supreme Court.

“The Supreme Court did hear it, and they upheld the Indian Child Welfare Act,” Larsen said.

Now the task force must determine if the federal law does enough, or if Wyoming wants to add to it, Larsen said. The task force cannot sponsor potential legislation, but has a year to make recommendations to the governor, the Joint Judiciary Interim Committee and the Select Committee on Tribal Relations.

Anticipating scenarios

Korin Schmidt, Wyoming Department of Family Services (DFS) director and task force member, said Wyoming’s ICWA applies to three categories: child welfare and protection, children in need of supervision and juvenile delinquency.

However, she asked the task force to consider additional direction pertaining to juvenile delinquency cases, which are not addressed under federal ICWA law.

“We think it was a matter of how quickly this came about, but we would like to have a conversation about removing delinquents as part of the ICWA codification of state law,” Schmidt said.

State law currently provides that when a child or minor alleged to have committed a delinquent act is a Native American child, the court “shall comply with the Wyoming Indian Child Welfare Act to the extent that the Wyoming Indian Child Welfare Act applies to the Indian child.” Larsen requested draft legislation from the Legislative Service Office that would delete that language.

“As I understand it, ICWA is really trying to protect the structure of family and parental rights that are granted to a family,” he said. “In a delinquency case, those aren’t impacted.”

However, he continued, if in the process of a hypothetical delinquency hearing, parental rights must be terminated, that would be covered under Wyoming ICWA.

ICWA cases in Wyoming are handled differently from county to county, said Jennifer Neely, DFS ICWA coordinator. A child who comes into custody under a child welfare action in Fremont County is automatically transferred to the Wind River Tribal Court and corresponding tribal DFS offices, she said. Tribal offices manage those cases, making decisions around placement, Neely explained.

“In any other county in the state, if a child comes into custody and meets ICWA criteria, that court and that DFS office goes through the process of notification in working with the tribe to determine what is going to be in the child’s best interest,” she said.

‘For the betterment of the children’

Juvenile delinquency actions in Fremont County and Hot Springs County are not transferred to the Wind River Tribal Court for prosecution, Neely noted, but the Northern Arapahoe or Eastern Shoshone DFS offices have standing with the district court.

“They appear in the district court on behalf of the state-slash-county district who is filing those charges,” Neely explained.

In other Wyoming counties, task force member Kevin Taheri, who was appointed this month to be a circuit court judge in Natrona County, said that juvenile delinquency cases involving Native American children have “no tribal involvement because that [delinquency] wasn’t considered an ICWA case.”

The ultimate goal in most delinquency cases is reunification with the parent, he continued.

However, when it comes to sentencing, Taheri said he understands tribal concern about placement. A fundamental reason behind the federal ICWA law “involved taking children away from Indian families to essentially change their culture,” Taheri said. Sentencing during a juvenile delinquency case, he noted, could include placement at a state facility for “years.”

“I could see why the tribe would want some say in that,” he said, adding that as currently written, state statute is vague and should be clarified.

Former Eastern Shoshone Department of Family Services Director Larry McAdams said juvenile delinquency cases involving tribal members should be transferred to tribal courts.

“Our Shoshone tribe has always looked for the betterment of the children,” he told the task force during public comment. “The delinquency act … wasn’t in the best interest of the children. You’re going to have to be put in jail, removed from your family, possibly terminating parental rights. I do not believe that terminating parental rights by an off-tribal court system is appropriate. I am very much against that.”

The task force also discussed changes to the state’s 2003 Safe Haven law, which Schmidt said allows a parent to surrender their child to law enforcement, a fire department or hospital, effectively relinquishing parental rights. If the parent does not reclaim the child within a two-week waiting period, the child will be put up for adoption.

“However, there are times when a parent is not identified during the surrender, so whether a child falls under ICWA criteria can be difficult to determine,” Schmidt said. “This might be a nice opportunity to make some changes to Safe Haven so there is guidance about when, where and how to start initiating those ICWA steps and processes.”

Sixteen other states currently have their own ICWA laws, said Clare Johnson, a Northern Arapaho tribal attorney and task force member. Some states allow judges to consider tribal preferences beyond ICWA standards in child placement cases. Other states allow tribal attorneys to practice solely on specific ICWA cases, even when that attorney is not licensed in that state.

Wyoming could consider such provisions, Johnson said.

“This is incredibly nice because it saves the tribe a lot of money,” Johnson said. “It just helps, because tribes often have limited resources and having to hire outside counsel to go and intervene in a case can be quite costly.”

The task force will meet again in late August or early September.