The State Indian Child Welfare Act (ICWA) proposed in HB 209 (2021) may be re-introduced in January 2022. If so, it deserves the attention and support of New Mexico Democrats.
Why might we need a State Indian Child Welfare Act? For the same reason we needed last year to repeal the statute that made it a criminal act for a medical provider to perform an abortion: the grave concern that the conservatively oriented Supreme Court in Washington might overrule Roe v Wade, in which case the previous state law enacting heavy penalties against abortion providers, would have sprung, Lazarus-like, from the grave.
The same might happen with respect to the Nixon-era Indian Child Welfare Act (ICWA), which has been challenged in Brackeen v Haaland, a case brought by the states of Texas, Louisiana, and Indiana and several private parties. The suit alleges that ICWA is unconstitutional because of “racial” preferences (as opposed to recognition of tribal sovereignty and the history of child removal and death).
We in New Mexico are not alone in supporting the maintenance of ICWA; 25 attorneys general, including New Mexico Attorney General Hector Balderas, filed a friend-of-the-court brief in October explaining why ICWA is constitutional. A State ICWA would restate and strengthen in New Mexico law the federal ICWA, which requires that Indian children who cannot remain with their parents because of parental problems or child abuse, be treated in a special manner, involving the tribes to which these families belong, giving precedence to family members and then to other members of the same tribes for fostering or adoption. New Mexico has established an ICWA court for placement of Native American children and the state CYFD has established a tribal affairs unit that focuses on Native American adoptions, among other matters.
The federal law was enacted after recognition by the federal government that Native American children were being removed from their homes and communities at a much higher rate than non-Native children. The intent of Congress under ICWA was to protect the best interests of Native American children and to promote the stability and security of tribes and Native families. The federal bill was passed in order to right a decades-long wrong–a full 25% of Native American children were being removed from their families, and 85% were placed in non-Indian homes.
Native American children, if not among those who had been completely taken away from their families, were often taken away to boarding schools, where they were forbidden to speak their native languages and given inferior quarters, food, and education. As has been revealed recently in the US and in Canada, many of these boarding school children died and were buried in unmarked graves.
Among many other stipulations, state governments under ICWA are required to make every effort to identify children in custody as Native American, and then have 48 hours to inform the appropriate tribal government of the child’s being in custody. The State ICWA court and CYFD tribal unit go a long way towards meeting the needs of Native American children removed from their homes.
A State ICWA would get us further along the way and would be necessary especially if ICWA is struck down by the courts in the Brackeen case.