States Push to Enshrine Protections for Tribal Children

HELENA – Leo Thompson received plenty of love, food and shelter from the non-Native American family who raised them, but missed out on any exposure to their Indigenous culture, heritage, ancestors and community.

“The only time they acknowledged my heritage was when they’d make passive comments like, ‘Oh, you know, you’ve always liked that Native American stuff,'” said Thompson, who lives in Missoula, Montana. “That stuff that they so casually referred to is not casual at all. It’s the practices of my ancestors. It’s the very same culture that’s healed my soul. Reconnecting with my heritage as an adult has been a long and arduous journey.”

Montana is one of a handful U.S. states — along with Wyoming, Utah and North Dakota — considering legislation this year to keep more Native American children from enduring similar experiences by including provisions of the U.S. Indian Child Welfare Act in state law.

The states are driven by concerns that Supreme Court challenges have put the federal law in jeopardy. During a hearing last year, the justices seemed likely to leave in place most of the law that gives preference to Native American families in foster care and adoption proceedings involving Native children. The law also requires child welfare agencies to provide services to help Native families move toward reunification.

Ten other states have similar laws in place, including New Mexico, whose law took effect this year, and they too could be affected, depending on how the justices rule. Most federally recognized tribes want the act upheld, fearing that an adverse ruling could dismantle a whole range of federal laws based on their political relationships with the U.S. government.

Thompson, who uses she/they pronouns, shared their story during a recent legislative hearing on a bill sponsored by Montana Democratic Rep. Jonathan Windy Boy.

The federal Indian Child Welfare Act was passed by Congress in 1978 in response to the alarming rate at which Native American and Alaskan Native children were taken from their homes by public and private agencies. From 1887-1969, Native children were placed in boarding schools that used abusive practices to assimilate them into white society. Many were adopted by non-Native families, often depriving them of their tribal and cultural heritage.

The law has helped change that, but there is still work to do.

In Montana, nearly 11% of all children are Indigenous but they made up 37% of those in foster care in 2021, according to the National Indian Child Welfare Association. About 9% of North Dakota children are Indigenous, but account for 44% of the children in foster care, the association said.

“I have witnessed and experienced the benefits of keeping a child within the care of their family where he stays connected, rooted and knows who he is and where he comes from,” Sharen Kickingwoman, with the ACLU of Montana. testified. “We know from our experiences and research that affirming Indigenous identity, especially for youth, is some of the strongest things you can do to enhance resilience amidst adverse childhood experiences.”

Wyoming’s effort is furthest along, having passed the Senate 20-11. In Utah, tribes and statewide officials support the proposal, yet lawmakers held it in a legislative committee during the final week of January amid questions about whether it was needed yet and despite a request by Navajo Nation leaders to pass it.

Bills in Montana and North Dakota have had committee hearings but no votes, while a South Dakota bill was rejected this week.

One aspect of the case awaiting a Supreme Court ruling argued that the Indian Child Welfare Act amounts to federal overreach, and that such protections should be enacted in state law. Another argument is the act provides race-based protections that violate the equal protection guarantee in the Constitution. Native Americans argue the measure is a government-to-government agreement between the U.S. and sovereign tribal nations that, like the U.S., determine citizenship in ways that aren’t based on race.

No one testified against the proposed policy during a Montana hearing, while supporters testified about the importance of family relationships within tribes.

Kickingwoman, a member of the Gros Ventre and Blackfeet nations, said Native societies are built around kinship. Kickingwoman said she’s been honored to provide guardianship to many of her relatives, including her cousin’s son, who she said by mainstream society’s standards would be considered a distant relative,” but to her is a son.

“A lot of our extended families and friends are close kin in relation to us,” she said. “What may be on paper seen as a second or third cousin really is a brother or sister, maybe a niece or a nephew.”

Keegan Modrano, a policy director with the ACLU of Montana who is Muscogee Creek, also was raised by a non-Native family, and was therefore deprived of being raised with their cultural practices, language or people.

“I can not fully ever completely express the incompleteness I feel living my life,” Modrano told the committee.

“My younger self wants nothing more than a Native father figure in my life. My younger self wants nothing more than a Native mother, for cousins and kin, aunties and uncles,” they said. “I cannot rest and I will fight every day so that no other Indian child feels that loss or experiences child removal or the foster care system.”