North Dakota Law

Updates from the University of North Dakota School of Law.

Professor Lewerenz is quoted: LOCALIZE IT: States seek safeguards for tribal child welfare

Via AP news wire

Tuesday 07 February 2023

A handful of U.S. states are considering legislation this year to include provisions of the Indian Child Welfare Act in state law as the U.S. Supreme Court considers whether the federal law is constitutional. At least 10 states already have done so.

The act requires states to notify Native American tribes when children who are enrolled or could be enrolled in a federally recognized tribe are removed from their families due to allegations of abuse or neglect; to seek placement with the child’s extended family, members of the child’s tribe or other Native American families whenever possible; and to provide services to help the family move toward reunification.

The efforts in MontanaWyoming, Utah and North Dakota come as the Supreme Court weighs challenges to the 1978 law, which was enacted in response to an alarming rate of Native American and Alaska Native children being removed from their homes by public and private agencies.

The justices heard arguments in November and appear likely to leave most of the law in place. The Indian Child Welfare Act, known as ICWA, includes a severability clause, which means parts of it can be struck down while keeping the rest intact.

The high court isn’t expected to rule until this summer.



States push to enshrine protections for tribal children







A measure in South Dakota was voted down this week.



At least 10 states have incorporated aspects of the federal Indian Child Welfare Act into their own laws, according to Turtle Talk, a blog that covers legal issues affecting tribal communities. They are:











Whether these laws will stand depends on what the court decides, particularly if the decision centers on a racial versus a political classification for Native American tribes.

“The states can only treat Indians as a political classification to the extent that the feds can,” said Dan Lewerenz, assistant law professor at the University of North Dakota who is a member of the Iowa Tribe of Kansas and Nebraska.


— Reach out to tribal officials, inter-tribal agencies, community centers for Native Americans in urban areas or tribal liaisons for state agencies to ask whether they know of any tribal members who might be willing to share their experiences with foster care or adoption proceedings. Think about whether a story might best be told through the eyes of the children themselves, the parent or the community.

— Similarly, are there non-Native families who have fostered or adopted Native American children who might share their experiences? How do they seek ways to keep the children connected to their Native culture?

— When ICWA was passed, between 25% and 35% of Native American children were taken from their homes and places mostly with white families. Seek data from state and tribal child welfare agencies to see how things have changed in the decades since. What proportion of state cases involve Native Americans? To what extent does your state comply with ICWA or its own laws?

— Research the ways in which tribes in your area are working to shore up the foster care system in the community. Some tribes have held recruiting events to encourage people to foster children and help them navigate the system. How have tribes in your area bolstered resources for Indian Child Welfare Act cases?

The Indian Child Welfare Act has long been championed by tribal leaders as a means to preserving their families, traditions and cultures. The law requires states to notify tribes in certain foster care and adoption proceedings involving Native American children who are or could be enrolled in any of the 574 federally recognized tribes.

Placement preference is given to the child’s extended family, members of the child’s tribe or other Native American families, but it doesn’t prevent placement with non-Native families.

The lead plaintiffs in the lawsuit challenging the federal law are Chad and Jennifer Brackeen, a Texas couple who have adopted a Native American boy and are seeking to adopt his sibling — a proceeding that’s happening outside the U.S. Supreme Court case.

The Brackeens and other plaintiffs contend the Indian Child Welfare Act is race-based, doesn’t consider the best interests of children and unlawfully imposes duties on states.

Native American tribes are politically sovereign nations, meaning they govern themselves. A vast majority of federally recognized tribes asked the Supreme Court to uphold the law. They fear widespread impacts to other federal laws that pertain to health care for Native Americans, tribal gambling operations and public education for Native students if the justices dismantle tribes’ political relationship with the U.S. government.

Read the original release