Montana ICWA bill clears Senate after heated discussion
A bill that would codify parts of the federal Indian Child Welfare Act into state law passed the Senate on Friday after a contentious discussion on the floor.
Thirty-eight senators voted in support of the bill in the second reading, and 12 were opposed. In the third reading, which also happened Friday, 33 people voted in support and the same 12 senators remained opposed. Because the bill passed the House in a different form, it must first be reconciled before heading to the governor’s desk.
Known as ICWA, the Indian Child Welfare Act determines how Native children are put in foster or adoptive homes, prioritizing family and tribal placements. The federal law was enacted in 1978 in response to decades of state child welfare and private adoption agencies separating Native children from their families.
House Bill 317, which has received strong public support in its committee hearings, comes as the federal ICWA is under threat. The federal Supreme Court in July will issue a ruling on a case that challenges ICWA’s constitutionality. At least 10 other states have codified ICWA into state law, including, most recently, Wyoming. Every tribe in Montana also passed a resolution that supports codifying ICWA into state law.
Brought by Rep. Jonathan Windy Boy, D-Box Elder, HB 317 commits the state to prevent, when possible, out-of-home placements for Native children that are inconsistent with the rights of their parents and the interest of tribes. It prioritizes placements that preserve and honor a child’s tribal culture and connections.
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“This boils down to an issue of states’ rights and its willingness to protect its residents,” [Sen. Jason Small] said, urging his colleagues to support the bill.
Several Republican senators expressed opposition.
Sen. John Fuller, R-Kalispell, said the bill should be “forestalled” until the Supreme Court has made a decision. He said ICWA “might be or very likely is wrong and unconstitutional.” The Supreme Court has not yet issued a ruling on the case, and in 2019, 486 federally recognized tribes and 59 Native organizations filed an amicus brief defending its constitutionality.
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When asked if he was surprised by the discussion on the floor regarding his bill, Windy Boy answered, “A pass is a pass.”