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A bill to cement existing federal protections in state law for Native American children, families and tribal nations navigating child welfare proceedings received broad support from Indigenous child welfare advocates during a packed hearing Wednesday at the Montana Legislature. 

ICT indian country today
This story also appeared in ICT

House Bill 317, sponsored by Rep. Jonathan Windy Boy, D-Box Elder, would create the Montana Indian Child Welfare Act, a policy similar to the federal law known as ICWA that puts guardrails on the removal of Native children from their families and restricts placement of Native children with non-Native families and guardians. The seminal 1978 ICWA was implemented after decades of wrongful child removals from Native families, followed by foster care and adoption placements that disconnected children from their culture, extended family and community. 

Federal ICWA protections could be weakened if the U.S. Supreme Court rules against Native American families and tribal nations in the ongoing court case Brackeen v. Haaland, Windy Boy said Wednesday. If that happens, he said, Native American children and families could again face the devastation of separation from culture and community.

Jonathan Windy Boy
Rep. Jonathan Windy Boy, D-Box Elder, presents House Bill 317 to the House Human Services Committee on Feb. 1, 2023.

“For too long, a lot of our kids have been lost in one system or another, whether it be this system or through residential schools,” Windy Boy told lawmakers on the House Human Services Committee. “It’s time to wake up and kind of move forward.”


HB 317 would require state and local governments to make “active efforts” to prevent the separation of Native American families in Montana through rehabilitation and services. If a Native American child is placed in foster care or parental rights are terminated, the bill would give priority to placements with extended family members, tribal foster homes, Indian families with similar culture to that of the child’s, or another Indian family in order to support the “best interests” of the child. 

The Montana ICWA would also establish requirements in court proceedings for tribal participation and communication in order to ensure children are placed within their respective tribe or with a relative. The bill would require that every Native American child in the state be appointed a tribal representative to be present for all court proceedings that determine custody rights, foster care placements and other affairs, giving Montana tribes executive jurisdiction over the child’s case. The Montana ICWA would also give respective tribes the authority to approve both Indigenous and non-Indigenous licensed foster homes for the child.

Brooke Baracker-Taylor, a member of the Indian Law section of the Montana State Bar and a descendent of the Turtle Mountain Band of Chippewa Indians who helped draft the bill, told lawmakers Wednesday that the bill is an effort to codify federal ICWA standards and incorporate federal guidance on the law from 2016.

“The Montana Indian Child Welfare Act is a critical piece of legislation to strengthen the coordination between tribes in the state by requiring meaningful consultation to protect and preserve tribal families,” Baracker-Taylor said. “Importantly, ICWA is the floor, meaning that the state is free to pass laws that provide even greater protections for tribes and Indian families.”


The Indian Child Welfare Act: What it is and what’s at stake

The Indian Child Welfare Act’s preference for placing Native children with Native families is taking center stage in Brackeen v. Haaland, one of four Supreme Court cases on the issue to be heard together, starting today. The law, known as ICWA, includes many other provisions that impact Native families across Indian Country.

Examples of such additional protections, Baracker-Taylor said, include enhanced requirements for notice to tribal nations during all legal proceedings, and the additional option of placing a child with an Indian tribe of similar culture.  

While Native American children are already overrepresented in Montana’s foster care population, making up roughly 31% of out-of-home placements according to a 2020 state report on the foster care system, Baracker-Taylor said ICWA requirements in Montana have helped ensure that children are placed in the best possible settings. In Yellowstone County, home to two of Montana’s specialized ICWA courts, Baracker-Taylor said, Native American children ended up in preferred placements 89% of the time by the end of a court proceeding.

“The Montana statute is a key piece in addressing disproportionality and protecting the long-term best interests of Indian children and their families,” Baracker-Taylor said. “The MICWA will ensure that Indian children, regardless of where they live in Montana or in which court their cases are heard, whether that be a specialty court or not, that they receive reunification services consistent with the gold standard.” 


More than 30 proponents of HB 317 spoke on Wednesday to stress the importance of solidifying protections for children and families and create a legal framework to support future generations.  

Dawn Gray, managing attorney for the Blackfeet Tribe and an ICWA expert, said the law would help ensure that children remain connected with their communities and families. 

“That’s the basis for their identity,” Gray said. “Separating that through any state or governmental system creates the roots of the cause of problems within our society, collectively.”

Other proponents included Leo Thompson, a Missoula resident who spoke about their experience growing up in a non-Native household. For years, Thompson said, they didn’t know their tribal heritage because Thompson’s parents “didn’t know and they didn’t think it was important to ask.”

“Reconnecting with my heritage as an adult has been a long and arduous journey, but each day that I practice my people’s beliefs, participate in ceremony, spend time with my community and practice my language, I feel that wound I’ve carried with me since childhood close,” Thompson said.

The bill was also supported by the eight tribal nations in Montana, the ACLU of Montana, the Montana Human Rights Network and other groups. Child and Family Services Division administrator Nikki Grossberg, representing the state health department, appeared as an informational witness but did not speak in support or opposition to the bill.

Bruce Spencer, a lobbyist representing the State Bar of Montana, was the sole registered opponent who spoke before lawmakers Wednesday evening, but said the State Bar does not take issue with the majority of the bill’s content. Rather, he highlighted a section that would admit certain attorneys to practice in state court, a power Spencer said rests solely with the Montana Supreme Court.

“There is an easy solution, and the State Bar pledges to help the proponents with this solution,” Spencer said. “And that is to petition the Supreme Court for a change in the rules to do just what [the bill] suggests.” If that part of the bill is struck, he continued, the State Bar has “no opposition” to the bill.

“For too long, a lot of our kids have been lost in one system or another, whether it be this system or through residential schools …It’s time to wake up and kind of move forward.”

Rep. Jonathan Windy Boy, D-Box Elder

Windy Boy told Spencer and lawmakers he is open to incorporating friendly amendments to the proposal. Windy Boy and another member of the Montana American Indian Caucus, Rep. Sharon Stewart Peregoy, D-Crow Agency, reiterated their interest in helping the bill work its way through the Legislative process. 

“ICWA was established to protect and ensure that the quality of the life of these children remains good,” Stewart Peregoy said. “And unfortunately, the standards of care that we have been subjected to, the state system, is the reason why we bring this forth. We need to fix the system, that’s why this bill is in place.”

The committee did not vote on the bill Wednesday evening.

This story is co-published by Montana Free Press and ICT, a news partnership that covers the Montana American Indian Caucus during the state’s 2023 legislative session. Funding is provided in part by the Headwaters Foundation.

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Mara writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016.

JoVonne Wagner is MTFP's Indigenous Legislative Fellow for 2023, a position created in collaboration with ICT (formerly Indian Country Today). A member of the Blackfeet Nation and a recent graduate of the University of Montana School of Journalism, JoVonne interned two years with Buffalo’s Fire, an independent online Indigenous news website. JoVonne also recently finished her student-instructor role with the Montana Media Lab — an arm of the UM School of Journalism that aims to educate Indigenous and rural Montana high school students on media literacy and audio storytelling. Contact JoVonne...