Montana capitol
Credit: Eliza Wiley / MTFP

A legislative bill that would solidify protections for Native American children in Montana has gained support from the state’s House of Representatives, which approved the bill during its second reading Monday afternoon. 

ICT indian country today
This story also appeared in ICT

The bill received no vocal opposition from state representatives on the floor, passing with a 66-33 vote. 

Next, House Bill 317, which would create the Montana Indian Child Welfare Act, is due for a third reading. If it passes that procedural vote, it will move to the Senate and, pending approval there, to the governor’s desk for consideration. 

The bill would localize the federal Indian Child Welfare Act in the state of Montana. The act, which protects Native American children from being removed from tribal families and communities, is facing a legal challenge in the U.S. Supreme Court that some believe could nullify the federal law. 

If passed, the Montana bill would secure the protections for children, even if the U.S. Supreme Court strikes down the 45-year-old law.

The bill’s sponsor, Rep. Jonathan Windy Boy, D-Box Elder, introduced this bill earlier in the session in an attempt to secure those protections for tribal families and children.

“Some of you probably heard that there is a federal lawsuit that’s in the U.S. Supreme Court right now,” Windy Boy said during his brief bill introduction Monday, citing the case Brackeen v. Haaland. “That may have some ramifications on issues like this.”

The Indian Child Welfare Act was created in 1978. According to the act, states are required to follow a line of succession when placing children who have been removed from their homes. States must first try to place the children with family members, then with a family of the same tribe living on the same reservation, and finally with a Native American family before placing a child in a non-Native home.

Windy Boy’s bill would secure how the state’s welfare proceedings for Native American youths are handled with a priority of keeping Indigenous children close to their families and communities. The act would also prioritize tribal representation at custody proceedings and offer tribal foster home placements.

Chad and Jennifer Brackeen, a non-Native couple in Oklahoma, along with two other foster families in other states, filed the lawsuit challenging ICWA as unconstitutional, arguing that the federal policy is based on racial discrimination against non-Native families seeking to adopt Native children.  

The Supreme Court ruling could pose a threat to tribal sovereignty by taking away tribes’ authority to handle housing placements for tribal children. The Montana Indian Child Welfare Act would reinforce sovereignty protection for Montana’s Native communities. 

David Simmons, director of government affairs and advocacy for the Portland-based National Indian Welfare Association, spoke with Montana Free Press and ICT about states enacting their own ICWA laws. 

Simmons said if a state has laws in place like ICWA, they act as another line of defense in reinforcing protections for Native children.

“State agencies cannot be compelled to meet federal actions and purposes without their agreement,” Simmons said. “So in child welfare, what we see is that when the federal government wants states to do certain things like child welfare, they provide them with funding or the states agree to obligate themselves through their own state policies and laws. So a state ICWA law is another protection.”

If HB 317 is passed, Montana will join 10 other states who have ICWA policies solidified in state law: New Mexico, Iowa, California, Nebraska, Washington, Michigan, Wisconsin, Minnesota, Oregon and Oklahoma. 

Native children make up 31% of Montanas out-of-home foster care placements, according to a state report from 2020. 

The act drew more than two dozen proponents in testimony during its first hearing, and only one opponent, Bruce Spencer. Spencer represented the State Bar of Montana and expressed one main concern with the bill’s details. 

Spencer said one of the bill’s sections would allow for the state to grant tribal representation in court hearings, a power that can only be granted from the Montana Supreme Court.

The bill was amended, revising a section that would allow the state to appoint a tribal representative to legally represent a tribe in court proceedings involving the child. The amended bill will allow for the state to give full faith and credit to tribal involvement in custody proceedings.

“I have strong appreciation for states like Montana who are being proactive and understanding,” said Simmons, of the National Indian Child Welfare Association. “They have a large number of Native children and families who are citizens of the state as well as the tribes in Montana, and this is really a statement for the Legislature to say that they want to move and they want to create their own law and make sure those protections are there regardless.”

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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JoVonne Wagner is a member of the Blackfeet Nation located in Northwestern Montana. She was born and raised on the reservation, where she says she experienced and lived through all the amazing things about her home, but also witnessed all the negative aspects of rez life. Wagner is an alumni of NPR'S Next Generation Radio. JoVonne interned for Buffalo's Fire and she recently graduated from the University of Montana School of Journalism.