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North Dakota bill seeks to protect Native American adoption rules as court decision looms

A federal law gives preference for foster care and adoption of Native American children to extended family and other tribal members, but the U.S. Supreme Court could overturn the statute.

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North Dakota Rep. Jayme Davis, D-Rolette, testifies before the House Human Services Committee at the state Capitol on Monday, Jan. 23, 2023.
Jeremy Turley / Forum News Service
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BISMARCK — As Indian Country braces for a potentially seismic court decision, Native American lawmakers and tribal advocates in North Dakota are hoping to cement decades-old federal adoption rules in state law.

Rep. Jayme Davis, D-Rolette, is sponsoring House Bill 1536, which would weld the crux of the federal Indian Child Welfare Act (ICWA) onto North Dakota’s books.

Davis, an enrolled member of the Turtle Mountain Band of Chippewa, told the House Human Services Committee on Monday, Jan. 23, that the bipartisan proposal would help ensure Native American children grow up with strong family and cultural ties intact.

An extensive congressional investigation in the 1970s found that social services agencies and courts had removed roughly a third of Native American children from their homes and placed them in non-Native American homes and institutions. In decades prior, the federal government required many Native American children to attend boarding schools designed to strip students of their culture, language and kinship ties.

The investigation’s findings prompted Congress to pass ICWA in 1978. The landmark legislation set a higher bar for removing Native American children from their home communities by giving preference for foster care and adoption to extended family and other tribal members.

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The law remains in effect nationally, but the U.S. Supreme Court heard arguments last year in a case that could threaten ICWA’s future.

The state of Texas and several non-Native adoptive parents allege in a lawsuit against Secretary of the Interior Debra Haaland that ICWA constitutes race-based discrimination. Attorneys for the federal government maintained that the law protects the interests of Native American children and tribal communities.

Attorneys representing a coalition of tribes referred to ICWA as “one of the most important pieces of federal Indian legislation ever enacted” and asked the court to leave the law alone.

The high court is expected to release a ruling in the case this year.

Davis said the potential reversal of ICWA at the federal level adds urgency to her mission to pass a similar state law in North Dakota. The Democratic legislator said all five tribes that share geography with North Dakota were consulted during the drafting of House Bill 1536.

HB1536 by Jeremy Turley on Scribd

Alysia LaCounte, a lawyer for the Turtle Mountain Band of Chippewa, said it’s possible a state law giving priority for adoption of Native American kids to extended family members and tribal entities could remain in effect even if the Supreme Court tosses part or all of ICWA. The state already maintains a “government-to-government” relationship with tribes in the form of gaming compacts, and a state law mirroring ICWA could exist in a similar legal sphere, she said.

Sharnell Seaboy, an enrolled citizen of the Spirit Lake Tribe, told the committee that social workers approached her in September about caring for the newborn son of a relative. The Mandan resident credited ICWA with allowing her to become the boy’s foster parent. She is now hoping to adopt the 4-month-old child.

“Because of ICWA, being placed in a Native family and our cultural identity … I feel like it’s really helping my baby to grow and to flourish,” Seaboy said. “He’s connected to his culture, to his family, to his bloodline.”

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Scott Davis, who formerly served as North Dakota’s director of Indian Affairs, said passing House Bill 1536 would counteract “federal overreach” and strengthen bonds between the state and tribal governments. He added that ICWA is “very, very important to my people, to my relatives, to our court systems, to our sovereignty.”

Representatives of the Department of Health and Human Services, the state Commission on Legal Counsel for Indigents and the Standing Rock Sioux Tribe’s ICWA office testified in favor of the bill. Several proponents of the legislation offered fairly minor technical amendments.

No one testified against the bill Monday.

Committee Chairman Robin Weisz, R-Hurdsfield, said his panel likely won’t vote on the bill before next week.

Jeremy Turley is a Bismarck-based reporter for Forum News Service, which provides news coverage to publications owned by Forum Communications Company.
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