Bill quickens state DHS ICWA applicability determination

Senior Reporter
05/16/2019 04:00 PM
OKLAHOMA CITY – Native children in need of foster care will have a chance to be placed more quickly with an American Indian household when a new state bill goes into effect.

Gov. Kevin Stitt signed House Bill 1074 into law on April 15. It added language to the regulations governing the placement of children by the Oklahoma Department of Human Services, stating: “The Department shall verify applicability of the Indian Child Welfare Act within three months of the child being taken into custody.”

Language is also added regarding the search for relatives for placement, reading: “…a nationwide relative search shall be conducted by the Department (of Human Services) within three months of the child being taken into custody.

The bill becomes effective Nov. 1.

The law already states in cases “where the Indian Child Welfare Act applies, the placement preferences of the act shall be followed.”

Chrissi Nimmo, Cherokee Nation deputy attorney general, said the tribe was pleased with the additional language, but would like to see the state take further steps.

“We support the effort by the state to determine ICWA applicability and locate relatives of Indian children sooner, within the first three months of taking custody,” Nimmo said. “However, we would also want to ensure that under the proposed bill, if there is some extenuating circumstance that this requirement is not met in that timeframe, that placement with a relative or application of the federal ICWA law continue to be followed as a matter of protecting the rights of our tribe and Native children.”

HB 1074 passed the House of Representatives and the Senate without dissent.

The ICWA is itself facing legal challenge in Brackeen v. Bernhardt, heard by the 5th Circuit Court of Appeals in New Orleans on March 13. Texas, Indiana, Louisiana and individual plaintiffs won a federal trial in Texas claiming that the ICWA is unconstitutional.

An appeal was filed in the 5th Circuit by the defense, which has received amicus briefs supporting the ICWA from 325 tribal nations, 57 Native organizations, 21 states, 31 child welfare organizations, seven congressional members and dozens of law scholars. The case will likely be appealed to the Supreme Court, regardless of the Circuit Court’s ruling.

The suit names federal agencies and officials as defendants, and five tribes – including the CN – have intervened as defendants.

Those states questioning ICWA’s constitutional merit have argued that it meddles in state affairs and requires the placement of American Indian children “in accordance with statutory requirements based on race, rather than the child’s best interest.”

The defendants say the U.S. Constitution specifically gives Congress authority to legislate for the benefit of the tribal nations, and the ICWA falls within that constitutional authority because it applies only to children who are either citizens of a federally recognized tribe or who are eligible for citizenship and the biological child of a tribal citizen. The defense also cites precedent, saying Congress has passed legislation concerning Native children from the birth of the republic. The defendants also argue that the ICWA creates a partnership between states and tribes when in safeguarding the health and well-being of American Indian children.

Regarding the matter, Principal Chief Bill John Baker wrote: “Aside from the statistics in relation to the removal of Native children, there is a fundamental disconnect when it comes to the rights of Native children to maintain their connection to their family, their tribe and all their tribe has to offer. The violation of ICWA for any reason not only harms the children’s connection with the tribal government but is also detrimental to future generations of Cherokee children. Time and time again, deep-pocketed entities opposing ICWA cry out discrimination, but in all cases involving the removal of Native children, the bottom line is about human rights.”
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