A conference committee of the Montana Legislature voted against restoring the original language to a bill that would codify the federal Indian Child Welfare Act into Montana state law, as requested by the bill’s sponsor.
House Bill 317, which was designed to secure protections for Indigenous children under state care while the federal ICWA is threatened in a Supreme Court case, is moving forward with a contested amendment that would give the law an end date. Another amendment brought by an earlier Senate committee request removed language in a section of the bill that would help ICWA cases determine if a child belongs to a tribe.
Rep. Jonathan Windy Boy, Democrat, specifically wanted to remove amendments that implemented the sunset date and to resurrect the section that would define processes for courts in determining how to handle cases of a child in which their native status is pending. Both sections were altered in an amendment requested by Sen. Dennis Lenz, Republican, during the Senate Public Health, Welfare and Safety committee earlier in April.
Windy Boy said the determination amendment specifically, could be seen as a challenge by the state against tribes regarding enrollment and identity.
“That means Montana is telling the tribes ‘To heck with your enrollment ordinances that you recognize, Montana is now going to be defining to you who is an Indian child,’” said Windy Boy in a phone interview with MTFP and ICT about the section removal.
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“That needs to go. It’s not fair for the tribe to not be at the table because they make those determinations through their enrollment certification process,” said Windy Boy during the conference committee. “(The) State of Montana has no business in making that determination of that Indian child.”
The Montana ICWA bill passed through the House Human Services Committee and the House floor in February, and was re-referred to the Senate Welfare Committee for further debate. However, that committee’s vice chair, Lenz, has a similar bill making its way through the Legislature seeking to implement a version of ICWA with protections to all children in the state.
Lenz amended the Montana ICWA bill to include a termination date in which the bill states, “The Legislature does not expect this [Haaland v. Brackeen] to be the final word on how we deal with Indian child welfare issues or how we seek to provide for all Montana’s children within the child protection system.”
Lenz, who was in attendance during the conference committee, spoke against Windy Boys’ proposed changes.
“This is a concept that we have to kind of get our head around,” Lenz said. “What is it that we are doing? If ICWA on a federal level goes away, do we as Montanans just accept ICWA, federal ICWA and dump it in our law?”
Lenz’s ICWA for All bill also passed the House floor earlier this month with a 92-4 vote during the second reading. Windy Boy voted in support of Lenz’s bill, in hopes both versions could coexist.
“And so that’s why I supported it, because it’s for all kids,” Windy Boy said in an interview earlier in April. “We’re all the same. We’re here for the kids and the children, families and all that.”
Lenz’s bill is now headed to the Governor’s office to be signed into law while Windy Boys ICWA bill is now transferred back to the both chambers for further consideration with the reworked amendments.
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.