Montana Indian Child Welfare Act gets a Senate hearing

Roberta Duckhead Kittson Nyomo said she and her brother were among the last Native American children adopted out of Thompson Falls before the federal Indian Child Welfare Act was passed in 1978. The siblings were sent to live with a non-Native family. Nyomo remembers them lacking empathy.

Nyomo, a member of the Blackfeet Nation, said she and her brother were abused, and she lost her brother to suicide when he was 15.

To this day, Nyomo said, she believes their lives would have turned out differently if they had been placed in a Native American family. She told her story to the committee and subsequently in an interview with Montana Free Press on Wednesday, following a meeting in which the Senate Public Health and Human Safety Committee heard House Bill 317, which would create the Montana Indian Child Welfare Act and reinforce protections for the state’s Native children by prioritizing tribal involvement in the state’s child placement processes.

The bill is under consideration as the federal Indian Child Welfare Act is challenged in the U.S. Supreme Court by non-Native guardians pursuing adoption of Native children and claiming that ICWA is unconstitutional on the basis of racial inequity.

“ICWA needs to stay in place,” Nyomo said. “It’s a protection for the younger people of Indian Country, and I would never want no Native American child ever to have to go through what I and my brother had to go through.”

Wednesday’s hearing was the last opportunity for public comment on the bill, and more than 30 individuals came to speak in support, including Native adoptees like Nyomo speaking from personal experience.

“I would never want no other Indian child to lose their family like I did,” Nyomo said in an interview. “So ICWA is very important to me, and I will do whatever it takes to fight for and keep it in place.”

Representatives of Indigenous advocacy groups including Western Native Voice and the ACLU of Montana joined non-Native speakers to fill the meeting room in support of HB 317. At least nine proponents were present via Zoom. The meeting lasted nearly three hours, during which the bill received no public opposition.

The proposal passed through the House Human Services Committee and the House floor in February, and was re-referred to the committee for further debate, whose vice chair, Sen. Dennis Lenz, R-Billings, expressed concerns associated with his own bill, Senate Bill 328, which he said would expand ICWA protections to all children in the state.

The federal Indian Child Welfare Act was created in 1978. According to the act, states are required to follow a line of succession when placing Native 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.

Bill sponsor Rep. Jonathan Wind Boy, D-Box Elder, said he initially wanted to codify ICWA in Montana law when he carried a similar bill in a previous session. Now, he believes the need is even greater.

“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 introduction of the bill last month on the House floor, referring to Brackeen v. Haaland. “That may have some ramifications on issues like this.”

If the bill is passed, Montana will join 11 other states that have ICWA policies codified in state law, including New Mexico, Iowa, California, Nebraska, Washington, Michigan, Wisconsin, Minnesota, Oregon and Oklahoma. Wyoming’s governor signed ICWA protections into state law earlier this month.

Lenz, vice chair of the committee, is sponsoring SB 328, which would “apply ICWA concepts to all child protective services cases” in Montana. SB 328, which Lenz refers to as the “ICWA For All Bill,” seeks to place children with families that share similar ethnic, cultural and religious heritages.

“What I tried to incorporate is, say, for instance, in place of tribal, I put community and family and church and whatever I could to kind of [create] equivalency,” Lenz said in an interview after the Wednesday hearing. “Some things are not an equivalency on the reservation because they have a different sub-structure of government.”

Lenz said he doesn’t think Windy Boy’s bill and his can coexist, and said he finds recreating federal law in state law problematic. Windy Boy and several attorneys said the bills do not conflict with each other.

Lenz became emotional during committee questioning and asked Kelly Driscoll, a Missoula family defense attorney who spoke in support of HB 317, about the differences between HB 317 and SB 328.

“There are particular experiences that have disproportionately impacted Native American families, undoubtedly,” Driscoll said in response. “We still have almost half of Indian children in the state of Montana subject to [Child and Family Services] investigations, and to compare that to non-Native families, White children, only 37% of them are subject to CPS investigations.”

Driscoll added that there should be additional considerations for Indigenous families and said she believes both bills can coexist.

Lenz disagreed. “I’d love for us to coexist but I’d also like for us to live in the same house, not just be neighbors across the fence,” he said.

In his closing statement, Windy Boy emphasized the unique character of the Indigenous experience in Montana.

“The difference is history,” Windy Boy said. “There has been a lot of things that have happened over the course of the last hundred years, for example the boarding school era had come about and recently subsided in the ’70s.”

Windy Boy said that history justifies the need for specific protections for Indigenous children. He described post-traumatic stress disorder as one of the lasting effects of historical treatment of Native children.

“Maybe something that’s going to improve not just for this bill but for everybody as whole Montanans, because that’s what we’re aiming to do, is try to protect the best interest of children, and that’s what the purpose of this is,” Windy Boy said.

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.