TOPEKA — Rep. Christina Haswood, a Lawrence Democrat and member of the Navajo Nation, wants to solidify Indigenous rights in the state’s child welfare system, attempting to reduce inequality in a system long beset by racial and cultural disparities.
Her attempt would implement a state version of the Indian Child Welfare Act. The federal law, passed in 1978, is meant to keep Native American children with Native American families.
The federal act passed in response to Native American children taken from their families and placed in non-Indigenous households. Native children are still disproportionately represented in foster care and face long stays in foster care locally and federally.
On a federal level, President Joe Biden’s health administration has set forward a proposed rule change that would require states to provide more data in child welfare cases related to the Indian Child Welfare Act.
Haswood is asking for requirements for custody proceedings involving Native American children. House Bill 2772 would give a child’s Indian tribe jurisdiction over proceedings and require courts to seek placement of a Native American child with the tribe.
Haswood estimated 17 states, including Oklahoma, Colorado and Nebraska, have a state-specific ICWA. The federal ICWA was a response to historical wrongs, such as the federal government’s long-lasting campaign to forcibly remove Native children from their homes and assimilate them into white mainstream culture through white adoptive families and boarding schools.
State versions of the act seek to add more protections, especially in the wake of legal challenges to the federal law.
“HB 2772’s purpose is not to change much but to make sure ICWA has a home in our state statutes,” Haswood said during a Feb. 19 bill hearing.
“We want to ensure every native child who faces these unfortunate circumstances knows there is a system that is fighting for their right to culture and heritage,” Haswood said.
Other sections of the bill, inspired by Nebraska’s ICWA, would require state courts to declare standards for proceedings involving an Indian child. The state courts also would be required to provide notice of the proceedings.
A 2021 state audit of foster care cases found Native American children were approximately 25% less likely to reunify with their parents and more likely to transfer to another agency than white children. Black and Native American children in Kansas were more likely to reach emancipation age relative to white children in foster care.
The Kansas Department for Children and Families was neutral on HB 2772 but emphasized state support of tribal relations.
“DCF recognizes the continuing and compelling governmental interest of sovereign tribal nations in their children,” state testimony read. “The department supports the federal policy underlying ICWA to protect the best interests of Indian children and to promote the stability and security of Indian tribes and Indian families by establishing minimum federal standards to prevent arbitrary and unnecessary removal of Indian children from their families and tribes.”
Several lawyers disagreed with the legislation, asking for more time and thought to be placed into the matter. Scott Nehrbass, a member of the Cherokee Nation and partner at Foulston Siefkin law firm, said legal efforts are already underway to create a uniform state ICWA.
“Kansas should not go out on a limb and get out ahead of these efforts,” Nehrbass said. “Let the legal experts first do their work and come up with a well-considered and thoroughly vetted piece of uniform legislation for our legislators to adopt, before adding a Kansas state law to the federal ICWA statute and regulations that already occupy this field. We need to avoid conflict with the existing federal ICWA statute, regulations, and case law and not create uncertainty in the law.”
Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.
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