Boarding school in 1885 in Albuquerque, N.M. Such schools are part of a long history of the United States government taking Indigenous children from their homes. A federal law established in the 1970s aimed to protect children and families, but it’s facing a challenge in the Supreme Court. (Photo from the National Archives / Public Domain)

It was winter 2016, and Micha Bitsinnie was getting a call from her relative. They were panicked, saying that the hospital was refusing to release their child because hospital staff suspected abuse and neglect. 

Like many Navajo families, Bitsinnie’s relative used coal to heat their home, and their child had accidentally burned themselves on the coal ash. The child was taken to their local Indian Health Services’ hospital in Kayenta, Ariz., where the family was instructed to keep the injury clean and use a topical cream on the second-degree burn. 

Two weeks later, the family was visiting Bitsinnie in Albuquerque. The child was still experiencing pain. So, Bitsinnie and her relative decided it was time to take the child to the hospital for the second time. This hospital’s staff said the child had a third-degree burn that needed a skin-graft, and they alleged neglect, because the family had not brought the child to the hospital sooner. Staff there also described the burn as suspicious. 

Bitsinnie called on her knowledge of the national law, the Indian Child Welfare Act.

“Thankfully, I knew federal ICWA and was able to use that and fight,” she said. “The (Child, Youth and Families Department) workers had no idea, the police had no idea, what I was talking about.”

ICWA was passed by Congress and signed into law in 1978 to keep Native American children with their families and recognized the unique political status of Native American children. Understanding this, Bitsinnie immediately reached out to the tribal liaison for CYFD — someone who knows ICWA — which made it possible for Bitsinnie to get custody of the child until everything could be sorted out. 

“We followed the proper channels and got the case transferred to Navajo Nation, where they found no neglect at all… and the case was closed,” she said.

These situations are not uncommon for Native American families. Native American children are disproportionately overrepresented in the child welfare system. Due systemic bias, one study found, they are two times more likely to be investigated and four times more likely to be placed in foster care. State and federal agencies taking Native American children from their families and communities has a long, heartbreaking history. 

 

This is why Bitsinnie, a policy associate for Bold Futures NM, is one of many people across New Mexico advocating at the New Mexico Legislature for HB 135, the Indian Family Protection Act. This would be the state’s version of the Indian Child Welfare Act, and it’s needed, advocates say, in case attacks on the federal law prove successful. 

“In the Indian Family Protection Act, we added more provisions for more accountability, for placement preferences, notification to tribes, and various other things throughout the bill,” said Rep. Georgene Louis, who’s sponsoring the legislation. “So what we’re trying to do with this bill is to ensure that there’s accountability with the Children, Youth and Families Department.”

The bill cleared the House and is making its way through the Senate. It was passed by the Senate Indian, Rural and Cultural Affairs committee Thursday morning but is heading to the Senate Judiciary committee where it failed last session. 

“Historically, it’s unfortunate that Native children have been separated from Native families and it’s still occurring,” Louis said.

ICWA is being challenged in Brackeen v. Haaland, a case involving the adoption of a Navajo child by non-Native people, and the plaintiffs filed a petition for the Supreme Court to review the constitutionality of the law in September. 

Justices have yet to make a decision on whether or not they will hear the case. If they do, the worry is that with the current makeup of the court, ICWA could be struck down. This makes the stakes even higher for the Indian Families Protection Act as it traverses the New Mexico Legislature in the final days of the regular session

“It’s scary if it doesn’t get passed,” said Jacqueline Yalch, president of the New Mexico Tribal Indian Child Welfare Consortium.

The language in the bill was carefully crafted by the stakeholders who matter most — the pueblos and tribes of New Mexico. In 2015, the New Mexico Tribal Indian Child Welfare Consortium was created and composed of 20 Pueblos, Ramah Navajo and two Apache Nations. The consortium created this bill and advocated for it to get passed in the 2021 legislative session. Unfortunately that didn’t happen.

“I am very hopeful. I am being optimistic about this. This is needed. I feel that the support has increased since the last session, because people are more aware of what its purpose is and the intent behind it,” Yalch said. “It really is looking at keeping children connected and keeping families connected. I am very hopeful that it will get through the next Senate committees and hopefully pass.”

ICWA has been described as the gold standard for child welfare policy. The Indian Families Protection Act in New Mexico would be the platinum standard, Louis said. 

Last week, Navajo Nation President Jonathan Nez met with New Mexico lawmakers and Gov. Michelle Lujan Grisham to talk about the Indian Family Protection Act, along with various other bills the Nation has interest in being passed. 

“It’s always been the position of the Navajo Nation to protect, preserve and restore the harmony and unity of a family,” Nez said. “ICWA laws have really protected our children, Native American children, to make sure that they’re either with their immediate family, extended family or another family within their tribe, or last resort, another tribe.”

The Navajo Nation Department of Justice had LaTonia Johnson, associate attorney general for the Human Services and Government Unit, look over the bill to ensure it met the needs of the Navajo Nation. 

“Overall, the Navajo Nation, we support House Bill 135,” Nez said.