Bill preserving Indigenous families and communities clears the Senate

The state’s version of a federal law is the “platinum standard” of child welfare policy, sponsor says

By: - February 16, 2022 5:00 am

The state Senate on Monday, Dec. 6, 2021 at the Roundhouse in Santa Fe. (Photo by Austin Fisher / Source NM)

The Indian Family Protection Act was passed by the New Mexico Senate Tuesday afternoon. 

The bill, which would be the state’s version of the federal policy known as the Indian Child Welfare Act (ICWA), is headed back to the House of Representatives for agreement on amendments made to the bill. The House previously passed the bill 52 in favor with 12 opposing. If it’s passed by the House, it will head to Gov. Michelle Lujan Grisham — who has already publicly supported the bill — to be signed into law.

“It is important for us to do this for a couple of reasons. One reason is because ICWA is currently under attack at the federal level,” Daniel Ivey-Soto, co-sponsor of the bill, said on the Senate floor. “The second reason why it’s important for us to do this, though, is by adopting this at the state level, we’ve been able to strengthen the provisions of federal ICWA as it applies here in New Mexico.”

The sponsor of the bill, Rep. Georgene Louis, described this bill as the platinum standard of child welfare policy. Through collaboration with Pueblos and Tribes of New Mexico, the legislation has been able to add more accountability when it comes to Native American children, who are disproportionately represented in the child welfare system, and ensures they stay within their own families or communities. 

Federal ICWA was passed into law after up to 35% of Native American children, beginning in the 1960s, were removed from their families and adopted by mostly non-Native parents. ICWA was passed to keep Native American children with their families and to recognize their unique political status as being enrolled in a federally recognized nation. 

New Mexico is home to 23 Pueblos and Tribes who would benefit from this bill. There are currently 150 Native American children in custody of the Children, Youth and Families Department. Forty percent of those children are not in preferred placements which includes, extended family, another family in the child’s nation or, in general, a Native American family.   

During the Senate meeting, Sen. George Muñoz asked Ivey-Soto if there was consensus with all the Pueblos and Tribes of New Mexico on this bill. 

“Yes, this bill has had extensive input, actually over a three-year period, from all of the Tribes in New Mexico, from CYFD, from people who work professionally in this area. This really has been one of the most collaborative bills that I’ve ever worked on,” Ivey-Soto responded.   

The bill got input from Navajo Nation ICWA, New Mexico Tribal Indian Child Welfare Consortium, The Coalition to Stop Violence against Native Women, Bold Futures NM, CYFD, Eight Northern Indian Pueblos Council, All Pueblo Council of Governors, NM Tribal State Judicial Consortium, elected leaders from the Pueblos and Tribes along with Native American social workers. 

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This bill is also supported by CYFD. Secretary for the department, Barbara Vigil, who was appointed by the governor in 2021, was present at the Senate meeting and even tapped as an expert witness. Even as the language in the bill was being changed, it went back to the Pueblos and Tribes for input, said Ivey-Soto on the Senate floor. 

Sen. Linda Lopez applauded bill sponsor, Rep. Louis, saying, “We need this legislation, Mr. president, again to protect the best interest of and to promote the stability and security of Indian Tribes and families by establishing these minimum standards. Mr. president, members of the Senate, I want to say thank you of course to Rep. Louis and others who have been involved.”

Protections for Indigenous children and families in NM

New Mexico Sen. Crystal Diamond, the only senator to challenge the bill, questioned why the bill was being presented so hastily when the Indian Child Welfare Act was being challenged at the federal level for being unconstitutional. The plaintiffs in Brackeen v. Haaland, a case involving the adoption of a Navajo child by non-Native people, has filed for a petition with the Supreme Court to determine if the law is constitutional. 

The case claims ICWA is a race-based law. ICWA protects Native American children who are enrolled in a federally recognized tribe and keeps them in their families and communities when possible. The law recognizes the unique political status of Native American children. 

Ivey-Soto said ICWA is also being challenged because it oversteps states’ rights and these types of laws should be handled by each state. The bill would resolve the second issue. 

“Instead of having our laws devoid of this really important and very complex area of law, where we would just always pivot to federal law — which isn’t always the clearest and sometimes operates more on urban myth than it does than off of what is actually written — it was an opportunity to have it in our code,” Ivey-Soto responded. 

Diamond went on to say, “If CYFD isn’t complying at a federal level today, what makes us think that they’ll comply with state laws once we pass this?”

In 2019, CYFD created the ICWA Unit to ensure the federal statute was being followed and that the state was in compliance. That same year the Second Judicial District also established the ICWA Court.

“Actually CYFD is in compliance with ICWA. That has not been an issue. What is an issue is ensuring… training for judges,” Ivey-Soto said. “And that we’re actually able to make sure that we have qualified expert witnesses whose expertise matches the Tribe of the child. By bringing it into state law there’s a number of things that we are able to do to actually breathe a greater life into what has been done at the federal level.”

The bill would also ensure that every six months, children who aren’t in preferred placements are assessed to see if any preferred placement options have become available. Diamond said she was uneasy about the bill because she has a “very good friend” who has a Native American child, and that child is going to be returned to their family, community or another Native American family that meets the definition of a preferred placement. She claimed the bill didn’t put the best interest of the child first. 

“The best preferred placement would be a home that will provide, protect and love a child, and there shouldn’t be a discrimination against someone like me if I was readily able to take in a child in need,” Diamond said. 

Micha Bitsinnie, an advocate for the bill, has been telling the story of a close relative whose child was almost removed from their family because of an accidental burn that hospital staff in Albuquerque said was suspicious. According to the National Indian Child Welfare Association, Native American children are two times more likely to be investigated and four times more likely to be placed in foster care due to systemic bias.

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Native American legislator, Sen. Benny Shendo, spoke after Diamond saying, “We always get into this situation of whether things are race-based or not. All of us need to understand that Indian tribes have a very unique relationship with the federal government… That unique relationship extends to today in terms of the rights that we have as Tribal people. It’s not because we’re a race. We’re a political entity recognized by the federal government.”

The Senate ultimately passed the bill, 33 in favor, with Sens. Craig Brandt, Crystal Diamond, Pat Woods and Gregory Baca opposed. The bill is now in the House Floor concurrence calendar. The legislative session is scheduled to end Thursday at noon. 

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Pauly Denetclaw
Pauly Denetclaw

Pauly Denetclaw, a citizen of the Navajo Nation, is Haltsooí (Meadow People) born for Kinyaa’áanii (Towering House People). An award-winning reporter based in Gallup, New Mexico, she has worked for the Navajo Times and Texas Observer covering Indigenous communities, and her radio pieces have aired on KYAT, National Native News, NPR’s Latino USA and Texas Public Radio. She is a board member of the Native American Journalist Association. Follow her on Twitter, @pdineclah.

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