The platinum standard of the Indian Child Welfare Act

How New Mexico’s protections are even stronger than the federal statute they were modeled after

By: - March 21, 2022 3:50 pm

(Getty Images)

New Mexico has joined nine other states in enacting their own version of the Indian Child Welfare Act, a national policy that aims to keep Native American children with their families and communities. 

ICWA is described as the gold standard of child welfare policy. New Mexico’s new law, the Indian Families Protection Act, is described by the sponsor of the legislation that created it as the platinum standard. 

The state law, just signed by the governor earlier this month, closes gaps in federal policy by requiring early notice if a child is removed. It also allows Tribal community leaders to determine kinship and protects Indigenous families in the state if the U.S. Supreme Court chips away at ICWA.

One of the key differences is that New Mexico requires that a notification of investigation goes out to Pueblos and Tribes within 24 hours.

Jacqueline Yalch is the president of the New Mexico Tribal Indian Child Welfare Consortium that helped draft the new state law. She said that early notification makes a huge difference for Indigenous families. 

A report by the National Indian Child Welfare Association states that Indigenous families are two times more likely to be investigated, and their children are four times more likely to be placed in foster care. 

“One of the main challenges that New Mexico Tribes were facing when the consortium began its conversations in 2015 was the late stage of notification that was occurring between state and Tribes at a termination of parental rights proceedings,” said Yalch (Isleta).

Protections for Indigenous children and families in NM

The act also establishes that parental rights cannot be terminated if Tribes were not notified in a timely manner and given the option to say whether the termination is opposed. 

“Once that notice is sent out, the Tribes and state will start working with each other to look at whether or not it even meets the level of child removal,” Yalch said. “That will play a piece into the investigation.”

As the social services director for the Pueblo of Isleta, Yalch has seen firsthand the kind of positive outcomes that happen when Pueblos and Tribes are notified early on. For example, the Pueblo of Isleta wanted to be notified more quickly about proceedings and investigations. 

“Because of that, Isleta has only had five legal filings of ICWA cases in, I believe, a 15-year period,” Yalch said. “Only five.”

New Mexico’s new law even gives Indigenous nations the opportunity to take jurisdiction over cases and investigate through the tribal court system.       

The act also allows for Pueblos and Tribes to help determine who is considered part of the extended family or a preferred placement. This allows for the system to recognize that Indigenous nations have a different way of defining familial relationships that are created through a clan system, ceremonies or traditional kinship. 

“It is not us as an agency, with that western lens of family, coming in saying, ‘This is who your family is,’ ”said Donalyn Sarracino, director of Tribal Affairs with the state’s Children, Youth and Families Department. “This is who the Tribe is saying family is.”  

I was raised and taught that we are born for our Tribe. We are put here for our Tribe. So, coming from within a state agency, we can't just treat the Tribe as the Tribe. The Tribe is the parent.

– Donalyn Sarracino, Tribal Affairs director, CYFD

The act codified a practice that CYFD has been implementing for the last year where a staff member is assigned to work with Indigenous children who are not in a preferred placement. The staff member checks in every 30 days to work toward getting the children back to relatives, extended family or, at the minimum, someone from their community. 

Though the goal is ultimately not to have to do that,  “I know that in reality that’s not possible,” Sarracino (Acoma) said. “We’re going to have situations where we have children with a higher level of need, who may need treatment foster care, or residential care.  Doing these placement staffings also means that our children are not going to get lost in those systems and that we constantly are aware of what’s going on and what their needs are. And we’re still working with the Tribe. We’re still working with the family.”

This act goes far beyond ICWA in even defining who is a qualified expert witness and prioritizing expert witnesses from the child’s Tribe. The law also requires that judges, lawyers and caseworkers have to go through training on the state’s law. 

For children who are not in preferred placements or whose extended family is non-Native, N.M. law requires that a cultural compact is established to ensure the child has access to their Indigenous communities and cultures.  

“I was raised and taught that we are born for our Tribe,” she said. “We are put here for our Tribe. So, coming from within a state agency, we can’t just treat the Tribe as the Tribe. The Tribe is the parent.”

Sarracino cited the perspective of former Pueblo of Acoma Gov. Kurt Riley, who said the Tribe is not just the third parent but the primary parent for Indigenous children.

“It’s not a western open adoption agreement. This is something that says, ‘If you’re going to adopt my child, this is what is required of you to properly care for my child, not just physically, but mentally, emotionally, spiritually, culturally,’ ” Saraccino said. 

Historically, Indigenous children and families have been persecuted and attacked by federal policies that destroyed the connection between Indigenous children and their families and communities. Federal Indian boarding school and adoption policies would today meet the United Nation’s definition of genocide

The forced removal of Indigenous children by federal, state and local governments is why the Indian Child Welfare Act was passed. Beginning in the 1960s, up to 35% of Indigenous children were removed from their families and adopted out to mostly non-Native families. 

“Every single Indigenous child in this nation needs and has the right to ICWA,” said Heather Yazzie-Kinlacheeny, policy fellow for Bold Futures. “People belong at home with their communities.”

The Supreme Court will hear oral arguments on four ICWA cases that have been rolled into one hearing in October. Justices will weigh whether the law protecting Indigenous children and communities is unconstitutional because it’s based on race. 

The challenge raises questions of Tribal sovereignty, with proponents saying the 44-year-old law is not based on race, because Indigenous people from federally recognized tribes have a unique political status in what is now called the United States. They are citizens of sovereign Native nations. 

Given that ICWA is heralded as the gold standard in child welfare policy by a coalition of 18 national child advocacy organizations, Tribes say these challenges to ICWA seem to have little to do with child welfare and are attacks on sovereignty.  

“Sovereignty and Indigenous rights have been challenged by people of all political parties and various compositions of the court,” Yazzie-Kinlacheeny (Diné) said. 

Supreme Court to hear case Tribes fear is a threat to sovereignty

Still, Yazzie-Kinlacheeny said, New Mexico’s passage of the Indian Family Protection Act is a boost in a bigger fight. 

“We move forward from a hopeful lens of saying, ‘Regardless of what happens at the federal level, we’ll maintain the wellbeing of Indian children, families and communities here at home, and then fight like hell at the national and other state levels to make sure other children and families are protected, too.”

“We’ve seen states slowly chip away at tribal sovereignty, through gaming compacts, land rights issues,” said Micha Bitsinnie, policy fellow for Bold Futures, who advocated for the act. “So this is another chip at that sovereignty.” 

Bitsinnie (Diné) has seen firsthand in her own family how devastating the effects of removing an Indigenous child from their home can be. Twice, she’s had to help her family navigate the foster care system. First, after her sibling was removed in Utah and then again with a younger relative in New Mexico. 

“Having my family and having had to go through the ICWA courts, when we were younger was so difficult, and it wasn’t as easy,” Bitsinnie said. “There were less obstacles in New Mexico, when I had to face the issue with my (relative). In Utah, it took us years, and it was unfortunate. And the entire time my (relative) was going through all kinds of abuse.”

The relationship to Bitsinnie has been removed to protect the privacy of her family members. 

Ultimately, the goal of laws like these are to ensure that Indigenous children and families are protected. 

“We want to make sure that we follow the true intent of ICWA, to follow the true heart of it, keeping our tribal children and therefore preserving generations and our culture for the future,” Bistinnie said. 


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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.