Indigenous Kansas Politician Introduces State Version of ICWA

By Isaac White.

The landscape of child welfare in Kansas is poised for a transformation as Representative Christina Haswood, a Lawrence Democrat and Navajo Nation member, proposes pivotal legislation aimed at solidifying the rights of Indigenous children within the state’s child welfare system. Haswood’s proposal, House Bill 2772, seeks to embed the principles of the federal Indian Child Welfare Act (ICWA) of 1978 into Kansas state law, addressing the systemic inequalities that have long shadowed the child welfare system.

The federal ICWA was enacted as a response to the alarming rates at which Native American children were being removed from their homes and placed in non-Indigenous households, in an effort to assimilate them into white mainstream culture. This practice, deeply rooted in a history of colonialism and cultural erasure, aimed at severing the ties between Native children and their heritage. Despite the federal act’s efforts, Native children continue to be overrepresented in foster care systems, facing longer stays in foster care compared to their non-Native peers.

Haswood’s initiative is particularly timely, as President Joe Biden’s administration proposes rule changes at the federal level to require states to provide more detailed data in child welfare cases involving Native American children. These changes highlight a renewed national focus on the rights and welfare of Indigenous children in the child welfare system.

House Bill 2772 aims to ensure that custody proceedings involving Native American children prioritize the jurisdiction of the child’s tribe and seek placements that maintain the child’s cultural and familial connections. This approach is not only about respecting tribal sovereignty but also about recognizing the importance of cultural heritage in the development and well-being of Native children.

Kansas would not be the first to adopt state-specific ICWA legislation; approximately 17 other states, including Oklahoma, Colorado, and Nebraska, have already enacted similar laws. These state versions of ICWA are designed to offer additional protections and to reinforce the federal act, especially in the face of legal challenges that threaten its efficacy.

During a bill hearing on February 19, Haswood articulated the intent behind HB 2772: to ensure that the ICWA’s protections are firmly embedded in Kansas state statutes. “HB 2772’s purpose is not to change much but to make sure ICWA has a home in our state statutes,” Haswood stated, emphasizing the goal of creating a supportive system that upholds the rights of Native children to their culture and heritage.

The bill also draws inspiration from Nebraska’s ICWA, proposing that Kansas state courts adopt clear standards for proceedings involving an Indian child, including the requirement to notify the child’s tribe about the proceedings. This measure seeks to address findings from a 2021 state audit, which revealed that Native American children in Kansas foster care were significantly less likely to reunify with their parents and more likely to age out of the system than their white counterparts.

While the Kansas Department for Children and Families has expressed a neutral stance on HB 2772, emphasizing its support for tribal relations and the underlying federal policy of ICWA, the bill has faced skepticism from some legal professionals. Scott Nehrbass, a Cherokee Nation member and partner at Foulston Siefkin law firm, cautioned against premature state action, suggesting that Kansas should wait for uniform ICWA legislation to emerge from ongoing legal efforts at the national level. Nehrbass’s concerns highlight the complexity of harmonizing state and federal laws in a way that respects tribal sovereignty while ensuring the welfare of Indigenous children.

Key aspects of the Kansas Indian Child Welfare Act, as described in the text, include:

• The act applies to all child custody proceedings involving an Indian child in Kansas, with specific exceptions.

• It sets forth procedures for determining the Indian status of a child involved in custody proceedings.

• It mandates notice requirements to ensure that parents, Indian custodians, and tribes are informed and have rights to intervene in proceedings involving Indian children.

• It specifies placement preferences for Indian children in line with federal ICWA guidelines, emphasizing placements that reflect Indian cultural values.

• It outlines requirements for temporary custody orders, including the necessity for evidence and expert witness testimony to justify such custody.

• It establishes the state’s collaboration with Indian tribes regarding the care, custody, and placement of Indian children, including jurisdictional agreements and financial responsibilities for foster placements licensed by a tribe.

• It emphasizes the importance of maintaining and sharing records related to the placement of Indian children with their tribes and the federal government.

As House Bill 2772 moves through the legislative process, it represents a critical step toward rectifying historical injustices and ensuring that the child welfare system in Kansas reflects the values and needs of its Indigenous populations. By acknowledging the unique governmental interest of sovereign tribal nations in their children, Kansas has the opportunity to lead by example, promoting the stability and security of Indian tribes and families through thoughtful, culturally informed legislation.