As ICWA-for-all bills gain traction, some states raise cost, legal questions

This article is being co-published with The Imprint, a national nonprofit news outlet covering child welfare and youth justice.

Legislation that met resounding approval from Minnesota lawmakers in May represents a significant departure from typical child welfare practice. The state’s African American Family Preservation and Child Welfare Disproportionality Act pledges stepped-up measures to better ensure that nearly all children in foster care remain with their families following CPS investigations.

Requiring “active efforts” from child welfare agencies — measures that include prioritizing kin for foster care placements and providing parents greater opportunities to get the help they need to reunify their families — have long been provided to Native Americans. The 1978 Indian Child Welfare Act’s requirements are considered the “gold standard” of such services, enacted under a government-to-government relationship between tribes and the U.S. that aims to rectify centuries of brutal family separation.

In January, Minnesota will begin applying similar standards in Hennepin and Ramsey counties to all “disproportionately represented” children, following a unanimous vote by lawmakers and Governor Tim Walz’s approval. And by 2027, the law will take effect statewide, covering all those “whose race, culture, ethnicity, disability status, or low-income socioeconomic​ status” makes them more likely to end up in foster care — an estimated 90% of all children now in the system.

To date, Minnesota is one of four states that have considered or pursued such legislation, and one of two where the laws have passed. A Montana bill — referred to in the local press as “ICWA for All” — took effect May 2023. The law applies “key concepts” of the federal Indian Child Welfare Act “to all child protective services cases in Montana, not just those involving Native American children.” It also requires CPS “to prevent removal or reunify families more broadly,” through in-depth assessments, appropriate services and engagement with kin. Priority for foster care placements is granted to children’s extended family and community, with only limited exceptions. Overall, the bill provided for “ICWA-like protections and procedures to all child welfare cases in Montana.”

A similar measure in South Dakota failed in February. In an email, Matt Althoff, the state’s Department of Social Services cabinet secretary, said the bill’s passage would have muddled the child welfare legal landscape. “By duplicating language from ICWA in state statute, a state creates the scenario where discrepancies in the two codes will invariably add complication to individual cases,” he said.

And three years ago, the Washington state Supreme Court Commission on Children in Foster Care recommended draft legislation “to require active efforts for all children” before and after they were removed from home. The commission described active efforts as necessary to ensure social workers take extra steps, and provide services in a “trauma responsive manner.” As an example, they stated that rather than just giving parents a service provider’s phone number, a CPS worker would offer assistance in scheduling appointments necessary to keep the family intact.

“This is a big shift for our system because it requires better definition for what active efforts looks like, training, and staff resources,” the commission reported, citing the focus of its Keeping Families Together work group.

But in an interview with The Imprint, Ross Hunter, secretary of Washington’s Department of Children, Youth and Families and co-chair of the commission, said that policy change is no longer being pursued. He described potential impacts to the tribal children now covered under ICWA.

“Before we will do active efforts for all, I want to make sure that we’re 100% delivering active efforts for the children who have experienced unbelievable historical harm as a result of child welfare practices in the past,” Hunter said.

Billings Republican Representative Dennis Lenz authored the successful Montana legislation, which was signed into law by Republican Governor Greg Gianforte. It passed amid heated debate over whether it can coexist with a local version of the federal ICWA law.

Republicans argued successfully for the Montana state version of ICWA to have a sunset clause. Lenz’s ICWA-for-all bill — which ensured the extra protections for all children and not just Native Americans — appears to have no such end date.

Montana has “consistently ranked near the top” for its number of kids in foster care per capita, according to an audit produced for state lawmakers published three years ago — driving inquiry into why numbers spiked between 2010 and 2019. Native Americans represent just 10% of children in the state, they comprise more than a third of the foster care population.

“Anytime we can try to make laws better to protect families, to keep some of the really good gold standards in place for all families, we should,” said Lisa Woodward, a child welfare attorney at the Montana Office of State Public Defender.

The 2023 law in her state mirrors ICWA, prioritizing relatives and “fictive kin” such as neighbors, coaches or family friends over foster parents who are strangers to the children. And, if a child’s kin can’t be located or are unavailable as a foster care placement, priority goes to community members “with ethnic, cultural, and religious heritage similar to the child’s family.” Montana parents who have had their children removed also are permitted to object to the foster care placements selected.

Montana’s ICWA-for-all law differs from Minnesota’s recently passed family preservation law in two key areas: It applies to all children in foster care, rather than children from groups that are overrepresented in the system. And — rather than applying the highest legal standard of “active efforts” for all cases — it allows attorneys and social workers to determine and advocate for what’s appropriate in individual circumstances, reasonable or active agency intervention.

Montana’s Department of Public Health and Human Services did not return requests for comment about what, if any impact the law change has had on the foster care system to date.

Public defender Woodward said both laws “can and should co-exist.” She credited her state’s ICWA-for-all law with providing “more respect for families’ religious backgrounds and preferences, and more of a push to actually find and place children with extended family.”

But in interviews, Indigenous leaders in Montana, Minnesota and Washington state voiced concerns that broadening ICWA-like protections to all or most children will weaken the hard-fought protections for Native families, who are the most over-represented children in foster care nationwide. Tribal members were granted unique status when as many as one in four children were being wrenched from their families, studies at the time showed. ICWA was passed explicitly to remedy centuries of forced attendance in Indian boarding schools and adoptions into white Christian homes, and served a distinct political group of children: citizens of sovereign nations within the U.S.

Montana Rep. Jonathan Windy Boy, a member of the Chippewa Cree Tribe, wrote his state’s ICWA law, which strengthened the federal protections passed in the 1970s, and represents one of 16 similar laws nationwide. Windy Boy said in an interview that while he supported his state’s ICWA-for-all bill, he remains concerned about broadening such protections to all children.

“When you start to lump everything together, you’ve got to remember the circumstances of all of the demographics, of all races — don’t even compare it to how the Indian kids were treated, that’s the reason why the Indian Child Welfare Act was created,” Windy Boy said. “I’m not refuting the fact that kids outside Indian Country are mistreated,” but he added that “as far as history is concerned, you got your mouth rinsed out with soap for speaking your language, got spanked, your hair braids cut off — that didn’t happen to non-Native kids.”

Tleena Ives, director of tribal affairs for the Washington Department of Children, Youth and Families and a member of the Port Gamble S’Klallam Tribe, has heard similar concerns from tribal members.

“It is important to understand the historical and legal context of ICWA. The protections to tribal nations and tribal families are not based upon race; however child welfare has disproportionately impacted Black and brown communities,” Ives said. “From what I have heard from tribes, it is important that this does not impact the protections of ICWA.”

Other skeptics cite the potential cost of broadening active efforts to wider swaths of the foster care population. Active efforts — rather than “reasonable” ones — require more social worker time and agency expense on things like providing assistance for relatives and enhanced services for parents. And even under ICWA’s explicit requirements for Native Americans that currently exist, compliance is considered spotty and “active efforts” often poorly applied.

“It’s more work than the average child welfare case,” said Robert Ludgate, a Siksika Nation descendant who has worked in the Indian child welfare field for more than two decades and researched active efforts nationwide. “There’s a high risk it would actually negatively impact ICWA cases, just because there’s less people to deliver a higher requirement of work.”

Along with others, Ludgate also worries that creating laws similar to ICWA for other populations could create more legal jeopardy for a law that has been repeatedly challenged in courts for “perceived or alleged discrimination” against white foster parents.

“Every bill that has some kind of similar overlap into ICWA, seems like it could theoretically open the door to another ICWA challenge,” Ludgate said.

Others point to the cost of applying ICWA more broadly. Secretary Hunter said while the Washington Supreme Court commission did briefly consider the idea, the plan would have been unrealistic for his agency.

“It would be very expensive to do, and would require a service array that is much larger than what we have today,” Hunter said. “It will be interesting to see how that works out in Minnesota, but you have to do it in a way where you’re not requiring something you don’t have the services to provide.”