Utah is taking another shot at enshrining its version of the federal Indian Child Welfare Act into state law.
The federal law was in response to Indigenous children being forcibly removed from their homes – often without a cause – and placed into non-native families or government-owned boarding schools.
In 2023, legislation that would have codified ICWA was on track to pass in the Utah Legislature. It sought to prioritize placing Native American children with biological families instead of going through the adoption or foster care process.
It had the strong support of the eight federally recognized tribes in Utah. Gov. Spencer Cox, Lt. Gov. Deidre Henderson and Utah Attorney General Sean Reyes all urged lawmakers to pass the bill. At the same time, the fate of the federal law was up in the air. The U.S. Supreme Court was hearing oral arguments on ICWA. Opponents questioned its constitutionality, arguing the law is based on race rather than the best interest of the child.
Despite its bipartisan support, some lawmakers, like Republican Rep. Karianne Lisonbee, believed any state legislation would have acted preemptively and she preferred to wait until the Supreme Court made its decision. As a result, the bill failed to make it out of the Utah House.
In the end, the high court ruled that ICWA was constitutional. It stated Indigenous nations are “independent political communities, retaining their original natural rights.”
With the case resolved, Democratic Rep. Angela Romero intends to bring the state legislation back. Her draft bill, The Indian Family Preservation Act Amendments, seeks to put the protections for Indigenous child placement outlined in ICWA in state code. During a Nov. 13 committee hearing, Romero said she and her team have been working with the Paiute Indian Tribe of Utah, along with “all of the other tribal leaders” to solidify “what the bill wants to do.”
“There's clear standards of what we do when we're working with our Indigenous populations, and how we look at foster care, how we look at adoption, how we look at termination of parental rights, [and] how to be culturally appropriate and respectful,” she said.
Tamra Borchardt-Slayton, family advocate coordinator for the Paiute Indian Tribe of Utah and a tribal council member, thanked Romero for the steps she’s taken. She acknowledged the 2023 bill was not able to get across the finish line but is “hopeful that the Utah Legislature moves to enact this important law.”
“The Utah Indian Family Preservation Act seeks to strengthen family bonds, empower local communities and promote culturally aligned solutions for Utah's native children and their families,” she said.
Ozzy Escárate, director of The Office of American Indian and Alaska Native Health & Family Services, said codifying Utah’s version of ICWA is “really a tribal-led coalition.” While the legislation received a unanimous supportive recommendation from the Native American Legislative Liaison Committee, Escárate said his office is reading over the new proposal, therefore they are “neutral on this bill until further notice.”
“What my experience has been with working with tribal partners, is that they generally support this, and this is something that has been a priority for them for several years now. So we're excited about the possibilities.”
The federal law has had a checkered enforcement history, in 2017 David Leavitt, the former Utah County Attorney, made an adoption that raised red flags.
