MINNESOTA PASSES LANDMARK LEGISLATION
MIFPA strengthens protections for Native American children and families involved in the state child protection system
By VIVIAN LaMOORE, INAAJIMOWIN EDITOR
On Thursday, March 9, 2023, the Minnesota House of Representatives unanimously voted to pass a bill into state law that made revisions to the Minnesota Indian Family Preservation Act (MIFPA). Essentially, the bill will codify into state law the protections of the Indian Child Welfare Act (ICWA). This law enhances state child welfare laws and strengthens protections for Native American children and families in Minnesota by intending to aid, “Native families and help tribes, counties, and government agencies by preventing the removal and disconnection of Indian children from their families, culture, and tribes," said Sen. Mary Kunesh, chief author of the bill, in a statement. The bill had passed in the Senate by a vote of 66-1 in February, and on March 9, House members voted 128-0. The bill was signed in House chambers at the State Capitol on Monday, March 13, during Sovereignty Day at the capitol. Governor Walz signed the bill into law on March 16, 2023.
ICWA was enacted in 1978, establishing minimum standards for the removal of Native children from their homes. Among other requirements mandating how courts and parties are to handle Indian child welfare cases, the law also prioritized placing children into homes of extended family members, and other tribal homes before non-relative or non-Native homes could be considered. The placement preferences in ICWA and MIFPA don’t mean that a child must be placed in a Native home, but the process does recognize tribal sovereignty and defers to its authority. ICWA passed into law decades after the federal government began a movement to assimilate Native children into the white America by removing Native children from their homes and placing them in boarding schools and with white adoptive families. MIFPA was adopted in Minnesota in 1985 as a supplement to the federal ICWA by referring to the ICWA within the statute rather than spelling out each of the protections and requirements separately. The new MIFPA law is now a standalone law that does not rely on ICWA as the law in Minnesota. It also added a severability clause that is not contained in ICWA, which means that if a provision or part of MIFPA were to be found, for example, unconstitutional, invalid, or unenforceable, that does not affect the validity of the rest of the statute.
ICWA is now facing challenges on the federal level as the Supreme Court of the United States (SCOTUS) is currently reviewing a case, Brackeen v. Haaland, that will decide the constitutionality of ICWA, (see story in the December 2022 issue of the Inaajimowin. https://tinyurl.com/23fy5wbw). So, if ICWA is ruled to be unconstitutional, that could leave Minnesota tribes and families with stripped-down protections left over in the state statute that do not refer to the ICWA as the law to follow. Native nations across the country are watching the case closely as the outcome has the potential for far reaching damage, not only to Indian child welfare, but to other areas of Federal Indian law as well.
Minnesota tribal leaders have been working on ways to strengthen and preserve the Indian child welfare laws in Minnesota for several years. The ICWA Advisory Council requested a work group be brought together of tribal attorneys, social service directors, and other stakeholders to review and recommend revisions to the Tribal State Agreement and then MIFPA. The work group was in the process of reviewing the Tribal State Agreement, but “Once we knew the Supreme Court was going to hear the Brackeen case, we shifted gears to focus 100 percent on revising MIFPA,” said Angel Daher, Managing Attorney for the Office of the Solicitor General and a participant in the work group.
The work group found sponsors for the bills that heighten the standards of MIFPA in Minnesota. Sen. Mary Kunesh authored the bill in the Senate (Senate File 667) with co-authors Seators Abeler, Wiklund, Hauschild, and Oumou Verbeten. In the House, Rep. Keeler signed on as an author (House File 1071) along with co-authors Representatives Becker-Finn, Kozlowski, Hortman, Pinto, Tabke, Freiberg, Stephenson, Hudson, Bliss, Greenman, Hemmingsen-Jaeger, and Agbaje.
Chief Executive Benjamin, along with other tribal leaders, testified in the House committee hearing. “House File 1071 ensures that all of the provisions of the Indian Child Welfare Act are expressly stated in Minnesota law to ensure continued protections for American Indian families and the 11 tribes in Minnesota,” Chief Executive Benjamin said.
“Many of the policies that were created in an attempt to assimilate American Indian people and families failed or caused great harm,” Benjamin said. “Boarding schools and the policies of removal and relocation of American Indian people disrupted our family structures and our cultural teachings and way of life. Every Native American family at Mille Lacs had a relative or Elder taken from the family and sent to boarding school.” She added that standards included in MIFPA include: ensuring stability and security within Indian families; guaranteeing that tribal governments have a role in keeping Indian families together; and helping Indian children retain their cultural identity and heritage.
While the fate of ICWA remains uncertain until SCOTUS reaches a ruling, the passing of the revised MIFPA is a huge step forward for ensuring continued protection of Minnesota Indian children and families.
The full revised bill can be found at https://tinyurl.com/ycu4392e