After delays, Utah bill to protect Native kids against being removed from their tribes moves forward

If passed, HB40 would enact a state version of the federal Indian Child Welfare Act, or ICWA. Tribal members spoke in favor Wednesday of keeping “these children with their culture.”

Update: HB40 didn’t pass in the 2023 legislative session.

After being hamstrung and held up for weeks, a Utah bill that would prioritize the placement of American Indian children in adoptions and with foster families within their cultures — regardless of what happens with federal law — passed through committee Wednesday.

The measure, HB40, moves next to the full House for consideration. At this stage, it faces a bit of a uphill fight in getting the necessary votes there and in the Senate in the less than two weeks before the session ends.

But proponents — including members from the sovereign tribes across the state — pleaded with lawmakers Wednesday to support the bill and move it forward quickly.

Dominique Talahaftewa, who is Hopi and Ute, told the committee Wednesday about how her mother and her mother’s siblings were removed from their home in the Uintah Basin as kids in the 1950s and all placed separately with white families.

The children were isolated from their land and parents, couldn’t speak their language and didn’t practice their culture. They were assimilated with “forced teachings of other ways” in their placements, Talahaftewa added; her mom has additionally recounted that she was abused.

It was traumatic, Talahaftewa said, and continues to impact them today. She said her mom is now 68 years old and the pain from the experience has stayed with her, and has been passed down through generations.

“It does trickle down, the effects of the disconnect from your family and culture,” she said, noting that she feels it now in her own life. “There’s a sense of identity loss that she suffered. … That’s dangerous.”

Talahaftewa encouraged the committee to have “open hearts” in passing HB40 — which has the support of all the eight tribes in Utah, who gathered late last month at the Capitol to speak out against the “injustice” of delaying the measure. Lawmakers responded with a 13-0 vote in favor Wednesday.

(Rick Egan | The Salt Lake Tribune) Eugenia Charles Newton, a delegate of the Navajo Nation Council, encouraged Utah lawmakers to consider a bill to make ICWA into state law during a news conference at the Capitol on Tuesday, Jan. 31, 2023.

The bill from Rep. Christine Watkins, R-Price, would take the provisions of the federal Indian Child Welfare Act of 1978, or ICWA, which protects against removing Indigenous children from their tribes, and codify it into state law here.

The federal law is currently being weighed by the U.S. Supreme Court over arguments about its constitutionality. It was originally put into place after systems took Indigenous children from their homes for decades in this country and placed them with institutions or families with no ties, where many children reported abuse.

This followed the decades when many Indigenous children were placed in boarding schools, where they were stripped of their culture, beaten for speaking their language and had their hair forcibly cut short. There were at least eight of those institutions in Utah, run with the goal of assimilating Indigenous children into white society. At one former site in Panguitch, the Paiute tribe is currently working to do ground survey work to locate 12 missing kids who likely died from the rough conditions at the school in the early 1900s.

Under ICWA, Native kids that are placed for adoption or put in foster care are meant to be kept with Native parents — preferably with someone from their tribe or, if not possible, with another tribe. It prioritizes family connections. Non-Native foster parents are a last resort.

Indigenous parents help kids say in touch with their identities, said Denae Shanidiin, who is Diné, or Navajo, as well as Korean.

Taylor Thorne, also a member of the Navajo Nation, said, “It’s what’s best for kids.”

Thorne is the first member of the last four generations of her family to be raised by her parents. Her mother, grandfather and great-grandfather, she told the committee, were all torn from their families as kids. And they all died young from self-harm, which she believes is a result of the trauma.

Her mother, specifically, was removed from her Native home in New Mexico and forced into foster care with a family in Ogden, where her culture was not shared. “My mother’s story is very common,” Thorne said.

Nina Sampson, who is also Diné, said she is willing to be a foster parent to help kids stayed connected to their culture and traditions. Her mother was displaced as a child, too, and she called that “a lonely place to be.”

“I strongly urge you to keep these children with their culture,” Sampson said. “This bill will help support and keep families together.”

The Utah bill to enact ICWA here is supported by the state’s attorney general, governor and lieutenant governor. If passed, that would mean the current rules for Native adoptions would apply here, regardless of if the Supreme Court overturns the federal law.

Tribal leaders and Watkins have spent weeks adjusting the bill to make it more amenable to state lawmakers. In the version passed Wednesday, the effective date was moved up — to June — so there would be no gap between when the high court decides and when Utah law is updated. That was one of the concerns of the committee when HB40 was first brought up earlier in the session.

Republican lawmakers also initially said they were concerned about possible confusions with tribal laws and state laws and how to define “extended family members” with whom Native children can be placed. Clarifications on those terms were added to the reworked bill. For instance, if there is an Indigenous child adoption case brought up in Utah outside of a reservation, it would be transferred to tribal court for jurisdiction and to determine what’s the best placement.

“This bill is the right thing to do,” noted Rep. Mark Wheatley, D-Murray.

Rep. Brian King, D-Salt Lake City, added that it was “shortsighted” in the past for the government not to honor tribal family relationships. Hearing from tribal members Wednesday, he said, “has reinforced how important this is to communities that have traditionally struggled to be heard and that we have struggled to hear.”