North Dakota’s first Indian Child Welfare Act Court could be established in Northeast Judicial District

BISMARCK — With the passage this week of a budget bill amendment that would allocate funding to specialized courts throughout the state, the Northeast Judicial District is one step closer to establishing an Indian Child Welfare Act Court in North Dakota.

The $125,292 allocation was previously removed from SB 2002, but after being asked to reconsider, the Education and Environment Division of House Appropriations added it back into the budget during a Tuesday committee hearing.

"If this is implemented, we would be the first ICWA Court in North Dakota — really addressing those unique needs of Native American families and upholding the intent of the law, which is to preserve those cultural connections and family unity whenever possible," said Heather Traynor, who works for the North Dakota Supreme Court's court improvement program. She testified in favor of the funding allocation.

Though they make up approximately 6% of the state's population, Indigenous youth account for 26% of its foster care population, Traynor said. There have been many efforts throughout the last 15 years to determine how this disproportionate rate can be reduced.

Traynor, and others, believe ICWA court could be an answer.

The ICWA, a federal law established in the 1970s, was a response to the "unwarranted removal of Indian children from their families and tribal communities in alarming numbers," according to the ICWA Law Center, an Indigenous legal services nonprofit organization.

Highlights of the act include recognizing tribal sovereignty, preserving Indigenous families and recognizing tribal and familial connections.

It requires higher levels of engagement to keep families together and, if that is not possible, to keep them within or otherwise connected to their communities, Traynor said.

The act describes placement preferences for Indigenous children as the following, in order of preference:

1. A member of the child's extended family;
2. an Indigenous foster home licensed, approved or specified by the child's tribe;
3. an Indigenous foster home licensed or approved by an authorized non-Indigenous licensing authority; or
4. an institution for children that is approved by a tribe, or operated by an Indigenous organization, and has a program suitable for the child's needs.

The ICWA does not apply to all Indigenous youth. Rather, it applies to those who either are enrolled with a tribe or are eligible for enrollment, Traynor said.

"With ICWA, we look to protect the best interests of Native American children, and prevent unnecessary removal," she said. "That's why it was put into place. But it's important that we focus on these efforts once they are removed, so that they can maintain that cultural connection with their Native American families and communities."

Across the 23 states that have established their own ICWA courts as an intervention tool, the goal of timely permanency has been found to be more attainable, Traynor said.

Permanency is a living situation that is permanent and stable, and ideally preserves existing familial connections, according to the Child Welfare website, an official website of the Children's Bureau and Child Welfare Information Gateway.

Benefits of an ICWA court would include the opportunity for a more family-based approach with earlier intervention and consistency in scheduling that would allow for a tribal presence at hearings, Traynor said.