Minnesota Representative Heather Keeler (center) addresses a room of community members on March 9, 2023, and explains how the House will review and vote on a bill strengthening the Minnesota Indian Family Preservation Act. Keeler said it isn't often that she has the opportunity to address rooms of people who look like her. Credit: Jaida Grey Eagle | Sahan Journal

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

Well before she became a Minnesota state senator, Mary Kunesh’s great uncle was taken from his home on the Standing Rock reservation and sent 1,500 miles away to the infamous Carlisle Indian Industrial School in Pennsylvania.

He repeatedly fled to his family and tribe in South Dakota, and each time he was forced to return to Carlisle, the first U.S. government-run Indian boarding school. According to the Carlisle Indian School Project, close to 200 school children are buried on school grounds, where forced assimilation meant devastating disease and abusive conditions for students.

Kunesh describes her great uncle’s attendance as costing him dearly. Collie, as she calls him, only returned to Standing Rock for good after he severed his leg falling off a train—a final desperate attempt to escape boarding school.

With that history as backdrop, today Kunesh and Representative Heather Keeler—a fellow member of the Democratic-Farmer-Labor Party—led the state Legislature to approve enhanced protections for Native American families. Kunesh and Keeler sponsored bills in the Senate and House, respectively, that would enhance child welfare protections under the 1985 Minnesota Indian Family Preservation Act, known as MIFPA. 

Dozens of supporters gathered in the state capitol to sing prayers and smudge with sage before the bill unanimously passed Thursday in the House of Representatives. It now goes to Governor Tim Walz’s desk.

  • Lieutenant Governor Peggy Flanagan lights sage inside of an abalone shell on March 9, 2023, and offers community members to smudge while a community member sang a Dakota prayer song. Flanagan met with local lawmakers and community members before the state House's vote on the Minnesota Indian Family Preservation Act.

“This bill says that we agree on Minnesota land that our children deserve the opportunity to have access to their family, their culture, their beliefs, and what I believe is the most beautiful part of Minnesota,” Representative Keeler told lawmakers in advance of the floor vote.

Kunesh, who is of Standing Rock Lakota descent, and Keeler, an enrolled member of the Yankton Sioux Tribe, say their legislation is needed now more than ever. Similar protection enshrined under longstanding federal law is now under threat before the U.S. Supreme Court.

“I knew that we needed to bolster and strengthen MIFPA,” Kunesh said, “so that if it did go away at the federal level, we still had those protections.”

Federal protections at risk

The nation’s landmark Indian Child Welfare Act (ICWA) became federal law in 1978, following centuries of U.S. government policies that sent as many as a third of Indigenous children to Indian boarding schools or foster and adoptive homes with white, Christian families. 

The ICWA is an agreement between the federal government and tribal nations giving tribes the right to take over child abuse and neglect cases from state courts. If Indigenous children are removed from their parents, placement with relatives, tribal members, or Native American families must be prioritized over non-Native homes. Social workers must provide “active efforts” to promote family reunification, including providing parents with assistance such as drug and alcohol treatment, counseling, and domestic violence prevention courses. 

Abuse and neglect cases that do not involve Indigenous children require social service agencies to meet a lower standard of “reasonable efforts” to promote family reunification than the standards applied to ICWA cases.  

But there is growing concern that an ongoing legal challenge now before the Supreme Court, the Brackeen v. Haaland case, could upend these federal protections and threaten Native families in states that have not shored up local laws. 

Minnesota and at least 10 other states are preparing themselves by enacting local legislation to further strengthen the protections now available under ICWA. A handful of other states are considering similar bills this legislative session, including Utah and North Dakota

During recent hearings at the state Capitol, Minnesotans shared wrenching testimony about how historic trends have continued through the modern-day foster care system, tearing families apart.

“I’ve lived the life of an Indian with all the laws that were passed to keep Indian families separated,” Gertrude Buckanaga, an enrolled member of White Earth Nation, told lawmakers last month. “Our family was separated from our parents, our grandparents, our cousins, our aunts, our uncles, and our friends. When we went to boarding school, we were not allowed to visit home.” 

Leech Lake Band of Ojibwe Chairman Faron Jackson Sr. also testified before lawmakers in February. 

“When kids are removed from home, you know what it actually feels like? It feels like a death in the family,” he said. “When kids are taken out of their homes, that’s how painful it is. And we don’t want to see any families have to experience that kind of pain.”

Fortifying state law

Minnesota’s 38-year-old Indian Family Preservation Act would be fortified under the current legislation, Senate File 667 and its companion, House File 1071. Walz (DFL) has several days to sign the bill.

The bill acknowledges “the historical deprivation of rights of Indian people” that has led to disproportionate child removals. It also affirms the “inherent authority” of all federally recognized Indian tribes to handle cases of Indian child custody and child placement proceedings—“regardless of whether the Tribe’s members are on or off the reservation.”

Those rights exist, the bill clarifies, because Indian tribes are “sovereign political entities that predate the existence of the United States and that have retained inherent sovereign authority to pass their own laws, maintain their own systems of governance, and determine their own jurisdiction.”

The text of the law describes Indian children as “the Tribe’s greatest resource as future members and leaders.”

Under the newly passed legislation, there would be more specific protections than in the past—requirements that have been a part of ICWA but weren’t specifically spelled out in the Minnesota version of that law. 

Native parents could withdraw prior voluntary consent to give up their children. Social service agencies would have to apply “active efforts” to preserve family unity, even when tribes did not take jurisdiction of an Indigenous child’s case. 

The definition of a Native foster child’s “extended family” would also be broadened. Caregivers in the child welfare system that would be given priority for foster care placement could include any adult defined by the child’s tribe as extended family, such as grandparents, aunts, uncles, brothers, sisters, brothers-in-law, sisters-in-law, nieces, nephews, first or second cousins, and stepparents, according to the text of the proposed law.

Supporters urge the vote

Residents who urged passage of the Minnesota Indian Family Preservation Act today spoke from first-hand experience about its vital necessity. Maryanna Harstad was in her 20s when she testified before the state Legislature almost 40 years ago, urging passage of the original version of the law.

Harstad, who is an enrolled member of the Leech Lake Band of Ojibwe and a descendant of the Blackfeet Nation, was adopted into a white family. She described her childhood as fortunate, because her white adoptive family was kind and loving. But she nonetheless lost many years of vital connection to her tribes and kin. 

“It’s just really important that we prepare for the possibility of ICWA or portions of it being overturned on a federal level and be ready in Minnesota to protect children here,” Harstad said. 

Alyssa Hocchalter, 21, is far younger but shares a similar past. Hocchalter also braved the snow to come to the state capital in Minneapolis.

“I’m here today because when I was seven years old, I was put in the foster care system,” said Hocchalter, a member of the Oglala Sioux Tribe. It wasn’t until she turned 14 that she was placed in a Native home where she reconnected with her culture, she added. 

High separation rate

The stakes are particularly high for these families in Minnesota—which encompasses 11 federally recognized tribes. The state has the ignoble distinction of having the highest rate in the nation of separating Indigenous children from their families. Native American children in Minnesota are 16 times more likely than white children to be removed from their homes, according to state data.

The Brackeen v. Haaland case, set to be decided by the Supreme Court this summer, could worsen disparities like this in parts of the country where there are no local laws protecting Indigenous families. Lawyers for the plaintiffs—adoptive parents from Minnesota, Nevada, and Texas who sought to adopt Indigenous children— -argue that the federal ICWA law is based on race, not the unique political status of tribal members in the United States. 

The plaintiffs are backed by high-powered conservative think tanks and corporate law firms whose arguments, if successful, could have far-reaching impacts that undermine tribal rights to water, land, and economically vital gaming rights.

Threats to ICWA have supporters of Indigenous rights deeply concerned.

“It’s super scary, because not only am I a mom, but I’m also an auntie. I’m a relative. I’m a sister. So, this has a huge effect on my life,” said Larissa Littlewolf, an enrolled member of the Leech Lake Band of Ojibwe and the associate director of the Tribal Training and Certification Partnership.

Littlewolf has worked in tribal child welfare for over 10 years, and has seen the important role that ICWA and Minnesota’s version of the law have played in reunifying Indigenous families, connecting children to their culture, and strengthening community ties.

“I’ve seen that healing. I’ve witnessed that in the cases that I’ve been on as a social worker, but I’ve also witnessed it in the community,” she said. “Tribes are more invested in their kids and in their community and in their families than any system ever will be.”

Farrah Mina is a Minnesota-based reporter covering child welfare. Before joining The Imprint, Farrah worked as a data reporter at the Kansas City Star. She is a recent graduate of the University of Minnesota...