State Bill Extends Montana Indian Child Welfare Act

A bill revising the Montana Indian Child Welfare Act — a priority bill this session for the Montana American Indian Caucus — was signed into law in May, though in a much weaker form than initially proposed.

Montana’s Indian Child Welfare Act is an extension of the federal Indian Child Welfare Act, which aims to protect Native children by giving their tribe and family opportunities to participate in adoption and foster care decisions. ICWA was enacted decades ago in response to the disproportionately high number of Native American children placed in non-Native foster or adoptive households. When the federal law was enacted in the 1970s, about 75 to 80 percent of Native American families living on reservations nationwide “lost at least one child to the foster care system,” according to a report from the Montana Department of Public Health and Human Services.

Even under the federal law, Native children remain disproportionately represented in child welfare systems. While Native American children in 2020 made up about 9 percent of Montana’s child population, they accounted for 35 percent of the state’s foster care population, according to the Montana Judicial Branch Court Improvement Program.

In 2023, when the future of the federal law was in limbo, the Montana Legislature and several other states wrote ICWA protections into state law. Montana’s ICWA law, however, was set to sunset this year.

That’s why Sen. Jonathan Windy Boy, D-Box Elder, Chippewa Cree, proposed Senate Bill 147, which removes the termination date from past MICWA legislation and extends the policy until June 2029. Gov. Greg Gianforte signed the bill May 12.

“There is no asset more valuable to our future than our children,” Windy Boy said during a February hearing in the Senate chamber.

Windy Boy told lawmakers in a January committee hearing that after his daughter died, he raised his seven grandchildren, ages 2 to 16. If his grandchildren were in the foster system, Windy Boy said they’d risk losing their connection to family, culture, community and identity.

“You better believe it that I’m going to make sure that my grandsons, my granddaughters are going to learn my ways,” he said.

In its original form, SB 147 included provisions like compacts aimed at ensuring children stay connected to their culture. If a Native child was placed with parents or guardians who were not members of the child’s tribe, earlier versions of SB 147 stipulated that the guardians enter an agreement or “cultural compact” with the child’s tribe at the court’s discretion. In the agreement, both the child’s guardians and tribe would document how the child was learning about their culture, participating in cultural activities and engaging with family members.

After the bill passed the Senate for the first time in February on a 30-19 vote, it was transferred to the House Human Services Committee. There, lawmakers approved an amendment that significantly altered the legislation, a change they said was largely due to cost.

A fiscal note prepared by the governor’s budget office estimated the bill as originally proposed would cost the state a little more than $210,000 each year to implement. Lawmakers said the note was added to account for additional court hearings and processes that would accompany the cultural compacts and other now-eliminated provisions.

Windy Boy told the House Appropriations Committee on April 9 that he did not intend for the bill to come with additional costs to the state.

During the House committee hearing April 7, Rep. SJ Howell, D-Missoula, said the language that was cut from the bill should be “something that this body should seriously consider, if not now then in the future. I think it would be a shame to see all of that work left to the wayside.” The amendment to dramatically reduce the scope of the legislation, which transformed the 27-page bill to a two-page document, passed 21-0.

Windy Boy in an interview with Montana Free Press and ICT said the amendment was driven by concern about the bill’s original cost and a misunderstanding of culture compacts. The bill’s passage, he added, “was probably the best we could do this session.” After the House passed the amendment, a new fiscal note estimated the policy would cost nothing to implement.

Windy Boy said he plans to introduce similar legislation next legislative session and hopes to find a group of lawmakers that will be more receptive to the bill’s intent.

( This story is co-published by Montana Free Press and ICT, a news partnership that covers the Montana American Indian Caucus during the state’s 2025 legislative session.)