Legislature unanimously enacts Sen. Bailey bill to create the Maine Indian Child Welfare Act

Posted: June 23, 2023 | Senator Bailey

AUGUSTA – On Thursday, the Maine Senate and House enacted a bill from Sen. Donna Bailey, D-Saco, that would enshrine protections for Maine Indian children and their families into state law. LD 1970, “An Act to Enact the Maine Indian Child Welfare Act,” received unanimous support in both chambers, including a unanimous roll call in the Senate.

Senator Donna Bailey

“When national and federal policies feel uncertain, it’s imperative for us to act. That’s what this bill was about — ensuring that, at least in Maine, there would be no backsliding on the necessary policies we need to protect Indian children, their families and ultimately their cultures,” said Sen. Bailey. “I’m grateful that this bill received such clear, bipartisan support.”

The Maine Indian Child Welfare Act would establish procedures and standards for cases concerning custody proceedings, foster care placements, termination of parental rights and adoptions involving Indian children.

In 1978, Congress enacted the Indian Child Welfare Act to address policies and practices that resulted in the wholesale separation of Indian children from their families. State and private agencies were removing as many as 25 to 35% of Indian children from their families and placing many of these children in non-Indian foster and adoptive homes. Congress determined that cultural ignorance and biases within the child welfare system were significant causes of this problem. In light of this, Congress recognized that it is in the best interest of the child to maintain Tribal connections and that children are vital to Tribes’ continued existence. The ICWA aims to “protect the best interests of Indian children and promote the stability and security of Indian Tribes and families.”

The Federal ICWA governs State child-custody proceedings in multiple ways:

  • Recognizes Tribal jurisdiction over decisions for their Indian children;
  • Establishes minimum federal standards for the removal of Indian children form their families;
  • Establishes preferences for placement of Indian children with extended family or other Tribal families;
  • Institutes protections to ensure that birth parents’ voluntary relinquishments of their children are truly voluntary.

A recent US. Supreme Court, Haaland v. Brackeen, created concern over the future of ICWA. Depending on how the court ruled, important safeguards for custody and child welfare proceedings involving Indian children and families could have been eliminated. The Supreme Court’s ruling in the case earlier this month left ICWA intact. 

LD 1970, which is supported by the Maine Office of Child and Family Services (OCFS), will enshrine these protections in state law, ensuring continuity in Maine, regardless of any changes on the national level. The committee amendment adds an emergency clause, ensuring the bill will take effect immediately upon becoming law.

LD 1970 now goes to the desk of Gov. Janet Mills, where she has 10 days to either sign it into law, veto it or allow it to become law without her signature.