New Mexico can provide support for Native families and their children this legislative session — perhaps in the nick of time, depending on the Supreme Court.

Currently, federal law requires that before Native children can be taken from their family, the tribe must be brought into the discussion. That’s to ensure children aren’t summarily removed from their families and culture, as had happened for decades. To tribal members, the theft — and that’s what it often was — of Native babies and children served as a new sort of genocide, decimating culture as children were raised without tradition and language.

According to the National Indian Child Welfare Association, at one time, from 25 percent to 35 percent of all Native children were being removed, with 85 percent of them placed outside their families and communities. That took place even when willing and able relatives could care for the children.

Thus, in 1978 the Indian Child Welfare Act was enacted into federal law “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.”

However, enforcement of the law often has been weak, and a current lawsuit could result in the Supreme Court finding the statute unconstitutional. Already, the 5th Circuit Court of Appeal has found portions of the Indian Child Welfare Act unconstitutional. As a result, both sides of the case — Brackeen v. Haaland — have asked the Supreme Court to hear the case, which centers around a 10-month-old Navajo boy and an Anglo couple’s attempt to adopt him. A decision on whether the Supreme Court will take the case is expected soon.

Texas, Indiana, Louisiana and individual plaintiffs are alleging the federal statute violates the constitutional prohibition on racially discriminatory laws. The Supreme Court has ruled traditional interpretations of equal protection law do not invalidate statutes passed to benefit tribal members and tribes — these laws are not racially based, in other words. But a Supreme Court can — and has — changed its mind before.

That uncertainty is why the Legislature must pass the Indian Family Protection Act, which will offer support under state law for children, families and their tribes. The legislation, House Bill 135, would provide the Children, Youth and Families Department guidance on what to do should the government need to intervene in a family setting to safeguard a Native child.

Tribes or pueblos would be notified if one of their children is at risk, and should removal be deemed necessary, the state would work with the tribal community for placement — extended family, friends or a Native foster family.

Rep. Georgene Louis, D-Albuquerque, is sponsoring the bill in the House, where it passed late Saturday and now goes to the Senate. Louis, a lawyer and Acoma Pueblo member, sponsored similar legislation in 2021.

Gov. Michelle Lujan Grisham placed the measure on the call for the short session, recognizing that the right of tribal communities to safeguard children remains at risk. It’s much the same thinking that led the Legislature to repeal a law essentially banning abortion — act before the Supreme Court does.

Former Pojoaque Pueblo Gov. Joseph Talachy, who testified last year in support of similar legislation, made his case from personal experience. Born in 1981 to a single Pueblo mother away from New Mexico, he was adopted at his home — Pojoaque Pueblo — because social workers reached out to his tribe as required by the Indian Child Welfare Act.

Four older siblings were not as fortunate; Talachy searches for them still.

Talachy told of a 4-year-old with the cognitive ability of a 2-year-old after an early life in foster homes and orphanages. Being embraced by his family and his community changed his life. Today he is a successful tribal leader, business owner, husband and father: “It took an entire tribe to raise me”

All Native children need such support. The Indian Family Protection Act is designed to make sure they get it.

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