The Supreme Court issued a landmark victory for tribal sovereignty by rejecting all the constitutional challenges to the Indian Child Welfare Act (ICWA) in Brackeen v. Haaland, requiring state courts to make active efforts to protect Native children and keep Native families together. Congress passed ICWA in 1978 to address the nationwide crisis of state child welfare agencies tearing Native children from their families and placing them in non-Native homes, in an attempt to force Native children to assimilate and adopt white cultural norms.

Since 1978, 14 states have passed their own state ICWA laws to strengthen the implementation of all aspects of the Indian Child Welfare Act. Now that the Supreme Court has reaffirmed ICWA, it is time for states to take action and pass their own state laws building on the protections in the federal law. The map below shows where states have already enacted such state laws.

Fighting to Keep Native Families Together
Wisconsin enacted a state ICWA in 2009 to protect Native children and recognize placement preferences created by tribal governments. Residents of states without an ICWA law on the books can email your state representatives and urge them to pass or update their state ICWAs.

Along with essential procedural protections, the federal ICWA created a placement preference to promote the stability and security of Native American tribes and families. For any adoption of a Native child under state law, preference must be given to placements with: (1) a member of the child’s extended family; (2) other members of the Native child’s tribe; or (3) families from other Native American tribes. The majority of state ICWA laws incorporate identical or near-identical placement preference language as the federal ICWA, with a few exceptions. For example, some states prioritize placements with families of other Native American tribes that are of similar cultures to the Native child, while other states create a fourth preference for non-Native families that are committed to maintaining the child’s connection to their tribe and culture.

The devastating impact of the American addiction crisis needs no explanation. By now, it seems like many of us have been affected in some way. We have spent decades fighting, and failing, to fix this collective problem. 

While we waged a War on Drugs that resulted in an utter catastrophe, countries that have taken a less punitive path have fared far better. In places like Portugal, a nation that has chosen to heal addiction rather than criminalize it, rates of substance use disorder and overdose deaths have fallen precipitously.

Despite overwhelming evidence, many of our elected officials double down on the myth that we can incarcerate ourselves out of addiction. In March, the Wisconsin State Senate passed Senate Bill 101, which would allow anyone who provided drugs to a person who later fatally overdosed to face a reckless homicide charge and up to 60 years in prison. The State Assembly will vote on SB-101 this Wednesday, June 7th.

Lawmakers argue that the bill will target drug kingpins and mass distributors, but the way the legislation is written, as well as how similar policies have been enforced, this law could be used to lock up friends, family, and romantic partners of people who die of an overdose. Len Bias laws – as these statutes are commonly known – can criminalize people who don’t need to be, and they do so without reducing the problem.

A 2018 report from the Pew Charitable Trusts found that higher rates of drug imprisonment did not translate into lower rates of drug use, arrests, or overdose deaths.  So if the increased penalties don’t deter dealers or users and –  more incarceration may lead to more drug misuse – what are Wisconsin lawmakers trying to accomplish?

Between 2014-2017 nearly 10,000 Wisconsinites died due to overdoses. The Len Bias Law and added penalties will likely lead to more Wisconsinites dying of overdose because they will hesitate to call 911 fearing incarceration. Creating more fear and paranoia around interacting with emergency responders during a crisis will only hurt our communities more.

Harsh punitive tactics and mass incarceration approaches to drug policy do not work. “We could increase prison sentences 10-fold, cut them by half, triple them, then eliminate them, and all those changes would do absolutely nothing to protect our families and loved ones from future fentanyl tragedies,” said Tyler Pendergrass, former Director of Advocacy at the ACLU of Colorado. 

Even those responsible for writing former mandatory minimum sentencing drug laws regret their participation. Eric Sterling, the special counsel to the U.S. House Committee on the Judiciary from 1979-1989, now advocates against those bills. He speaks about how representatives in the late ‘80s knew these laws would kill their constituents but did not care because it allowed them to look tough on crime. He even tells a story of how one representative celebrated drug users dying because “it will resolve” the drug crisis if they all die out. 

If one of the people who wrote these laws is admitting that these laws kill people, then why are Wisconsin legislators arguing that increasing penalties will save more lives? If we want to save lives, we must stop scapegoating drugs and address the issues that cause people to need drugs to escape from their lives.

Urge Governor Evers to reject SB-101 and stop investing in policies of the past.

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