A pair of South Dakota House bills designed to codify aspects of the federal Indian Child Welfare protections in state law failed to pass on Monday, Feb. 6.

One of them would have bumped up requirements for the Department of Social Services to keep Native children with their families and tribes. The other outlined placement preferences for all children, regardless of race, to keep them in their communities when they’re removed from their homes.

House Bill 1229, the bill to give first preference for foster or adoptive placements in communities, did not make it through the House Judiciary Committee Monday morning. Later in the day House Bill 1168, to raise the standard for DSS efforts, died on the House floor by a vote of 38-30.

Opposition in both forums centered on an appeal currently before the U.S. Supreme Court that challenges the constitutionality of the federal ICWA law.

On the House floor, Rep. Tony Venhuizen said if the bills become state law and then the Supreme Court finds that ICWA is unconstitutional, the state will have passed potentially unconstitutional laws.

“So as important as this issue is, at a time when the law is in flux before the Supreme Court, I would submit that this is not the time to make this change,” he said. “We should wait and see what happens and consider a law like this next year.”

The case before the Supreme Court, Haaland v. Brackeen, questions two primary aspects of ICWA: first, if preferred placement of Native children with Native families or tribes is race based, rather than political, and second, if the federal government, by directing state courts to take certain actions, violates anticommandeering principles.

Rep. Peri Pourier is the prime sponsor of both bills. She argued against Venhuizen’s statement: “We have nine tribal nations. We have citizens of those tribal nations that are South Dakotans. This is not a race-based law.”

As for the anticommandeering aspect, Pourier said the issue there involves federal commandeering of state procedures. She said the state is allowed to commandeer itself by passing these bills.

After the vote in the full House, Pourier said she intends to ask for reconsideration.