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Tribes: South Dakota fails in foster placement

March 26, 2013
Written by: John Hult

Few decisions made by the state of South Dakota carry the emotional weight of removing a child from a home.

For Native American children, whose culture is scarred by a troubling history of forced displacement by whites, the decision has emotional and legal implications.

Federal law says native children belong in native homes except in the rarest of circumstances.

The state says officials do all they can to ensure Native children are placed in appropriate homes and move quickly through the system.

But the tribes disagree, and recently some sued, alleging more must be done.

It’s been almost 35 years since South Dakota Sen. Jim Abourezk and his colleagues passed the Indian Child Welfare Act. In 1978, when the act was passed, Native children were pulled from homes at an alarmingly high rate, and 80 percent to 90 percent of the children were placed in non-Native homes.

The numbers barely have budged.

“It was supposed to be that if an Indian child needed to be taken from the home, the tribe would be the one to do it,” Abourezk said last week.

South Dakota lags behind other states in making that happen. More than half of all children in foster care in the state are Native American, according to the National Council on Juvenile and Family Court Judges. It’s a figure matched only by Alaska.

Tribes assert jurisdiction in cases involving Indian children, but the state still is in the lead much of the time. Full funding for child protection services is beyond the reach of many tribal budgets, and federal foster care dollars are tied to tribal agreements with the Department of Social Services.

If a Bureau of Indian Affairs officer suspects a case of neglect, the state Department of Social Services often is called. Tribal courts often place children in Department of Social Services foster care, despite knowing that 80 percent of them will end up in white homes.

South Dakota began to take steps to comply with the spirit of the law barely more than a decade ago, transferring more cases to tribal court, hiring specialists with the Indian Child Welfare Act and kinship placement specialists at the state level and trying to recruit more Indian foster families.

The steps have been smaller than tribal leaders want, however.

Two tribes sued the state in federal court last week over temporary custody proceedings, alleging a systematic violation of due process rights that keeps Indian children in foster care unnecessarily. More lawsuits are pending. A Rapid City summit in May will bring all nine of South Dakota’s tribes to discuss the problem.

Opportunities to strengthen the law

In 2004 and 2005, legislators rejected comprehensive bills to strengthen the Indian Child Welfare Act, gutting the first and voting down the second. Minnesota, which also removes Indian children at disproportional rates, passed such a law in 1997.

“This is one of the states that should be first and foremost in understanding ICWA, but it’s one of the hardest to work with,” said Jolene Abourezk, an ICWA director for the Oglala Sioux, who is not related to Jim Abourezk.

Diane Garreau, ICWA director for the Cheyenne River Sioux Tribe, helped write the 2004 proposal. She has worked for social services and now works with the department on cases involving Cheyenne River tribal members. She said things are better but that South Dakota hasn’t come far enough.

The act was intended not only to recognize and respect tribal autonomy and preserve culture, Garreau said. It was a response to a brutal history of displacement, she said, an assurance that the past would not repeat itself.

Boarding schools, other issues

Garreau is referring to a boarding school in Chamberlain. She spent two years there as a child, saying she survived “the tail end of the bad boarding school days.”

Tens of thousands of Native children in the late 1800s and early 1900s were forcibly removed from their homes, stripped of their culture, given new names and raised as whites. The “bad boarding school days” continued for decades after the renaming stopped. Native American children still were taken from their homes, Sen. Abourezk said, ostensibly in their best interest.

He credits a “white is right” mentality to the placements of the 1970s. Those who testified for the act told the Congress that maintaining a cultural identity could not be divorced from the definition of “best interest.”

“We heard that even if the mother is an alcoholic, it’s better for the child to be with her than it is to place that child in a white foster home away from the culture,” he said.

The act gave tribes the right to intervene in any state court abuse and neglect proceeding involving an Indian child, raised the bar for the termination of parental rights in state court from a standard of “clear and convincing evidence” of future harm to “beyond a reasonable doubt,” and mandated that Native American parental rights could not be terminated unless “active efforts” had been made to reunify Native American families.

It also set forth a standard for placement of children who are removed. Before placing a child in a non-Native foster or group home, states are supposed to look to extended family, members of a child’s tribe, other Native families and tribal foster placements before turning to non-Native placement. Placement in a white home is acceptable only in exceptional circumstances.

Danny Sheehan of the Lakota People’s Law Project, said Native children still are held away from their culture because of racism. Sheehan’s group represents parents who have had their children removed and is preparing legal action across the state.

Native children are taken from living situations where white children would stay, he said.

“There is clear and convincing evidence that from the bottom all the way to the top, (the state) feels that Native people are irresponsible,” Sheehan said. “They know exactly what they’re doing, there’s a half dozen things they could be doing to fix it, but they won’t do them.”

State says it's trying to do better

Virgena Wiesler, the state’s head of Child Protection Services for the Department of Social Services, said the charge simply is not true.

The state recognizes that too many Native children are in non-Native care, and Wiesler said the state is trying to solve the problem.

“The department is willing to reach out, and has reached out,” Wiesler said.

In 2004, Gov. Mike Rounds called for an ICWA commission to study compliance. The group pulled the National Center for State Courts to study foster care placements and ICWA compliance.

The commission ultimately made 30 recommendations, including that the Department of Social Services hire an ICWA director and kinship specialists to aid in the placement of Native American children. The state now has four kinship specialists who work with parents and children to find family members for placement, Wiesler said.

To 'stay with their family' in safe home

If a relative can care for a child, she said, the department does a criminal background check on the relative and a safety walk-through of the home. If the relative is close to the child, she said, the child stays with that relative while a home study is completed.

“Every kid deserves to stay with their family in a home that is safe,” she said.

In addition to working with tribal representatives, the ICWA director trains every new Department of Social Services employee on cultural sensitivity and updates an ICWA employee reference guide each year.

The state also is constantly recruiting and training families to do foster care, Wiesler said, and the department invited tribes to a symposium last fall, led by the National Resource Center for Tribes, designed to train more people to do foster care preparation classes on reservations.

“If we can increase the number of people who can do the training, hopefully we’ll see more homes open up,” she said.

Federal money is available to foster homes that meet state foster care standards, she said, and tribes that have agreements with the Department of Social Services can set their own standards for suitability of homes.

Federal money can flow only to tribally registered foster homes if there’s an agreement with the state, however, and adults in the foster home pass state and federal background checks regardless of tribally defined standards.

That puts Garreau in a rough spot. The Cheyenne River Sioux Tribe doesn’t have an agreement with the state, and the state foster home requirements for income and living space don’t match with reservation life.

When Garreau decides whether to request a transfer to tribal court for a Cheyenne River child, she needs to know that there’s a family member close enough to the child to receive federal benefits for taking a child in.

Otherwise, there’s no money to help a potential foster parent pay for the extra mouth to feed.

“Once they’re transferred, the (federal) money stops,” Garreau said. “I have to be really creative in dealing with kids.”

Since 2009, tribes have been eligible to apply directly for federal money for foster home help, but Wiesler said no tribe has taken that step.

Transferring cases to the tribes

The state also transfers more cases to tribes than it once did. In 2009, the first full year the state tracked the numbers, 183 cases were transferred to tribal court. Last year, the number was 247.

ICWA directors get a monthly report identifying children who don’t transfer. The reports include placement, months in custody, permanent plan, last court hearing, type of court hearing, and Department of Social Services worker assigned to the case.

Department of Social Services numbers show that Native American children removed from a home are reunified with their families one month sooner, on average, than non-Native children.

Things have improved since 2004, Jolene Abourezk said. She worked for the department from 1995 to 2002.

“I can’t recall any of my cases transferring to the tribe,” she said of her time as a state employee. “When I think back to it now, it’s amazing. Now, when I work with ICWA, we transfer cases all the time.”

Even so, some steps have not been taken. In 2005, a comprehensive Indian Child Welfare Act proposal, one that would have solidified the law’s primacy at the state level, met resistance from the Department of Social Service and the attorney general.

The provisions would have made it clear that the state court has no authority to interpret the applicability of the ICWA in state cusody proceedings. It would have opened case files and reports to relatives seeking to care for a child removed from the home.

Prosecutors testified against it, as well, saying pushing beyond the federal law would be too difficult to implement.

“We don’t have the resources to implement the law as it currently exists, let alone the requirements of this bill,” said Chuck Shroyer of the State’s Attorney’s Association.

The bill died in committee, with sponsors Thomas Van Norman and Jim Bradford, representatives of reservation districts, arguing passionately for passage.

“Folks, this is a federal law. If the governor said ‘We gotta do it or we’ll lose our federal highway money,’ we’d do it,” Bradford said during the hearing. “We’d drop the limit to 55 again.”

'Kids are still caught in the system'

Last week, Van Norman said he remains troubled by the halting pace of progress in a state with such rich tribal heritage.

“It’s incredible that the law that’s causing all this controversy right now is 35 years old,” Van Norman said. “Kids are still caught in the system a lot longer than they need to be.”

In their lawsuit, the Rosebud and Oglala Sioux tribes allege regular violations of due process rights and the Indian Child Welfare Act at 48-hour emergency placement hearings in Pennington County. Judges there routinely sign orders that can keep children away from their parents for two months without allowing the presentation of evidence, the lawsuit says.

The South Dakota Supreme Court ruled last year that the ICWA does not apply to the emergency stage of a child neglect proceeding, rejecting an appeal from the Cheyenne River Sioux Tribe that sought a full hearing on the facts of the removal within the 60-day period.

The lawyer who filed that appeal, Dana Hanna, said that full hearings would put more kids home more quickly. Many of the 60-day placements are unnecessary, he said.

Shannon Smith, director of the Indian Child Welfare Act Law Center of Minnesota, said the state has defined “best interest” of a Native American child in culturally appropriate terms and worked to implement the spirit of the federal law.

“ICWA really lays the floor for what states have to do,” Smith said. “We’ve affirmed the fact that following the mandates of ICWA really is in the best interest of the child.”

Minnesota still has Indian children disproportionately represented in the foster care system, but protections are built in. At 72-hour emergency hearings, Smith’s lawyers will speak on behalf of parents, and the tribe’s representative can speak, too.

“We basically have an opportunity at that first hearing to bring the child home,” she said. “What’s different in Minnesota is that everyone has the chance to be heard.”

Hanna concedes that the Department of Social Services is working to protect children but said the importance of Indian culture to Native children is undervalued.

“Everybody involved in this believes they’re doing the best thing for Indian children,” Hanna said. “But what the white bureaucracy doesn’t understand is the damage that is done to these kids through placement in strangers’ homes.”

“If the parent is getting drunk, do they really need to lose their kids for 60 days?” Hanna said. “It’s just crazy.”

A National Public Radio report about the large number of Native American children in foster care caught the attention of Congress. Sheehan’s group collaborated on a report to Congress that claims South Dakota removes children to pull in more federal dollars, an accusation the state has lashed back against.

Minnesota, New Mexico and Oklahoma have strengthened the law in ways similar to what Van Norman and Bradford called for eight years ago.

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