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Indian Child Welfare Act not followed in S.D.

PIERRE, S.D. - South Dakota Social Services has been criticized for not following federal law they claim to abide by in the adoption of American Indian children.

Over and over Virgena Wieseler, administrator for Child Protection Services told state legislators that her department followed the rules of the Indian Child Welfare Act. But witnesses had other opinions.

Witnesses complained to the legislators that Social Services removed children from homes, never contacted the extended families and subsequently put children up for adoption. Now family members are frantic looking for those children.

"I had a nephew and a niece taken to the eastern part of the country and no one gave up parental rights and we were never contacted," said Twyla Brown Turney, Oglala Lakota member.

She said Social Services walked into the home and removed the children and the grandparents nor the rest of the family knew what had happened.

"We may not have new cars or maids. We have our grandchildren at home and the more the merrier. Social Services says each child needs their own bedroom, but we can sleep on the floor and they never complain.

"Social Services doesn't understand us," Brown said.

Wieseler said her department tries to find significant people in the child's life and talk to them. The department can put the children in a family's custody through kinship placement or as a licensed foster care family.

"We evaluate kinship families. We do look at the distance traveled. If the family is 200 miles away it may not work. We want to know if the family can protect the child," Wieseler said.

"We look at the relationship between the child and the family."

But in case after case, children are still removed from the American Indian Family by court order or Social Service directive and family members claim they were never notified of the action. In one case, a family was refused custody even though the child had lived with them.

Webster Two Hawk and his wife Marge have for five years attempted to have their granddaughter returned to them. Karrisa Dillon, 13, lived with them for eight years.

"We are the only family she knew. We didn't harm her, one other person did," Webster Two Hawk said.

"She suffers from [Fetal Alcohol Syndrome]. Her mother sentenced the child for life. Her mother didn't want her and now she has disappeared," he said. "We hope to get her back and we will not stop."

Wieseler said she would not speak to any specific case because of the confiden-

tiality issue.

ICWA was passed in 1978 in response to a large number of American Indian children being removed from homes and put up for adoption with non-Indian families, for the child's best interest.

In 1997 the Adoption and Safe Families Act was passed, which takes into consideration the best interest of the child. Tribal members and some legislators were interested to know if that act had taken precedence over the ICWA.

Wieseler said there was a national debate over the two acts to decide which one trumps the other. A judge makes that decision, but in her opinion ICWA still ruled.

"No act overrides ICWA," said Rep. Tom Van Norman, Lakota, D-Eagle Butte.

Tribes can intervene in a custody case in order to keep the child within the tribal structure, but the tribes need to be notified at every step of the process. That, Wieseler said is part of the department's procedure.

"I can't urge enough how South Dakota violates ICWA constantly," said Jennifer Ring, executive director of the ACLU of the Dakotas.

"American Indians have large extended families. Social Services must do a proper search. There is no reason to place an Indian child in other than an Indian family."

Wieseler said the tribe has the right to ask the state to transfer jurisdiction, but a judge will listen to all the options. If all the ICWA rules were followed the judge can still rule in the best interest of the child, which may be placement with a non-Indian family. She said the state gets involved with the tribe early in the process and continues to update the ICWA officer on

the proceedings.

Two Hawk said that in their case the ICWA office at Rosebud changed and the new office didn't pay close attention to their case.

Sen. Mike LaPointe, Sicangu Lakota, R-Mission, said that in the case of a child that is living off the reservation the tribe must be notified in a timely manner, but in some cases the issue "comes up at the last second."

"I have heard complaints that indicated the state notified the tribe at the last minute. Maybe we could do something with legislation to change that," LaPointe said.

Wieseler said a concern is involvement rather than timeliness. She said it was difficult when the tribe did not get involved at the beginning of the process.

Wieseler said there could be more discussion between the tribes and the state. "We can get a long list of relatives for children that are up for adoption and we continue to search for relatives. The adoption goes through the same process with foster families."

During the 2003 legislative session, an act that provided for placement preference to an available and qualified relative and to provide standing to certain relatives to petition for adoption when parental rights had been terminated passed.

Wieseler testified against the bill in committee and said the department already prefers relatives in adoptive cases.

Marilyn Runs After, Cheyenne River Sioux Tribe, said her brother who is in Sandstone federal prison in Minnesota did not relinquish custody of his children and has asked where they were. "They were adopted. There are a lot of relatives in Cheyenne River and Pine Ridge but they didn't ask us. I would like to see my niece and nephew."

Maria Little Shell said DSS took her granddaughter away and the family is still looking for her.

"The last we heard she was in California. She's six-years old. The parents did not give up parenting rights and we want her back," Little Shell said.

The State Tribal Relations Committee will meet on Jan. 14 and 15 and will again take up the issue with Social Services.