Justice in Indian country

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Collaborative Circle aids in Indian Child Welfare Act compliance

Editor's note: This week, Indian Country Today continues an ongoing series that examines justice in Indian country. To share your comments, e-mail us at editor@indiancountry.com, using ''Justice'' in the subject line.

RAPID CITY, S.D. - Katie has suffered through foster care and adoption in the past nine years, but her life could have turned out differently given the same scenario because of positive changes in a system, a direct result of collaboration between state and tribes.

Katie (not her real name), now 17 years old, was taken away from her biological family at age nine because her father was charged with and convicted of sexual molestation, rape and pedophilia, which was allegedly perpetrated on Katie and four of her friends. The girls were ages 8 and 9 at the time of the alleged incident in 1998.

Katie was moved from one foster family to another. Some five years ago, she was adopted by a Colorado family that claimed to be American Indian. The adoptive father even said he was a member of the Rosebud Sioux Tribe, Katie's community.

Because the adoptive father claimed to be an enrolled Rosebud member, the Indian Child Welfare Act would have been satisfied; however, it is now known that the adoptive father was not enrolled and had never applied for enrollment, according to the Rosebud enrollment office. The state was duped into believing he was enrolled when he presented a forged enrollment card, according to state officials, and the tribe never got involved in the case.

Marge Two Hawk, a member of the Rosebud Sioux Tribe and Katie's grandmother, argues that the state did not properly communicate with the Rosebud Sioux Tribe as ICWA mandates. She also claims that the tribe did not come to the aid of the child or family in a timely manner. ICWA requires the tribe be notified of a child custody case when it is determined the child is American Indian. The tribe then has the right to intervene in the case.

None of the foster families Katie was given to were American Indian since there are few American Indian certified foster families in South Dakota. The number is now growing. Two Hawk and her family attempted to become qualified to foster Katie as dictated by state Department of Social Services protocol. Two Hawk and her daughter completed programs that would qualify them as foster parents or guardians, but to no avail.

That was a few years ago.

Today, that exact scenario may not have the same outcome in South Dakota, according to Diane Garreau, ICWA director for the Cheyenne River Sioux Tribe. There have been dramatic improvements in the relationship between the tribes and the state over the past five years, yet there is still room for improvement, she said.

Virgena Wieseler, director of child protection for the state of South Dakota agreed. The changes, she said, began after the implementation of a governor's task force came up with a list of issues and recommendations the state and tribes could improve upon when dealing with ICWA and child custody cases.

Wieseler said her department took what they considered to be the top 30 issues from the task force recommendations and began to work. This all started in 2004.

A 38-member Collaborative Circle was formed with tribes, state social services officials and other experts. Each tribe has two representatives; all seven regions of the state social service area are represented.

The circle meets quarterly, but an executive committee meets on a monthly basis. Other states and tribes have similar organizations to improve cooperation, but the circle and the protocol is unique in the nation. The collaboration was formed after a national organization, the National Resource Center, provided assistance in organizing the group.

''I know that so much has changed since I started five years ago. You would not believe how different the state treats us. I won't praise the state; we have a lot of way to go. They had to change, they were made to do it; it was a forced thing.

''I go into the DSS office, I meet with social workers, go over all the cases. That would never have happened a few years ago ... Now we can pick up the phone and say we have a problem with a case worker and it's taken care of,'' Garreau said.

Wieseler echoed Garreau's comments.

''Some supervisors can pick up the phone and call ICWA directors and look for guidance on some cases. There is a comfort level,'' Wieseler said. ''The key to this is a relationship issue. We are building relationships on the ground. From the child protection side, it has made a difference,'' Wieseler said.

Through the Collaborative Circle, a new protocol for the transfer of children to tribal courts has been created that makes the transfer ''seamless,'' Wieseler said.

Significant changes have taken place in the area of kinship placement, and children are now living with their families, Wieseler said.

DSS may have a new approach, but the state courts still need educating, Garreau said. To answer that problem, the circle is putting together a manual on traditions of the tribes with a curriculum to teach judges and expert witnesses. The curriculum will also deal with the understanding of how addictions work.

''It all goes back to the relationship. We come together on a regular basis and discuss what we are going to do together,'' Wieseler said. ''I think the tribes and the state have come a long way.''

The long road began when tribal officials asked for a state ICWA bill to be passed by the state Legislature. Through various hearings where some very impassioned testimony was given by tribal members and officials, the task force was formed.

Garreau provided testimony and was involved with the first introduction of an ICWA bill. Two Hawk also made several trips to the hearings to tell the story of her granddaughter.

With all of the changes South Dakota has made, other states are far behind. Tribes everywhere have to deal with - other than their own state social services - states that do not respond to ICWA. Tribes from across the country have enrolled members who live in many parts of the country; and the tribes maintain a responsibility to those members and especially the children.

Garreau said Wyoming is difficult; some states on the East Coast that do not have a large American Indian population, especially Pennsylvania, are also difficult. California has a large Lakota population, in addition to members from hundreds of other tribes. California has attempted to introduce laws that deal with child custody through ICWA.

Each tribe has one ICWA director who usually works alone. The budgets are meager because most of the tribes in the Great Plains are poor and any excess money has to go elsewhere. ''We learn to beg, borrow and steal,'' Garreau said.

''If we can save one or two children and get them back with family, we have done a lot,'' she said.