South Dakota ICWA law scuttled

PIERRE, S.D. - Tribal leaders and individuals came to the legislature to praise a bill that would put the state in compliance with the federal Indian Child Welfare Act, but found an entirely different bill.

A ceremonial handing over of a letter from the nine tribal chairmen and the text of a bill to the governor of South Dakota on Native American Day at the capitol appeared to make it a done deal. The state would now comply with federal law and American Indian families would have a greater say in where children lived.

The change in direction has not gone down well with the tribal leadership in the state, where relations with state and tribal governments have not faired well over the years to begin with. Recent overtures by Gov. Mike Rounds indicated that changes would occur, but recent changes to many bills that would positively affect Indian country have either been changed or killed in this session.

"I just found out this morning the bill was amended," said Harold Frazier, chairman of the Cheyenne River Sioux Tribe.

Frazier had just received a copy of the rewritten bill that was supported by the governor's office. He said he did not support it. All the tribal representatives present at a legislative hearing opposed the new bill.

"There is something terribly wrong with the system. We have no answers from the state or tribal ICWA programs, and no specific date to show the state is out of compliance. We do have plenty of empirical data to show they are," said Sen. Mike LaPointe, R-Rosebud.

LaPointe was a prime sponsor of the original bill and also engineered the revised version with the governor's office.

What the new bill does is establish a study commission made up of 29 appointed people. The study will be completed in 10 months and the results turned over to an independent reviewer.

Tribal leaders expressed concern about the makeup of the commission. Nine of the members will be appointed by tribes, and other tribal members may also be on the commission as appointed by other authorities, proponents said. What the tribes want to see is a 50/50 representation.

Regina Wiesler, Department of Social Services said the new bill would be an opportunity for both sides to come to the table with open minds and discover what they have in common, "We have a responsibility to protect children who can't protect themselves. If we work together we can achieve a common purpose."

Protection of the children is what people have said for years to the legislature and more recently to the State-Tribal Relations Committee. In January when the bill was introduced, witnesses laid out horror stories about non-compliance with ICWA and how children were removed from families without a chance for the tribe of the extended family to take custody of the children.

The reason ICWA was passed was because prior to that American Indian children were removed from their homes to save the child, said Terry Cross, executive director of National Indian Child Welfare Association.

"ICWA did two things. [It] set up criteria that states have to follow and notifies the tribe to give the tribe an opportunity to request a transfer of jurisdiction. The act has had varying degrees of success over 25 years," Cross said.

"From our experience, to be successful, a study has to be comprehensive, collaborative and credible. This bill falls short of those three criteria," he said.

Diane Garreau, ICWA representative for the Standing Rock Sioux Tribe said the bill does not specify that some commission members should be versed in ICWA and it does not allow enough input from the tribes.

"The composition of the commission is slanted heavily toward the state," she said.

The study, she said, will find the state is not in compliance with ICWA, a 2002 review found major areas where the state failed to comply. She said that 65 percent of children in foster care are American Indian.

"Complacency and indifference, led to wholesale violations of ICWA and there is no evidence of when a hearing was held prior to placing a child as required by ICWA. There are invalid consent documents and a lack of efforts and a resistance to jurisdictional efforts, bad faith paternity challenges, abuse of expert witness requirements, a lack of diligent searches and violation of placement preferences," Garreau said.

"The DSS does pretty speeches about their desire to work together with the tribes, but DSS is not acting in good faith and doesn't intend to work with tribes. The tribes did not ask for this commission and it can only worsen relationships between the tribes and the state."

Understanding the culture may be the way to resolve the problems with child placement, said Frazier. Others complain that DSS officials, when they inspect a home are not familiar with living conditions or the lifestyle of people who live on reservations. That leads to removal of children from families who love them and could care for them in a cultural way.

The new bill will delay by at least a year any change or implementation in ICWA regulations and tribes want change now. Nine tribal leaders signed a letter endorsing the original ICWA bill that would put the state in compliance.

Rep. Tom Van Norman, D-Eagle Butte, said the tribes came to him and asked that the commission have parity and that the independent reviewer be chosen by the state and the tribes.

Van Norman brought forward a bill in the 2003 legislative session that asked for a study, but the bill was defeated.

"The blame is not on any one of us. This is so important for Indian families that have been broken up by the state court or system. What we are finding is the line officer is looking at what is wrong with the home. We need to educate each other and offer any family member or extended family to come together," he said.

The misunderstanding or lack of knowledge of the American Indian culture may have led to what American Indian families consider fair treatment when children are placed with non-Indian families great distances from their homes. Governor Rounds has expressed the need to bring the cultures together for better understanding, but it was hard for tribal members and officials to understand with the change in S. 211, the ICWA bill.

And one of the biggest questions is: can this study be done competently in 10 months?

"This will need an adequate length of time, not something you can do quickly," Cross said

Rep. Stan Adelstein, R-Rapid City, and chairman of the State-Tribal Relations Committee said that 10 months was a long time and to wait another year would be foolish and that to delay another day would be foolish.

That's why the bill in its original form had an emergency clause that would make it effective the day it was signed, but according to Van Norman the original bill was not looked at by the administration and the new bill to create the commission was put in its place.