PIERRE, S.D. - One year ago, the governor of South Dakota sidetracked a
bill that would have required the state to abide by the federal Indian
Child Welfare Act and instead organized a commission that would collect
information to determine if the state was or was not in compliance.
That study is complete, but further work by the commission was recommended.
Over the past four years, the Legislature's State-Tribal Committee has
heard testimony on issues such as child protection and welfare, including
emotional testimony from family after family describing children taken from
them and placed with non-Indian foster families or adopted out to
non-Indian families. Allegedly, little or no attempt to place the children
with extended family members was made.
Grandchildren, nieces and nephews have allegedly disappeared, according to
many American Indian families. Some family members, in an attempt to keep a
child in the family, complied with demands to attend parenting classes,
alcohol treatment programs and many other programs not required, only to
discover the child was placed elsewhere.
Some of the recommendations require funding, but the commission advised it
would be well worth the expenditure to provide improved services to
American Indian children and families.
"The state and the tribes must begin to partner in new and innovative ways
to break down barriers and improve services to children. The South Dakota
Legislature must be willing to fund additional full-time employees to
implement the many recommendations found in this report.
"The money to provide services to needy children and families will be well
spent, as it serves as a building block for the future of South Dakota."
A bill introduced in the state Legislature this year identifies all members
of the family who are to be considered as possible guardians or foster
parents for a child. As of this writing, that bill has not been given a
Lakota families can be very large and tradition states that all - no matter
how distant - are considered relatives. This is not taken into
consideration by the state, which considers only nuclear families in
accordance with policy.
The commission's 28 members, representing the tribes, the Legislature, the
governor's office and the Department of Social Services, were attorneys,
social workers, legislators and ICWA representatives from the tribes. The
commission held five public hearings across the state, with an estimated
500 people testifying before the commissioner.
A conflict between ICWA and the Adoption and Safe Families Act continues to
muddy the waters of child protection in South Dakota. Many witnesses
testified to the State-Tribal Committee that the ASFA, as interpreted by
the state, puts the best interest of the child first and ignores ICWA.
American Indian child advocates and ICWA representatives claim that ICWA
should take precedent over ASFA.
Case law applicable to ICWA now exists that will determine the strength of
the act. Also, the Supreme Court is now considering possible conflicts
between the two acts. The result of that investigation has yet to be
Many of the points considered by the high court continue to create
conflicts between the tribes and the state. Critics of the court decisions
argue that some decisions did not consider the spirit and intent of ICWA.
The commission made recommendations that would help relieve the conflict
between the two acts and end confusion over ICWA decisions.
Among the 69 recommendations made to the state and its nine tribes, at the
top was an extension of the ICWA Commission by one more year to provide
guidance and assist in the recommendations' implementation. Other
The Department of Social Services was advised to enter into negotiations
with all the tribes to sign contracts allowing tribes to provide full child
welfare services for its children who live on the reservations. Those
contracts, like that with the Sisseton-Wahpeton Oyate, would allow for the
licensing of foster parents.
Culturally-appropriate curriculum should be included in parenting classes,
including contracting with the tribal colleges to train American Indian
foster care providers.
Tribes should fully staff and fund ICWA offices as a top priority. (Some
discussion during the hearings centered on the fact that not all tribes
have fully-staffed ICWA offices due to a lack of funding, and early
response to court hearings or queries about tribal affiliation suffered. On
the other hand, ICWA officers said that many times they were notified of
court proceedings and other issues too late to make comment or intervene in
"Compliance with ICWA and service to American Indian children is a vitally
important issue. It is the sincere hope of the commission that the tribes
and the state agencies will begin to collaborate in a new and effective way
to better serve South Dakota's children," the commission stated.