PIERRE, S.D. - Much work needs to be accomplished for the state of South
Dakota to comply with the spirit and intent of the Indian Child Welfare
A lack of documentation in case files indicates that notification to tribes
and families did not occur in a timely manner if at all, and that early
identification of the child as American Indian did not take place, a review
"Evaluations and assessments on children and other family members lacked
any recognition of American Indian tribal or cultural identity, possible
cultural strengths, or that any cultural factors were considered in the
conclusions reached by the evaluators," the reviewers stated.
In some files there was a lack of direct evidence that would indicate ICWA
compliance, such as letters to tribes with a return receipt for registered
mail or sending the notification to tribes 10 days prior to proceedings.
Not all cases were out of ICWA compliance, the review panel found.
The National Center for State Courts and the North American Indian Legal
Services conducted the case file reviews in accordance with the governor's
commission to study South Dakota's ICWA compliance. The groups submitted 64
recommendations to the state Department of Social Services, the state's
nine tribes, the state court system and the state Legislature.
The panel concluded that the DSS and state courts relied on non-documented
evidence to establish the heritage of children to whom they believe ICWA
applies. Some files contained tribal enrollment applications but no
indication they were notarized and filed with the tribe, sent to the tribe,
or whether the tribe responded to the applications by denying enrollment or
issuing tribal enrollment identification cards.
Late notification to the tribes is also a problem. Of the files surveyed,
it was found that an untimely notice was sent to the tribe 13 percent of
the time; to the father, 16 percent of the time; to the BIA, 19 percent;
the mother, 22 percent; and to others, 23 percent.
Another continuing complaint is that in cases where children have been
removed from the home and parental rights revoked, American Indian family
members claim they cooperated with DSS requirements for parent training and
other programs so the child could remain with the family.
Before the child can be placed in foster care or parental rights
terminated, the court must be satisfied that active efforts have been made
to provide remedial services and rehabilitative programs designed to
prevent the breakup of the family and that such efforts were successful.
The legislative State-Tribal Relations Committee heard many people testify
they completed all the requirements set down by the DSS, only to lose the
"Active efforts were not always documented by the court; however, the court
usually made a finding that active efforts had been made," the review panel
One difference between ICWA and the Adoption and Safe Families Act is the
definition of effort made to accommodate the child and family. ICWA
requires an "active" effort, even "going the extra mile," as described by
some social workers; ASFA requires only "reasonable" efforts. The review
panel criticized some state circuit courts for confusing the two. In some
ICWA cases, the judge indicated that a "reasonable effort" was made when an
"active effort" was indicated by federal law.
DSS workers explained that the most difficult part of ICWA is the placement
preferences provision. The problem is a lack of suitable or identified
relatives and few American Indian foster families.
Parents are asked by DSS social workers at several points during the
involvement to identify relatives that may be considered as placement
options for the child. Social workers argue that their caseloads are so
heavy they don't have time to investigate relative placement options
outside those given by the parents.
Another problem is that the state gives tribes insufficient information to
determine whether the child belongs to a specific tribe. Tribal ICWA
workers are under-funded and at times lack the money to travel to court
hearings, and distances between communities in South Dakota can quickly
drain a small travel budget. Most people have recommended the state give
consideration to that fact.
Tribal and family notification of court proceedings and placements concern
many who testified to the legislative committee and the ICWA Commission. In
one case, DSS dealt with a family where the child was determined to be
American Indian; in another, it took DSS almost two months after the court
hearing and out-of-placement date to send notice to the tribe.
In three cases reviewed, the tribe was notified from one to two months
after proceedings had occurred.
South Dakota may be behind the times in implementing ICWA legislation that
surpasses the basics of the federal ICWA law. Minnesota's ICWA law goes
beyond the basic ICWA spirit and intent of the law, and requires funding
for the statute's enforcement.
In Colorado, two notices must be sent to the child's tribe: one to the
tribal executive and one to the tribal social worker.
Three other states - New Mexico, Iowa and Oregon - have ICWA requirements
that go beyond the federal act.