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South Dakota Tribes Charge State With ICWA Violations

A consortium of tribal directors of Indian Child Welfare Act (ICWA) programs on Sioux reservations in South Dakota accuses the state of violating the provisions of ICWA, according to a new report they have prepared and will send to Congress. The directors ask that Congress ensure that the Bureau of Indian Affairs hold a summit immediately on problems with Native American foster care in the state.

The report examines and finds plausible allegations in a 2011 National Public Radio story claiming that a goldmine in federal dollars flow into South Dakota, thanks to the high proportion of Lakota and Dakota children from the state’s nine Sioux reservations in the foster-care system. Sioux youngsters make up 13.8 percent of the child population of South Dakota, but 56.26 percent of youth in foster care, the ICWA directors wrote, adding that there is some evidence that South Dakota officials are “taking high numbers of Native children into custody in part to stimulate the state’s economy.”

In contrast, “kinship care,” which ICWA encourages and which allows Native relatives to care for their young kin under age-old traditions, costs nothing and therefore attracts no federal money. Meanwhile, the governor’s office has said the NPR report was based on “incorrect information” and “half-truths.”

Official disregard for Native culture exacerbates the situation, according to Terry Yellow Fat, ICWA director for the Standing Rock Sioux Tribe, which straddles South and North Dakota, and co-chair of the consortium of ICWA directors. “The state still believes they have to ‘kill the Indian to save the child.’ The emotional and cultural damage to our children is enormous. I had one case earlier this year in which a young child said, ‘I’ll kill myself, if I can’t go home.’ That child is back with us and doing well, but others stay in the system until they age out at 18. They’re lost, they don’t fit in anywhere, and many end up on the streets, on drugs.”

Last year, members of Congress pressed the BIA to set up a conference in South Dakota of all the ICWA-related stakeholders—including federal, state and tribal officials and families who had lost their kids—for a review of South Dakota’s compliance with ICWA. The conference never took place, so the ICWA directors took it upon themselves to respond to Congress’s questions and concerns and press for a summit, according to attorney Daniel Sheehan, general counsel of the Lakota People’s Law Project, a Rapid City group that participated in preparation of the report. BIA spokeswoman Nedra Darling did not comment directly on the directors’ report or the call for a summit, but said that recently confirmed Assistant Secretary for Indian Affairs Kevin Washburn understands the critical nature of these particular issues and the tremendous importance of protecting the welfare of Indian children.

The ICWA directors found that the latest information shows South Dakota is not only taking a disproportionate number of children into custody, it is also failing to ensure that they stay with their tribes, despite ICWA provisions requiring that tribes have a say in their children’s placement. As of July 2011, they said, Native American foster homes sat empty while nearly 9 out of 10 Indian children in state foster care were in non-Native homes.

The ICWA directors also noted the state’s tendency to equate “poverty” with “neglect,” which in turn results in more seizures of Native American children: “South Dakota’s rate of identifying ‘neglect’ is 20 percent higher than the national average,” they wrote.

“The prevailing attitude on the part of the state is that poverty is a crime,” said Yellow Fat.

The group also found disturbing information on the fate of children once they left the system. Some youngsters are reunited with their families or adopted; or they may turn 18 and “age out.” But from 1999 to 2009, the “other” category—children who died, ran away or were transferred to correctional or mental-health facilities—grew from 6.9 percent to 32.8 percent.

Former North Dakota senator Byron Dorgan, who founded the Center for Native American Youth, in Washington, D.C., called Indian child welfare “a critically important issue. Said Dorgan, “The federal government, states and tribes must take any allegation related to the safety of a child seriously and do everything in their power to protect our youngest First Americans.”

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In the past, South Dakota has responded to allegations of non-compliance with ICWA by stonewalling. After its state supreme court handed down a 2005 decision that supported ICWA provisions, the legislature passed a series of laws making it easier to take Indian children and harder for families to get them back.

Sheehan charged that the state has also retaliated personally against Indian-child-welfare supporters. In 2011, after two Indian-child-welfare advocates—former South Dakota state’s attorney Brandon Taliaferro and court-appointed child advocate Shirley Schwab—charged non-Native foster parents (later adoptive parents) of five Indian children with a horrific litany of 43 counts child rape and abuse, South Dakota State Attorney General Martin Jackley filed charges of his own. He charged the advocates with witness tampering and more, for allegedly encouraging the Indian children to lie.

Jackley also ordered night-time and early-morning raids of Taliaferro and Schwab’s offices and homes. Since that time, according to local media, a plea bargain allowed the foster father to plead guilty to one charge of rape; he was sentenced to 15 years in May 2012. The children were returned to the nonNative mother.

Taliaferro and Schwab contend that Jackley, the Department of Social Services and other state officials are engaged in a criminal conspiracy to systematically discriminate against Lakota children and families to retaliate against non-Indian people who step up to defend them. They still face 11 felony and 4 misdemeanor charges.

“Shirley and I have lived in fear every day for over a year, not only for our own safety, but for the safety of those children whom DSS gave back to the abusive non-Native foster/adoptive mother,” said Taliaferro. “Fighting for the rights of Native Americans in South Dakota, especially Indian children, is very dangerous, as we know too well.”

At presstime, neither Attorney General Jackley nor officials of the South Dakota Department of Social Services had responded to requests for an interview on either these assertions or those in the ICWA directors’ report.

“This is old-time frontier stuff,” said Sheehan. “It’s hardball.” Is the state attempting to silence critics? Sheehan said it certainly seemed so.

The implications are clear for the tribes as well—they may see all kinds of retaliation in many aspects of state-tribal relations if they stand up to South Dakota on this, Sheehan said. “That’s why this report is so courageous. We’re hoping to get it to the Congress. We’re hoping the conference happens, the issues are aired, and we see some real change.”

Congress passed ICWA in 1978 to stop the massive removals of Indian children that had taken place over a century, at first to notoriously violent boarding schools, then to foster care and adoption in white homes and group settings. During the mid-20th century, as many as one-third of Native children had been taken from their tribes under federal-, state- and church-run programs, according to a 1976 report by the Association on American Indian Affairs. In this second decade of the 21st century, despite the passage of ICWA in 1978, American Indian children in states across the country are still taken from their families and placed in foster care or adoptive homes at a much higher rate than other youngsters.

“The current situation is vicious. Their attitude is, ‘they’re just Indians,’” said Yellow Fat. “Why? Why? We’re human. So many tribal members have come to forward to say they lost their children, sometimes years ago, and don’t know where they are. Wakan injan. Our children are sacred. We must take care of them.”