In a sweeping victory for Indian families, a federal court has ordered South Dakota officials to stop violating the rights of Indian parents and tribes in state child custody proceedings on several grounds according to a release today.
It's been a long, slow process. In a speech at the White House Tribal Nations Conference last December Attorney General Eric Holder said:
Today, I am pleased to announce that the Department of Justice is launching a new initiative to promote compliance with the Indian Child Welfare Act. Under this important effort, we are working to actively identify state-court cases where the United States can file briefs opposing the unnecessary and illegal removal of Indian children from their families and their tribal communities. We are partnering with the Departments of the Interior and Health and Human Services to make sure that all the tools available to the federal government are used to promote compliance with this important law. And we will join with those departments, and with tribes and Indian child-welfare organizations across the country, to explore training for state judges and agencies; to promote tribes’ authority to make placement decisions affecting tribal children; to gather information about where the Indian Child Welfare Act is being systematically violated; and to take appropriate, targeted action to ensure that the next generation of great tribal leaders can grow up in homes that are not only safe and loving, but also suffused with the proud traditions of Indian cultures.
One of the states, although certainly not the only one, that was
systematically violating the Indian Child Welfare Act (ICWA) was South Dakota. And efforts to address the violations in South Dakota have been successful according to these reports today.
The Indian Child Welfare Act (ICWA) is a federal law that seeks to keep American Indian children with American Indian families. Congress passed ICWA in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. The intent of Congress under ICWA was to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" (25 U.S.C. § 1902). In the past Indian children were sent to boarding schools where they were systematically stripped of their culture, their language, their religion, even their names, and far too often also subjected to physical and sexual abuse.
Despite the intent of the ICWA, however, another generation of Indian children in South Dakota were still being lost. In October 2011, in a three-part, in-depth investigation NPR showed the reason:
This time it's through state-run foster care. In South Dakota, Native American children make up only 15 percent of the child population, yet they make up more than half the children in foster care. An NPR News investigation has found that the state is removing 700 native children every year, sometimes in questionable circumstances. According to a review of state records, it is also largely failing to place native children with their relatives or tribes. According to state records, almost 90 percent of the kids in family foster care are in non-native homes or group care.
This despite the availability of Indian foster care homes which have never been used or have remained empty for years. Confronted with this reality, the BIA official who said he had a good rapport with the state and that the system was working had to admit that none of his cases were placed with native families in this eloquent statement:
"Of my cases right now, I think they're all...right now, the placement of the children right now are...boy that's, huh," he said.
And the reason for this? Money of course. And a flagrant disregard for the philosophy leading to the ICWA. According to the NPR:
Every time a state puts a child in foster care, the federal government sends money. Because South Dakota is poor, it receives even more money than other states
And although these are matching grants, in South Dakota's case,
the federal government reimbursed the state for almost three quarters of the money it spent on foster care.
There's also an adoption incentive which rises from about $4000 to up to $12,000 per child if the child has special needs.
A decade ago, South Dakota designated all Native American children "special needs,"
The grounds for removal were also suspect. In many cases, poverty itself was considered neglect and therefore grounds for removal. Again, from NPR:
There are children in South Dakota who need to be removed from their families. But according to state figures, less than 12 percent of the children in foster care in South Dakota have been actually physically or sexually abused in their homes. That's less than the national average. And yet South Dakota is removing children at almost three times the rate of other states, according to data from the National Coalition for Child Protection Reform.
The
horrific sequelae to this publicity was that
(SD) Attorney General Jackley lodged charges (of witness tampering and subornation of perjury) against (Asst. State Attorney) Mr. Taliaferro and (Court appointed child advocate) Ms. Schwab shortly after closeting with Governor Daugaard following the broadcast of this NPR report. The NPR expose revealed that Governor Daugaard had served from 2002 – 2009 as the executive director of the largest private for-profit group home for Indian foster children in South Dakota, the South Dakota Children’s Home Services, Inc. Governor Daugaard was the Lieutenant Governor of South Dakota while he directed this corporation. During Governor Daugaard’s tenure as lieutenant governor, his South Dakota Children’s Home Services, Inc. received more than $50 million of state money, mostly in the form of no-bid contracts. In addition, records show that Governor Daugaard was paid $115,000 annually by this organization.
The charges were laid because of Talliaferro and Schwab's efforts to prosecute the foster parents for sexual abuse and remove four Indian foster children from a non-native home where they had been placed after being taken from their mother, even though an older sister had offered to take them into her home. The state of SD went after the prosecutor and child advocate much more aggressively than they did the abusive foster parents. (Although the white foster parents faced thirty-four felony sexual abuse charges, each with a potential life sentence, only the foster father Richard Mette pled guilty to a single count of rape of a child under ten years old and was sentenced to 15 years with parole after five years.)
But even in a state so intent on covering up violations of federal law that could curb the flow of federal money (and the personal gain enjoyed by second-term Governor Daugaard), the flagrant disregard for the ICWA was obvious to the court.
Turtle Talk reports the judge wrote:
A simple examination of these administrative materials should have convinced the defendants that their policies and procedures were not in conformity with ICWA.
Or as reported by
Indianz:
"Indian children, parents and tribes deserve better," Judge Jeffrey L. Viken stated simply in his 45-page ruling.
The state has been
ordered to:
Provide parents with adequate notice prior to emergency removal hearings
Allow parents to testify at those hearings and present evidence
Appoint attorneys to assist parents in these removal proceedings
Allow parents to cross-examine the state’s witnesses in the hearings
Require state courts to base their decisions on evidence presented during these hearings.
"All praise and honor should be given to those tribes and to the Lakota parents who have fought for the rights of all Indian people in this historic legal victory," said co-counsel Dana Hanna.