Two days ago, on January 31, the Lakota People's Law Project submitted a report to Congress documenting allegations first reported via an NPR investigation in 2011: that South Dakota's state child welfare officials were stealing Indian children from their homes and families and placing them in white foster care - in part for "perverse financial incentives," and all in direct and repeated violation of the federal Indian Child Welfare Act [ICWA].
At the time the NPR story was released (October, 2011), Meteor Blades wrote a brutal, soul-searing report here at Daily Kos, documenting both the current outrages and this country's long and terrible history of stealing Indian children. In it, he made the point that what people regard as "history" isn't even past, telling the story of Kossack Carter Camp. In the diary and comments are other stories from other Indian families: those of Meteor Blades, of navajo, of myself, of Wings. Carter and Wings are both survivors of such programs themselves.
But in 2011, we could hope that the worst abuses were at least now only in our pasts.
In 2011, we had no idea how bad it still is.
THE INDIAN CHILD WELFARE ACT [ICWA]
In adoption and foster care placement cases involving Indian children, the ICWA governs. It's a federal law, passed in 1978 after Congress became aware of the ongoing scandal of stolen Indian children. The point, as always, was assimilation: Kill the Indian; save the man - the foundation of federal Indian policy since before there was a federal government. At the time, evidence was presented to Congress that as many as 35% of all Indian children had been stripped from their families, homes, lands, and tribal ways by government agencies, "charitable" groups, and religious entities, to be assimilated into the dominant culture.
In reality, the numbers were probably much higher.
And stripping the children of their family and cultural ties had lethal results. At the time of the ICWA's passage, evidence showed that the majority of Indian children so removed suffered life-long ill effects: homelessness, addiction, imprisonment, early death.
With that in mind, Congress drafted the ICWA with an over-arching goal in mind: keeping Indian children within their communities and cultures, and where possible, within their extended families. As the Lakota People's Law Project [LPLP] describes it:
Section 1915 of ICWA mandates that State Departments of Social Services (DSS) undertake all possible "active efforts" to keep Indian children with their parents before removing them from their homes. If those efforts fail, the state is obligated to provide for the "preferential placement" of children with their Indian relatives or tribe. Indeed, all such possible active efforts must be undertaken by DSS officials before any Indian child can lawfully be placed in a non-Indian child-care institution or with a non-Indian foster parent. Section 1916 of ICWA mandates that every State Department of Social Services and every State Court in our nation comply with these preferential placement provisions. Together, these two sections were intended by Congress to be central, remedial provisions of the Act.In Indian Country, this is known as "kinship placement," and in most - probably virtually all - cases, it's a viable option. Indian families traditionally encompass extended family members, and if parental placement is not an option, there are usually grandparents, uncles, aunts, or older cousins available who can and would take in child relatives in need. But as the LPLP notes, in many places, little to nothing has changed:
Over 30 years later, however, the situation has not improved. According to the Child Welfare League of America’s latest official report, between 2001–2007 Native American children constituted between 61% and 68% of the children who were involuntarily seized and placed in out-of-home care each year by the State of South Dakota’s Department of Social Services—despite the fact that Native Americans constitute only 13% of the state’s total population.The problem arises, in part, from a sloppiness in drafting. When the enforceability provisions were added, Congress failed to incorporate those provisions expressly into certain sections, despite the clear legislative intent to do so. As the LPLP makes clear, 35 years later, the results of this sloppiness have been disastrous:
Due to this oversight, several states’ courts and departments of social services consistently and flagrantly defy ICWA’s requirements for the preferential placement of fostered Indian children with their Indian relatives or tribe. Furthermore, a number of federal district courts in the States of South Dakota, California and Washington State have recently ruled that they are presently helpless to stop or remedy these violations unless this oversight is redressed.1 The now officially-declared state of powerlessness on the part of the federal courts to intervene has resulted in a virtual epidemic of trauma inflicted upon thousands of Native American children—the very trauma Congress intended to prevent.To give these larger numbers a little perspective, here's a statistic from the LPLP that you won't find in non-Indian discussions of this atrocity: During George W. Bush's tenure in the White house, more than 6,000 Indian children were "seized and removed" from their parents for placement in non-Indian homes.
Just over a month ago, I wrote about the violence inherent in the system of what I call Indian child removal: stealing Indian children from their families and placing them in foster care (or worse) with non-Indians. A fellow Kossack brought to my attention the case of a retaliatory prosecution of two state officials, charged with perjury for their support of Indian children alleging horrific physical, psychological, and sexual abuse at the hands of white foster and adoptive parents.
When these brave children came forward, what happened next sounds like something out dystopian fiction:
Startlingly, the agents who summoned the children to the interrogation that day in November 2011 were working hard to get the youngsters to recant their abuse claims. Sheriff’s deputies had taken the children out of school, court records show, and brought them to the basement room, with its table, chairs, one-way mirror, and recording equipment. One by one, the children faced Agent Mark Black of the Department of Criminal Investigations and a partner. The children were each alone, without an adult present on their behalf.Try to imagine that happening in a typical dominant-culture environment. It wouldn't.
While being questioned by the agents, the children became fearful and wept, according to someone familiar with the case who asked not to be identified for fear of retribution. The youngsters were apparently not told they were being recorded. While left alone for a time, one explored the room, discovered the camera equipment behind a peephole, and began to cry.
But the "rules" are still different for Indian children (and their advocates), even today. Particularly when it adversely affects the dominant-culture establishment.
"BITCH, YOU'RE IN FUCKING DEEP SHIT."
These children's courageous testimony threatened not only the very foundations of the state's child services programs, but a veritable flood of federal dollars to the state. Deputy Attorney General Brandon Taliaferro and court-appointed special advocate Shirley Schwab listened to the children, heard their stories, did their own investigating, and blew the whistle.
In other words, they did their jobs.
And what did they get for their efforts to do the right thing?
One agent says the children “have been f—ing with us.” The men talk about questioning the therapist to whom the children described the sexual assaults. Agent Black says, “I guarantee we put [her] in here. Put the f—ing hot screws in her. Bitch you’re in f—ing deep shit. You better start talking.” Later Black says, “At least we f— with Brandon.”"EVIDENCE PRESENTED IS SO LACKING . . . ."
. . .
Since the interrogation, Agent Black has testified multiple times that his questioning aimed to get the children to recant their abuse claims and to say that Taliaferro and Schwab had encouraged them to lie about the abuse, but the youngsters never did. Nevertheless, the state moved on the two whistleblowers, raiding their homes and offices and hitting them with felony and misdemeanor charges related to persuading the children to lie. Later testimony would indicate that investigators had turned up no evidence of this.
The adoptive [non-Indian] father of four of the children involved was eventually sentenced to fifteen years for rape. Meanwhile, On January 10, Judge Gene Paul Kean dismissed the state's case against Taliaferro and Schwab, finding:
The evidence presented is so lacking that as a matter of law the case should be dismissed.The lawyers present will recognize what a sad commentary that statement is on the state's case - and on its motivations.
The case does, however, seem to have served a larger purpose:
As terrible as the ordeal was for Taliaferro and Schwab, their prosecution appears to have been a turning point for Indian-child-welfare issues in the state. Since the proceeding, Young said, the Standing Rock tribal council has met to consider a lawsuit against the state. The tribe will also hold child-welfare hearings in its eight communities. On the Pine Ridge Indian Reservation, the Oglala tribal council has placed a discussion of child-welfare and foster-care issues on its upcoming agenda. “We are very concerned,” said a tribal executive-committee staff member.Representatives of South Dakota's various Sioux tribes were present in the courtroom when the case was dismissed. And while they were elated at the immediate result, they all know that much remains to be done, and are determined to do it. The LPLP has been working closely with the tribes and with members of Congress to force the state of South Dakota and the Bureau of Indian Affairs to do their jobs and follow the law. To that end, the LPLP conducted its own investigation of the allegations in NPR's reporting, and has issued the following findings in its report to Congress:
“Officials of the state are involved in nothing less than a federal criminal conspiracy to discriminate against Lakotas and to unlawfully retaliate against any non-Indian people who attempt to defend them, including Taliaferro and Schwab,” said [Lakota People's Law Project attorney Daniel] Sheehan.
1. MORE THAN HALF OF THE STATE'S CHILDREN IN FOSTER CARE ARE INDIAN
CLAIM #1: "While Indian children make up 15% of the child population in South Dakota, over one-half of the children in foster care administered by the state are Indian."Imagine the numbers involved here. Only 15% of all children in the state are Indian - yet more than half of the children in foster care are Indian. This hints at problems beyond ripping Indian children from their families and cultures for purposes of assimilation. It's punitive - for both children and parents.
FINDING: True. Native American children constitute approximately 13.5% of the child population of South Dakota,3 yet they make up on average 54% of youth who enter foster care in the state each year.4
2. SOUTH DAKOTA REMOVES ALMOST 3X AS MANY INDIAN CHILDREN AS OTHER STATES.
CLAIM #2: "[South Dakota] is removing 700 Indian children every year from their homes…[which is] almost three times the rate of other states."
FINDING: True. The number of Native American children entering South Dakota foster care every year is about 742.5 Even when controlling for the factor of poverty, South Dakota ranks 3rd in the nation for the highest number of children taken into custody by the Department of Social Services.6
Again, this hints at other, equally dark motivations. Whenever people of color, of whatever ethnic group, are singled out for disproportionate negative impacts, there's an agenda at work that isn't benign. It certainly isn't the "best interests of the child." And any real investigation must dig deep to uncover those other motivations. The LPLP did so.
3. REMOVAL STANDARDS FOR INDIAN CHILDREN ARE LOWER, WITH A BUILT-IN BIAS
CLAIM #3: "[These removals are done] sometimes under questionable circumstances."Generally speaking, official reports to Congress can't always call things out for what they are. But I can. And this? This is racism, in one of its most basic forms.
FINDING: True. We believe that South Dakota’s DSS has created a conception of "neglect" that is severely biased against American Indian families, especially those residing on reservation. First, this conception inappropriately equates economic poverty with neglect. Second, it fails to understand the tribes’ kinship system of extended family care, a cultural tradition of the kind the ICWA was actually designed
to protect. Under this bias, South Dakota's rate of identifying "neglect" is 18% higher than the national average. In 2010, the national average of state discernment of neglect, as a percent of total maltreatment of foster children prior to their being taken into custody by the state, was 78.3%. In South Dakota the rate was 95.8%.7
4. THE STATE SERIALLY VIOLATES THE ICWA, KNOWING THAT QUALIFIED INDIAN HOMES ARE AVAILABLE
CLAIM #4: "[South Dakota is] failing to place these children with their relatives or tribe – as is required under ICWA … Indian children are being placed in non-Indian homes or group care [by the Department of Social Services] at an alarming rate – upwards ofThis is not a case of ignorance of the law. It's not a misguided attempt to serve the best interests of the children involved. it's a knowing and willful serial violation of federal law, trumping Indian children's rights with racist interests and agendas . . . and, as we'll see below, with a sleazy profit motive.
FINDING: True. As of July 2011, there were 440 American Indian children in family run foster homes in South Dakota. Of these, 381 (87%, or 9 out of 10) abided in non-Native family foster care.8 At the same time, there were 65 licensed Native American foster homes, and anywhere from 13–28 of these Indian foster homes sat empty. [From Reviewing the Facts: Assessing the Accuracy of NPR’s Native Foster Care: Lost Children, Shattered Families.]
5. SOUTH DAKOTA STEALS INDIAN CHILDREN FOR PROFIT
CLAIM #5: "South Dakota is removing children…for what appears to profit."And here we get to the nut of it. Make no mistake: South Dakota's child welfare system is clearly rife with racism, and that would be more than enough incentive. But when you add a profit motive? What might be a hit-or-miss proposition, depending on the biases of individual caseworkers, becomes an institutionalized, systematized attempt at cultural genocide.
FINDING: True. Nearly $100 million in federal funding is being sent to South Dakota to administer foster care each year. This includes $55 million for Children’s Services,9 $48 million to fund foster children's health care,10 and $4 million for administration.11 These
federal monies constitute a significant portion of state expenditures, and, according to the healthcare consumer nonprofit organization Families USA, they have “a positive and measurable impact on state business activity, available jobs, and overall state
income.”12 All this demonstrates a strong financial incentive for state officials to take high numbers of Native American foster children into custody. Anecdotal evidence and testimony confirm that this incentive motivates the state’s actions.
CONGRESS AND THE BIA
After the NPR report was released, tribal leaders, with the assistance of the LPLP, met to strategize about how best to bring an end to the theft of their children. Among other things, they sought a summit with the BIA and South Dakota officials to resolve this crisis, and wrote to selected members of Congress and the Department of the Interior to seek their help.
The BIA promised to help convene such a summit in the first half of 2012. It never did so. However, Congressmen Ed Markey (D-MA) and Ben Ray Luján (D-NM) have responded, and are demanding answers. Currently, the BIA has promised to convene such a summit in Rapid City, South Dakota, in April . The tribes themselves are insisting on both a seat at the table and hard results; Pine Ridge has gone so far as to declare a tribal state of emergency with regard to the removals of its children.
HOW TO HELP
The cost-free method is simply to spread the word. But such efforts are expensive, and it involves a population with one of the lowest annual income levels in the entire country. You can donate to this effort through the Lakota people's Law Project here. You can also contact the individual tribes involved (they're listed on the LPLP Web site) to ask them what assistance they most need.
As developments arise and more opportunities to assist present themselves, I and/or other members the Native American Netroots team will keep you apprised.