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Native Sun News: Tribes battle state over ICWA compliance

The following story was written and reported by Christina Rose, Native Sun News Associate Editor. All content © Native Sun News.

Indian Child Welfare Act is a law, not just a reaction
By Christina Rose
Native Sun News Associate Editor

PINE RIDGE — In 2003, a toddler walked barefoot in front of his windowless truck trailer home. The door was open and the baby’s older sister, about 14 years old and pregnant, stood in the doorway. The girl was watching over her many siblings who also lived in the dark trailer.

Although it was broad daylight, the mother was asleep on the couch, her face buried in blankets. Neighbors said she was frequently intoxicated. The trailer sat at the edge of the road, while behind it, down a short driveway, another home was being prepared for a party. A table laden with food awaited the guests.

A man and a woman, guests at the party, walked over to the trailer where the barefoot child played amidst broken glass and asked the girl in the doorway if she’d had lunch that day. The girl barely shook her head no. The couple asked about dinner the night before, and the same almost imperceptible shake of the head gave the same answer. “When was the last time you ate,” the woman asked the girl. The girl shrugged her shoulders.

Returning to the party, the woman began to load up a platter of food to bring to the family, but the hostess said, “Don’t feed them. They come over here every day asking for food. If we feed them today we will have to feed them every day.” A few weeks later, the hostess called social services. All of the children were removed. No one in that story knows where the children are today.

For those who are not familiar with the Indian Child Welfare Act, calling the Department of Social Services might have seemed like the right thing to do. The problem is that it is against the law for DSS to remove the children from the reservation without consulting the tribe, without Active Efforts to rehabilitate the mother, and without placing the children with other family members or on the reservation.

Korrie Wenzel, publisher, and Seth Tupper, editor, of the Mitchell Daily Republic wrote an opinion piece about the lCWA lawsuit filed by the Oglala Sioux Tribe and the Rosebud Sioux Tribe against the State and the Department of Social Services. They wrote, “What this controversy is all about is Indian children being placed in the homes of white foster parents. That’s offensive to some people, because it smacks of a continuation of decades of abuses of Indians.”

The Indian Child Welfare Act is a law, not simply a reaction to historical abuse. To not follow the law is seen by Indian Tribes as an arrogant disregard for the law and a continuation of abuse. According to the lawsuit, ICWA is a law that the Department of Social Services has not followed. Over 23 child welfare experts including Casey Family Services, say that following ICWA is best practice for all children, and that all social service removals would be best served if they followed the ICWA.

The Daily Republic further reports, “The state should not arbitrarily take Indian children from their tribes and communities. And we agree that in some cases it’s best for foster children to remain close to home.”

According to ICWA and many psychological studies, including one that cites the high suicide rate of Native children who were removed from their tribe and families, all Indian children are best served by remaining close to home and with relatives if the parents cannot raise them.

“But we also affirm that the main determinant in child placement should be the child’s safety and well-being,” wrote the commentators of the Daily Republic.

Those who attended the ICWA Summit learned from professionals that safety and well- being do not go hand in hand. Judges B.J. Jones and William A. Thorne cited statistical evidence that showed removing a child from the only culture they know and placing them in a foreign environment creates tremendous stress for a child. Often, Native children run away from foster homes and return to the reservations as soon as they can. Safety is important, but it is not the same thing as well-being, which takes place when the child is kept in a familiar environment.

“But are there enough of them (foster homes) to shelter the inordinately high number of children that need such care in those places,” the duo from the Daily Republic ask. The question is answered in the following information within another scenario.

On Thursday, the Oglala Sioux Tribe’s ICWA Director Juanita Sherick was on her way home from Aberdeen, where she had hurried from Pine Ridge to collect children who were threatened with foster care.

According to Sherick, the children’s mother had a disagreement with her 20-year-old daughter. The daughter left her mother’s house and took her smaller siblings with her home to Aberdeen. Once there, the daughter called the Department of Social Services to report the argument.

The DSS worker called the mother, not the tribe as the law requires, and told her she had only a few hours, by 5 p.m. that evening, to pick up her children or they would be put in the system.

The mother, who spoke with Native Sun News with a promise of anonymity, did not have a car or the financial means to get her children. When the mother told DSS there was no way she could get from Pine Ridge to Aberdeen in a few hours, DSS reportedly said, ‘They are going into the system.’” Panicked, the mother reached out to OnTrac, the agency that handles the ICWA cases for the Oglala Sioux Tribe.

OnTrac’s ICWA Director Juanita Sherick called the social service worker and said she needed a day to get there. Sherick said, “The woman from DSS said, ‘Well, we’ll give you more one day, but you have to be here by 5, or they are going into the system.”

The system of course, is the foster care system. Contrary to the law, there had been no hearing. There had been no investigation, no case plan, and the children were threatened with removal based on hearsay.

The mother explained, “The children were in no danger. There was food in the fridge. There was no evidence of any problems. They were supposed to notify the tribe and they didn’t. They notified me.”

Sherick said this was fairly common practice. “It’s so hard. DSS makes it really hard for Native families. This is one of the poorest counties in the country,” Sherick said. “Neglect was considered because the mom was on Pine Ridge and she couldn’t get to Aberdeen because she had no money. Under Active Efforts of ICWA, DSS is supposed to work with the families. I told them, ‘I am coming to pick them up and you can’t just put them in the system.” Sherick later confirmed that in other states, DSS would have given the mother money to get to Aberdeen.

When DSS comes to call, they will look in the refrigerator and if there is no food, or if the family misses a financial payment, the children could be removed. Sherick said that in many cases, $40 could prevent the removal of the child. “But DSS would rather remove them than provide referral agencies, like the Salvation Army. DSS doesn’t do Active Efforts to keep families intact.” Active Efforts are required by the ICWA law.

Sherick, who grew up in a non-native foster home, said that the problem is not a lack of foster homes; it is that DSS takes children that should remain with their parents and family. Too often in South Dakota, children are removed from a family due to poverty, which is called neglect by DSS.

Poverty or “Neglect constitutes the majority of state-recognized “maltreatment” of children,” according to graph included in the “Report to the US Congress from the Coalition of Sioux Tribes for Children and Families” based on a 2010 report by the Children’s Bureau, Administration of Children and Families and provided by the Lakota People’s Law Project. The national average is 78 percent but in South Dakota that number 96.8 percent.

According to the chart, only 10 percent of 744 Indian children, approximately 74, were removed for abuse each year.

Neglect based on poverty is not a reason to remove a child, according to Sherick, who added that other states comply much more closely with ICWA and do make Active Efforts. Describing a case where a Lakota father in Virginia needed substance abuse treatment, Sherick reported that the children were allowed to remain with relatives while he was in treatment.

“Other states will do that but the state of SD will remove the children, which is much more traumatic, keeping them away from the dad and the relatives,” Sherick said. “There was a hearing to move the children to the treatment site. That is Active Efforts. Here in South Dakota, they don’t want to work with families. If a parent has one DWI, they will remove the children to foster homes. In other states, they keep the family intact and allow visitation with dad. In South Dakota, they can’t even see their dad or even their relatives until the dad is finished with treatment. There are no Active Efforts. There is no treatment.”

Kristen Keller, the spokesperson for the South Dakota Department of Services said they were unable to comment in time for publication.

(Contact Christina Rose at

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