Removal of Indian children from their homes appears to be a lucrative business in South Dakota, to the tune of “almost a hundred million dollars a year,” according to a 2011 NPR investigation. That’s not including the “adoption incentive bonus” paid to the state when “they move kids to foster care and into adoption – about $4,000 a child.” If the child has special needs, “a state can get as much as $12,000” and interestingly, South Dakota “designated all Native Children” as “special needs.” Consistent with South Dakota’s Department of Social Services, Adoption Subsidy Program, the definition of special needs includes “a child’s age, race, or religion” which has pathologized simply being Indian. In a state where Native Americans make up only “15.5 percent of the child population,” yet account for “54 percent of the youth foster care population,” per the Lakota Law Project, it’s lucrative to steal Indian children from tribes because they have little to no voice in a representative democracy. It’s worth mentioning that South Dakota ranked 47th in a 2015 nonpartisan Center for Public Integrity investigation where the state received an “F” for everything from Public Access to Information to Electoral Oversight and a “D” for Judicial Accountability.
Pennington County, South Dakota, the main culprit but not the only one violating the Indian Child Welfare Act (ICWA) was ordered to take corrective actions in 2015, but ignored the federal court decision and appealed the results to the 8th Circuit. The stall tactic comes as no surprise given evidence that reveals “a revolving door” from the “high-ranking state offices including the Governor, Lieutenant Governor, and private foster care facilities that continue to receive large no-bid contracts from the state.” The NPR investigation reported how one member of the Crow Creek Indian reservation, in Buffalo County had her twin babies taken by the state when she was “rumored” to be using drugs even though she had never had any legal problems. Two months later her two older children never arrived home from school as the state absconded with them. After exhausting all her options, she appealed to the tribal council who passed a resolution warning the state that if the children were not returned, “it would be charged with kidnapping and prosecuted.” Weeks later a car pulled up at the mother’s home and her children were dropped off – one and a half years after they were illegally taken. The mother was never charged with any crime and it was later discovered that at least one of her children had been mistreated while in foster care. In recent years, the Crow Creek tribe of 1,400 members has had 33 children taken and all the children were placed in white foster homes.
The Indian Child Welfare Act requires the state to place Indian children with family members or other members of the tribe, unless good cause to the contrary prevents it. The federal regulation also requires the state to provide notice to tribes so they can become involved, but the state ignored these, as well as many other requirements of ICWA.
On March 10, 2017, South Dakota officials will brief the U.S. Court of Appeals for the Eighth Circuitregarding the state’s belief that it can remove Indian children from their homes “on grounds not based on evidence,” hold expedited hearings that last between “60 seconds and five minutes” within 48 hours of removal and deny parents access to legal counsel, the right to testify, or notice of why their Indian children were taken. Such actions are violations of the Fourteenth Amendment and the Due Process Clause under the U.S. Constitution, as well as multiple violations of the Indian Child Welfare Act.
Regardless of the outcome on March 10, there is an undeniable lack of federal oversight, both from the Department of the Interior, as well as Congress. Additionally, paramount to resolving such violations of law is the need for the Government Accountability Office to complete an update to its 2005 report that found at least 32 of the states in the nation not following the Indian Child Welfare Act. Moreover, state sponsored kidnapping must be de-incentivized to better protect Indian families. Last, but not least, those who flout the law must be held accountable. In Adoption of Baby Girl B., 2003 OK CIV APP24 at Para. 81, 67 P.3d 359 (Okl. App. 2003), the court stated “Every attorney involved in matters concerning Indian children subject to the state and federal Indian Child Welfare Acts is under an affirmative duty to insure full and complete compliance with these Acts.” Steven Hager, the Chief Judge for the Kickapoo Tribe in Kansas, and a Justice on the Supreme Court of the Kaw Nation of Oklahoma translates that point as “A failure of an attorney to notify the Court of even suspected Indian status could result in malpractice, sanctions or contempt proceedings.” While the Indian Child Welfare Act violations could result in actions against perpetrators, it remains to be seen if they will be pursued where appropriate.
Dr. Eric Hannel is an independent scholar and consultant. He has spoken on numerous Native American issues and published Reinterpreting a Native American Identity: Examining the Lumbee through the Peoplehood Model in 2015.