For more information see also DLN Issues, Native Child and Family Rights and DLN Issues, Juvenile Justice
Native Child and Family Rights and Resources
For the children in exile
We hope to broaden our focus beyond the Indian Child Welfare Act because many situations in which traditional families have faced having their children removed go beyond ICWA. Other facets and factors often come into play that involve the South Dakota Department of Corrections (DOC), South Dakota Children and Family Social Services agencies, privately contracted institutional "Mental Health" organizations such as Heartland Behavioral Services of Nevada, Missouri, to name a few. Also, a big factor involves tribal jurisdiction issues and losses of funding for tribal Social Services because of mismanagement. These factors are intrinsically connected on both Rosebud and Yankton reservations, and they leave traditional People open to state intervention by personnel that are not aware of the ICWA provisions, lack training, or have become associated with tribal corruption.
"In South Dakota, 40 percent of all adoptions made by the State's Department of Public Welfare since 1967-68 are of Indian children, yet Indians make up only 7 percent of the juvenile population. The number of South Dakota Indian children living in foster homes is per capita, nearly 16 times greater than the non-Indian rate."
Except from the Indian Child Welfare Act of 1978
Casey Family Programs
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Above is a photo of Casey Family Programs, a 6.1 million dollar facility in Mission, South Dakota built only recently. It's the contention of the DLN that the facility is a vehicle waiting to harvest Indian children and continue the saga of disrupting Indian families and acts of cultural and outright genocide.
Despite the Indian Child Welfare Act of 1978 (ICWA), adoption and fostering out of Indian children into non-Indian families continues at levels that can only suggest a continuing program of ethnic cleansing.
The crisis is discussed in the following excerpt from the United Nations' Economic and Social Council, Commission on Human Rights, 57th session, Item 13 of the provisional agenda, "Rights to the Child", a written statement submitted by the International Indian Treaty Council.
The International Indian Treaty Council (IITC) commends the Rapporteur of the Committee on the Rights of the Child, Mr. Jaap Doek for his work for full implementation of the Convention on the Rights of the Child (CRC). In his report to the 18th session of the Working Group on Indigenous Populations (E/CN.4/Sub.2/2000/24) Mr. Doek spoke "...of the moral obligation upon the United States (of America) to refrain from taking measures which would negatively affect the situation of Indigenous children in that Country."
The IITC submits to this body a dismal report of the critical situation for American Indian children living in the U.S. impacted by dire poverty, poor health conditions, environmental contamination and widespread removal by adoption or foster care from their Indigenous communities.
In 1998, it was reported by that 38.6% of all American Indian, Aleut and Eskimo children live in poverty. And although the Report cites an "unprecedented economic growth and employment in the United States," during this time period, it notes that the highest rate of unemployment is reported for Native Americans, in some cases over 50%.
In March of 2000 the South Dakota Advisory Committee to the US Commission on Civil Rights reported that men in Bangladesh have a higher life expectancy than Native American men in South Dakota, USA, and that rates of death from a variety of causes was considerably higher for Native Americans than for the general US population, including alcoholism (579%), tuberculosis (475%), and diabetes (231%).
Even more tragic, infant mortality in Indian Country in the US was reported to be double the national average, and Pine Ridge Lakota Indian Reservation in South Dakota has the highest infant mortality rate in the Country.
In an intervention submitted to the Commission's 54th session, E/CN.4/1998/NGO/66, IITC reported that United States Public Law 95-608, the "Indian Child Welfare Act" (ICWA), implemented in 1978 to curtail the high rate of removal of Indian children from their communitiesby adoption to nonIndian families, was being eroded by a more recent presidential initiative called the Multi-Ethnic Placement Act (MEPA, 1995), which eliminated cultural and social standards for adoption.
Despite the provisions of ICWA, "Transracial placement" of Indigenous children in the US continues today at a rate that is alarming to American Indian Peoples. In 1976, a nationwide study found that up to 1,400 Indian children per year were being adopted by non-Indian homes. By 1997 it was estimated that more than 50,000 Indian children in the U.S. lived away from their cultural roots as adoptees in non-Indian families! (American Humane Association). This statistic does not include many thousands of Indian children living in protective custody of foster parents. It is well documented that Indian children are placed in out-of-home care at a rate 3.6 times greater than that of the general population, a direct and ongoing threat to the preservation of Indian families, cultures, languages and social structures.
In 1996, at the direction of President Clinton, the Secretary of Health and Human Services developed a plan of specific strategies to move children more quickly from foster care t opermanent homes and to meet the goal of at least doubling adoptions and other permanent placement over the next five years. This plan, Adoption 2002, appears to be in conflict with the intentions of the ICWA and the Convention on the Rights of the Child articles 5, 8,9, 14, 20, 29, and 30 as it promotes and rewards transracial placement and removal of Indigenous children for adoption outside their own extended families, cultures and communities.
Current studies have investigated the damaging effects of transracial placement which include psychological damage, ethnic identity confusion, self-concept formation difficulties, and adolescence repercussions such as alcoholism and high rates of suicide.
The traditional Native American extended family and tribal social structure makes the need for removal of children from their communities and the tribe unnecessary violation of Indigenouschildren's human rights and cultural survival. The wholesale placement of American Indian children into non-Indigenous homes should be stopped.
Please continue reading at the DLN Issues Native Child and Family Rights page.
NOTE: Originally printed as Rosebud vs. SDDSS in the Lakota Journal, the title has been changed here for sake of clarity. For more information on the class action lawsuit please go to the DLN Issues - Juvenile Justice page.
by Ruth Steinberger
A class action lawsuit has been filed in Rosebud Sioux Tribal Court against the South Dakota Department of Social Services, and Director Scott Dutt and named caseworker Lisa Havemann, seeking relief that would prohibit the South Dakota Department of Social Services (SDDSS) from continuing to use Temporary Emergency Custody orders to take temporary legal custody of Indian children when there is no emergency. The emergency order allows children to be removed from their families with no prior hearing and parents are routinely denied due process of law for reasons such as problems at school. The suit also seeks to prevent SDDSS from seeking and withholding Supplemental Security Income monies from those families, also without due process.
The suit contends that the South Dakota Department of Social Services regularly removes Indian children who are enrolled members of the Rosebud Sioux Tribe from their families under a Temporary Emergency Custody (TEC) order obtained through tribal court when no actual emergency exists, and provides the parents with no prior notice or opportunity for a hearing, sometimes holding the child for several months before the family is provided with a hearing. Importantly, the suit clearly outlines the impact that the loss of a child, even temporarily, has on families.
The suit seeks a judgment that would clarify the rights of named Plaintiff Berlinda Swalley, her son Michael Swalley and all other children, parents and guardians on the Rosebud Sioux Indian Reservation. The suit seeks a declaratory judgment that halts the SDDSS' practices on the Rosebud Sioux Indian.
Swalley's son was removed on a Temporary Emergency Custody order, ultimately the reason was because he was allegedly having problems at school. Following that action, Defendants Dutt and Havemann presented the TEC order they got from the tribal court to the federal Social Security agency and had Swalley's SSI money diverted to the South Dakota Department of Social Services bank account. Havemann and Dutt then pursued Swalley's other three children as well, and at a hearing eight months after the children were removed form the home, Swalley was able to prove that allegations against her were false. Following eight months of separation from the family, the case was dismissed because there was no evidence of child neglect or abuse. The suit contends that the use of emergency procedures in non-emergencies is creating family separations that are unnecessary, and that extend for long periods of time. The Department of Social Services continued to withhold the money after the child was returned to the mother claiming that they intended to regain custody of the child who received the SSI benefits in the future.
The suit was filed by Dana Hannah, Public Defender for the Rosebud Sioux Tribe. Hannah said, "This complaint was filed because people in the tribe do not have due process. Right now the big question is jurisdiction. The state contends that the tribal court has no jurisdiction over them, yet they go to the tribal court to get the emergency order." In response to them question of why the state Department of Social Services are allowed to take custody of on-reservation Indian youth, Hannah explained, "Children need protection. Some agency needs to do that. The tribe lost its' agency a few years back when the BIA shut down the Rosebud tribal agency for non-compliance. Child Protective Services are a very important function. Obviously it would be better for the Rosebud Sioux Tribe to do this itself, but DSS has inserted itself. If the tribe isn't doing it, the state will."
Rosebud Sioux Tribal Vice-Chairman Ike Schmidt explained, "I've been working with Dana Hannah on this issue since I got into this term of office. Hannah brought this to the attention of tribal officials, and apprised us that he was looking into the emergency placements. It immediately brought up the need for amendments of our tribal code." Schmidt explained that according to state law, a family has the right to a hearing on an emergency placement within 48 hours of a child being removed from the home. However, under the tribal code there is no time limit. Schmidt said, "This is open ended and it gives room for extremes and extremes have taken place. 30 days have lapsed before parents even found out where their kids were. Nine out of ten are placed off the reservation." Additionally Schmidt said that with new shelters on the reservation, youth in emergency situations will be able to be placed on the reservation. He said, "We have an emergency shelter on the reservation that is fully licensed. Final details are being ironed out." The shelter will be able to assist youth up to age 16.
Lisa Havemann and Scott Dutt of South Dakota Department of Social Services were reached for comment but had no comment at this time.
Class Action Suit Against the South Dakota Department of Social Services
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