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South Dakota not following ICWA - Judge Jeff Davis ruling on appeal
A column
By Hazel Bonner
28 March 2004
Margaret Egan, Tribal Attorney in the Indian Child Welfare Program of the Cheyenne River Sioux Tribe, told members of Oyate Okiciyapi Sunday evening that the state of South Dakota is not following the provisions of the Indian Child Welfare Act (ICWA).
Egan pointed out that according to a program review completed in 2002 by the United States Department of Health and Human Services Child and Family Services Bureau the state met only three of six standards. The state met zero of seven desired outcomes established for the placement of children.
Egan said that with that report available the state Department of Social Services (DSS) still pretended there was nothing wrong with the state’s placement of Indian Children. DSS opposed the South Dakota Indian Child Welfare Act (SDICWA) legislation sponsored by Representative Tom Van Norman (D-Eagle Butte) during the 2004 legislative session.
Egan is also the contact person for the South Dakota ICWA Coalition. She can be reached by phone at (605) 964-6460. The email address of the coalition is sdicwanow@yahoo.com She said that the legislation presented by DSS to replace the ICWA legislation removed all the provisions of the initial bill and replaced it with a study commission, which the state totally controls.
She said she is concerned that the study will find what DSS wants it to find and only after the study is completed will it be presented to the Commission that includes representatives of all nine tribes. The rest of the commission contains no defense attorneys representing parents in abuse and neglect or parental rights termination proceedings.
Oyate Okiciyapi Has asked to be added to the SDICWA coalition’s list of members. Egan said that the coalition is developing a brochure on the rights of parents in child custody proceedings. She will provide us with a supply of those brochures.
A chart comparing the provisions of ICWA in the area of reunification of the family with the exceptions of that requirement in the national Adoption and Safe Families Act (ASFA) and the South Dakota version of that act that I prepared for use in my Child Abuse and Neglect class at Oglala Lakota College was distributed.
The Federal ASFA law was enacted for the purpose of putting parental rights terminations and adoptions on a fast track by exempting certain parents from the requirement for making best efforts to reunite the family. Certain exemptions in the federal law are required to be in each state law, with each state allowed to add its own exemptions.
South Dakota added provisions that no effort for family reunification needs to be made if the parent has a history of alcohol or drug abuse; or if the parent has had a child removed from them in the past on one or more occasions. The federal law requires exemption of parents who have had parental rights terminated to a child in the past.
Since the large majority of child removals in South Dakota are of Indian children and alcohol abuse is a major problem with indigenous populations, these exemptions have a disproportionate effect on Indian families and children.
ICWA applies in most child custody proceeding involving an Indian child. An Indian child need not be an enrolled member of a tribe, but must be eligible for enrollment, which means a natural parent must be an enrolled member.
A child custody proceeding includes foster care placements. The act defines those placements as 1) any act removing an Indian Child from its parent or Indian custodian, 2) for temporary placement in a foster home, institution, or home of a guardian or custodian; 3) where the natural parent cannot have the child returned upon demand, and 4) the natural parents rights to that child have not been terminated.
In a case in Rapid City several years ago the US District Court determined that ICWA applied to the removal of an Indian Child from her mother and placement by the police in the home of her Indian Grandmother. The mother attempted to take the child with her back to their home in North Dakota and was stopped from doing so by the police.
There are only two exemptions to the provisions of ICWA. Those are custody disputes between two natural parents; and a removal of a child that results from the child having committed a delinquent act, which would be a crime if committed by an adult.
I pointed out that a large portion of placements with the Department of Corrections are for status offenses that are illegal only because of the age of the juvenile, like truancy or alcohol offenses, or for Child in Need of Supervision petitions.Those removals are not exempted from coverage by ICWA, yet I have never seen an ICWA affidavit or notification of a tribe required in such cases. Egan said she had not heard from anyone at DOC.
Egan reported that a case is currently pending before the South Dakota Supreme Court that appeals a ruling by Judge Jeff Davis, Seventh Circuit Court Judge in Rapid City. The ruling said that if AFSA applies the state is exempt from the requirements of ICWA. Egan believes that that ruling is not correct. If the SD Supreme Court upholds the ruling, she said it will be appealed to the U.S. Supreme Court because of the importance of the issue to all Indian families and children in South Dakota.
Jennifer Coleman, an attorney with Dakota Plains Legal Services appealed the termination of parental rights on behalf of an Indian father. The Oglala Sioux Tribe On Track ICWA program intervened at the appeals level and the Cheyenne River Sioux Tribe is an intervener in the appeal.
ICWA requires that an effort to keep the child first with a member of the child’s extended family; then with a member of the child’s tribe; third with another Indian family and only if those efforts fail is the child to be placed in a non-Indian home. The DHHS study mentioned above found that SD did not meet its requirements in maintaining a child’s “connection to their family, faith, culture, community and friends.” The report also said that South Dakota does not diligently recruit foster and adoptive families that reflect the ethnic and racial background of the children being placed.
Egan pointed out that there must be best efforts made to prevent the removal of the child, which rarely occurs. The state always claims that it is an emergency and the child is in imminent danger of harm, if not removed. Once the child is removed best efforts to reunite the family are required by ICWA in all cases.
I pointed out that ASFA provides a financial incentive to get children into adoptive homes because the state receives a payment of $4,000 for each healthy child and $6,000 for each special needs child removed from foster care and placed in an adoptive home. Most indigenous children removed are labeled as special needs.
OTHER MATTERS. Members also discussed some issues relating to the jail and a complaint about indigenous youth being herded out of the public library and questioned by a police officer who threatened them with a charge of loitering. I could find no city ordinance or state law relating to loitering.
A correction to the $2.00 payment for voter registrations is in order. It is sponsored by the Tribal Voter Registration Project, not the Sierra Club. Persons registering can donate all the money to SANI-T, split 50/50 with them or keep all the money themselves. Chaz Jewett works for the Sierra Club, and is active in this project. She presented the program for SANI-T at the last monthly meeting.
I reported that persons in jail should be eligible to register to vote as most of those serving sentences are convicted of misdemeanors or they would not serve their time in jail. At least half of the persons held in jail have not been convicted of the crime for which they are held, so those persons, if not already registered to vote, should be eligible to register to vote. Those who have prior felonies and were still serving the sentence for that at the time of the current arrest would not be eligible.
Absentee ballots should be available to persons in the jail. I’ll have to check on that. Is anyone interested in helping with a campaign to register voters in our jails and to see that they have access to absentee ballots if they are going to be in jail at the time of the primary in June? We need to get on that immediately!
The topic of discussion at the meeting on April 4 will be the issue of medical care and other problems in the Pennington County Jail. An update on staph infection and lawsuits against the jail will be made as well as a report on voter registration and education and absentee ballots in the jail.
If you have any information about taking of children, termination of parental rights or other problems please contact Egan, Oyate Okiciyapi, or myself. Remember, 100 years from now, it will not matter what kind of house you lived in, what kind of car you drove or how much money you had in your account. What will matter is if you made a difference in the life of a child. (Author unknown).
Bonner is a freelance writer who writes from her home. She can be reached electronically at hbonpidge1@hotmail.com; by mail at PO Box 3712, Rapid City, SD 57709-3712; or by phone at (605) 343-4467.
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