Officials in two states that routinely destroy Native American families make their position clear: We don’t care, we don’t have to.

South Dakota tears apart families at a rate well above the national average. Native American children are 13% of the child population and 74% of the foster child population.  But hey, a slogan is a slogan, right?

There were two important news stories last week from states that destroy astounding numbers of Native American families every year.  The stories make one thing clear: State officials and many state lawmakers don’t give a damn about it. 

● Montana continually vies with West Virginia for the title Child Removal Capital of America.  In Montana that’s partly because the state family police agency tears apart so many Native families.  The Montana Free Press reports that Native children are 10% of the state’s child population and one-third of the foster child population.  The Free Press story is filled with such data – and filled with bland, boilerplate, buck-passing responses from state officials like this one from the head of the state family police agency: “I think it’s really about continuing to have the conversation.”  The closest thing she has to a concrete solution is no solution at all – making it easier to place Native children in hidden foster care. 

● It’s even worse in South Dakota, another state that takes away children at a rate well above the national average.  In South Dakota, Native Americans are 13 percent of the child population and nearly three-quarters of the foster-child population, an issue first exposed in 2010 by NPR.  South Dakota Searchlight and the Sioux Falls Argus Leader returned to the subject with an excellent series last year, documenting how the state cuts a swath of destruction through Native families.  Now they’ve followed up with a story about legislative proposals for change.  

One of those proposals is one that most state legislatures would routinely approve, since it delays actually doing anything: creating a task force.  But those who want to see change are having trouble getting the South Dakota Legislature to do even that much. 

More substantive legislation already has been defeated.  Under the federal Indian Child Welfare Act, states are supposed to make “active efforts” to keep families together, a higher standard than the “reasonable efforts” required un federal law (but almost universally ignored) for other families.  A bill to require active efforts for all South Dakota children – and to explain exactly what that term means – was defeated yesterday.  

Even the head of a local Court-Appointed Special Advocates program, herself a Native American, favored the bill.  As the Argus-Leader reported: 

For example, if a parent needs to overcome substance abuse, an active effort would be helping that parent with a ride to a treatment class, said Kehala Two Bulls, the executive director of the 7th Circuit Court CASA program. A reasonable effort would be giving that parent a list of treatment programs. 

I would disagree that a list of treatment programs is anywhere near reasonable as an effort – it’s pretty typical of the failure to make reasonable efforts -- but you get the idea.  Getting the parent to the program is a reasonable effort.  Bringing home-based drug treatment to the parent, as Connecticut does in some cases, is an active effort. 

But the head of South Dakota’s family police agency, Matt Althoff said, presumably with a straight face, that they’re already making “active efforts” in the cases of Native American children who, again, make up 74% of the state’s foster care population.

An opponent of the bill said: “How do we put something in into law when everybody is interpreting this differently?”  And here I’d been operating under what is, apparently, the absurd notion that this is why you put things into law in the first place.

New columns on confessions of a caseworker and the state where kangaroo court is always in session

Of all the crimes against children committed in the name of “child protection,” none is worse than when white America weaponized child welfare in an effort to destroy the culture of Native Americans.

Today, of course, people no longer say that the goal of child welfare is to “kill the Indian, save the man.” But whatever the intent, a series of federal court rulings from South Dakota make clear that Native children remain in danger from a state child welfare system out of control.

Read our column in Youth Today about South Dakota Child Welfare: Where Kangaroo Court is Always in Session.

One of the things caseworkers often say is just not true. Caseworkers often claim they are “damned if we do and we’re damned if we don’t.” But when it comes to taking away children, caseworkers are only damned if they don’t. It’s one of the reasons so many children are needlessly consigned to the chaos of foster care.

Now, a leader of a union representing caseworkers has admitted as much.  

Read our column in Youth Today: Confessions of a Caseworker: We Remove Kids to Protect Ourselves

Indian Child Welfare Act: The real tragedy is that it’s not enforced

Before ICWA: The Carlisle Indian Industrial School, 1900

This is an expanded version of a column that appeared originally in the Chronicle of Social Change

Casey Jo Caswell of Lansing, Mich. made a terrible mistake. Homeless and jobless, she turned to Michigan’s child welfare agency for help raising her son, Ricky. But the agency offered no help with housing, no help with a job, and no help with education.  They told her to surrender the child to “temporary” foster care, and then rushed to terminate her parental rights.

Ricky was placed with middle-class foster parents in a nice, big home, first as a foster child, then

it became his adoptive home.

Once, during a counseling session, the Detroit News reported, the boy was playing with two plastic horses, when he said: “This little horse is going to die if he can’t be with his mother.” That proved prophetic.  Ricky Holland’s white adoptive parents murdered him. They stuffed his body in a trash bag and left it by the side of a road.

Yet in all the years since, no one has suggested that, because of this horror story, the so-called Adoption and Safe Families Act (ASFA), the law that spurred the rush to place Ricky in the home where he was adopted to death, should be repealed or curbed. That’s understandable. There’s an excellent case for curbing ASFA, but it shouldn’t be built on horror stories that unfairly stigmatize entire groups.

Yet Marie Cohen offers a similar horror story involving a Native American home (recycled from the far right Goldwater Institute ) as the only evidence in support of her claim in a column for the Chronicle of Social Change, that the Indian Child Welfare Act (ICWA) should be curbed – or maybe never should have been passed at all; she’s not clear about that. The Goldwater Institute has filed a class-action suit against ICWA.

Cohen dismisses in a single sentence the horrors inflicted on Native American children that led to passage of ICWA. In fact, from the 19^th Century through the 1960s, American child welfare agencies tried to effectively eradicate Indian culture and, indeed, Indian tribes, through the expedient of taking away children. First, they were warehoused in hideous orphanages. Later, there was a campaign of mass adoptions. Melissa Harris Perry called the orphanages an “explicit cultural extermination mission.” The Lakota People’s Law Project is calling for a Truth and Reconciliation Commission.

By the mid-20^th Century people stopped actually saying “kill the Indian, save the child” but it took ICWA to change practice – though it hasn’t changed nearly enough.

Opponents of ICWA respond exactly as the Supreme Court majority dealt with the Voting Rights Act: Well, yes, racism used to be a problem, but not anymore!

There are two problems with this:

First, if you curb a bad practice by passing a law and then you eviscerate the law, it’s not hard to figure out what will happen next – witness the wave of voter suppression laws that followed the Supreme Court voting rights decision.

Second, contrary to what John Roberts and Marie Cohen seem to think, racism isn’t dead.

In 2003, Dewey Sloan, chief juvenile prosecutor in an Iowa county where Native American children were in foster care at a rate seven times higher than the rate for white children told the Des Moines Register, "I don't think there's anything in any of these cases that points to something positive about Indian culture, except the culture of drugs and the culture of poverty and the culture of abuse."

Or consider what happens to Native American children in South Dakota. That state tears apart families at a rate 80 percent above the national average.  And while Native Americans are 15 percent of the population, they are more than half of all foster children. The horrors inflicted on Native American children by the state were documented in a heart-rending series by NPR – in 2011.

NPR’s findings were confirmed by a federal judge last November. And, in another lawsuit, the federal government is charging the South Dakota Department of Social Services with discriminating against Native American job applicants.

So yes, there’s a problem with ICWA alright – the problem is it’s not being enforced.

And the right-wing propaganda about ICWA has been remarkably effective – even to the point of getting some on the left to help do their dirty work.

In Santa Clarita, California, Rusty and Summer Page took in Lexi, a child who is part Native American, knowing at the outset that the plan was to return her to her own father or, if that wasn’t possible, to extended family. But when the child’s tribe moved to do just that, the Pages went to court. When they finally ran out of legal options, they created a media circus. Though it was the Pages who stalled and stalled the return of the child, that didn’t stop them from claiming in a petition  -- on Change.org – that theirs was “the only family that she has ever known.” The claim was echoed in one news account after another.

The claim is false. Lexi was in continual contact with her extended family – and they already had taken in Lexi’s sister.

Almost every news account claims the child was sent to relatives, in the words of one story, “all because of her Native American heritage” and ICWA.  But federal law also calls for giving preference to relatives, and keeping siblings together – precisely because both practices are best for children.

Indeed, in a series of tweets, Nicole Cliffe, editor of The Toast explained the entire case better than most of the mainstream media.

 Cohen bemoans the fact that under ICWA, child welfare agencies are supposed to make “active efforts” to keep families together, theoretically a higher standard than the “reasonable efforts” required for non-Native children.

But the reasonable efforts requirement was never enforced and was rendered effectively meaningless by ASFA.  In Michigan, where Ricky Holland died in his adoptive home, 40 percent of judges surveyed admitted that they lie and certify that “reasonable efforts” were made to keep families together even when they don’t really believe it. 

And the fact that four separate studies since 1996 found that 30 percent of foster children could be home right now if the families simply had decent housing further illustrates that in practice “reasonable efforts” often means zero effort. So in real life, “active efforts” means ever-so- slightly more than zero. 

When it comes to the treatment of Native American children, that’s the real horror.

Progress in South Dakota child welfare

There’s still a long way to go, but the NPR stories are getting results

           

           It’s been nearly 40 years since I first started following child welfare issues.  In all of that time, some of the finest journalism I’ve ever seen – or, in this case, heard - was a three part NPR series in October, 2011 by reporter Laura Sullivan and producer Amy Walters about the horrors inflicted on Native American children by the South Dakota Department of Social Services.

            If you haven’t heard the stories yet, by all means stop reading this and listen.  I’ll wait.

            See what I mean?

            With all the changes in the American media landscape in recent years, there’s been some debate over whether excellent journalism like this still can make a difference.  In this case, the odds against making a difference were made greater by the hyper-defensive response of state government and, sadly, by the response of some South Dakota media that rushed to defend that government. 

            Nevertheless, the NPR stories have produced significant change for the better, and more such change is likely.

            ● For starters, even as the state denied doing anything wrong, it changed what it was doing.  In the two years after the NPR stories aired, the number of children torn from their families by South Dakota authorities over the course of a year dropped by one-third.  Nationwide, during this same period, the rate at which children were taken from their families remained virtually unchanged. 

            That’s the good news.  The bad news is that South Dakota was such an extreme outlier that even with this improvement, in 2013, the state remains an outlier.  It still took away children at a rate 80 percent above the national average, when rates of child poverty are factored in.

(The data take us only to 2013, because that’s the most recent year for which the federal government makes state-by-state data available online.  The wait for these data used to be a little over one year, which was bad enough.  I don’t know why the federal Administration for Children and Families is taking so long to produce such basic figures.)

            ● More good news: The NPR stories got the attention of the state chapter of the American Civil Liberties Union – which sued the state.  The ACLU joined the Lakota People’s Law Project, which had been fighting a lonely battle against the state for years.  They won.  As NPR reported:

A federal judge has ruled that the state Department of Social Services, prosecutors and judges "failed to protect Indian parents' fundamental rights" when they removed their children after short hearings and placed them largely in white foster care.

According to the suit, some of the hearings lasted less than 60 seconds. The suit says some parents were not allowed to speak at the hearings or in some cases hear why their children were being removed.

            These kinds of sham hearings are common across the country.  (See NCCPR’s Due Process Agenda for details.)  An official of the Indian Child Welfare Association told NPR the decision could affect how these cases are handled nationwide. 

            ● Still more good news: One of the ways to reduce racial bias in child welfare is to create a more diverse staff.  Apparently the South Dakota Department of Social Services has gone to great lengths to avoid this.  Such great lengths that now the federal government is suing DSS for systematically discriminating against Native American job applicants.

            Progress will come slowly.  The extent to which South Dakota officials hold Native Americans in contempt can be seen by what happened in connection with another response to the NPR stories.  In 2013, the federal government sent top officials from the Department of Health and Human Services and the Bureau of Indian Affairs to South Dakota for a summit meeting with Native American tribal leaders and state officials in an attempt to resolve the issues.

            The South Dakota officials never showed up.

Foster care in South Dakota: Federal lawyers may help SD tribes enforce ICWA

Nearly half a century after Robert F. Kennedy sent federal marshals to enforce civil rights in Mississippi, the federal government is considering taking a similar step to enforce the rights of Native American children in South Dakota to remain safely in their own homes, free from needless foster care.

The Bureau of Indian Affairs is considering sending federal lawyers to South Dakota to help tribes enforce the rights of their children under the Indian Child Welfare Act.  The routine violation of those rights was exposed in a three-part NPR series in October.

BIA is considering this major enforcement action in response to a suggestion by U.S. Rep. Jim Moran (D-VA).  Moran wrote to BIA after hearing the NPR stories.   This link goes to the BIA’s full response to Moran.

BIA also plans to convene a summit early in 2012 in South Dakota bringing together all “stakeholders” including the tribes, the South Dakota Department of Social Services, the South Dakota Office of Tribal Relations and others.

It speaks volumes about the extent to which South Dakota is harming Native American children, and violating federal law, that BIA is considering such a forceful response to NPR’s excellent reporting.  And it’s good news not only for Native American children but for all South Dakota children.

As I’ve noted in a previous post to this Blog, when it comes to child welfare, South Dakota is among the worst by almost any measure.  It takes away children at one of the highest rates in the nation, it places children in the worst form of “care” – group homes and institutions – at one of the highest rates in the nation, and it tears apart Native American families at one of the highest rates in the nation.  In short, South Dakota hit the trifecta of child welfare failure.

South Dakota tears apart families at the third highest rate in the country, even when rates of child poverty are factored in.  This obscene rate of removal does nothing to keep children safe.  On the contrary, states that take away proportionately far fewer children are nationally- recognized as leaders in keeping children safe. 

Of course anything that curbs the blatant bias and the take-the-child-and-run mentality that dominate South Dakota child welfare helps Native American children avoid the enormous trauma of needless foster care.  But curbing needless removal of children also gives workers more time to find children in real danger – and that makes all South Dakota children safer.

NCCPR commends BIA for considering this bold move.  We hope they follow through.

Foster care in South Dakota: When all else fails, try xenophobia

Apparently those NPR stories about the damage done to Native American families by child protective services in South Dakota have made that state’s governor, Dennis Daugaard, very nervous.

He refused to actually be interviewed by reporter Laura Sullivan and producer Amy Walters.  Instead, he issued a five-page rebuttal to the series – before it ever aired.

What is so fascinating about the rebuttal is that it leaves all of the most important points in the series unrebutted.  There is no response to the fact that South Dakota tears apart families at a rate vastly above the national average.  There is no response to the fact that Native American children are trapped in South Dakota foster care at a rate nearly four times their rate in the general population.  In fact there is no response to anything in the NPR stories about the actual harm done to Native American children.

Instead the governor obsesses over part two of the series which was all about – the governor.  That was the part which discussed how, back when he held the part-time job of lieutenant governor, his full-time job was running the Children’s Home Society of South Dakota – and how, during this time, CHS did remarkably well when it came to obtaining state contracts.

Melanie Sloan, executive director of Citizens for Responsibility and Ethics, told NPR that it’s “a massive conflict-of-interest.”  The governor’s defense is that everybody in South Dakota knew all about it – it’s a small state – and anyway, he was only doing it for the kids. 

It’s certainly true that Daugaard made no secret of his connection to CHS – as NPR reported, he bragged about it in his campaign for governor. He may well have believed, sincerely, that what CHS was doing was best for the children. (NPR never suggests otherwise.)   Most people who run great big child welfare agencies that hold kids in foster care believe that – and only rarely does the mass of objective evidence to the contrary change their minds.

Whether CHS got the contract to warehouse kids or someone else did doesn’t make a lot of difference to me.  The issue is that South Dakota not only tears apart families at one of the highest rates in the nation, it also dumps the kids into the worst form of “care” – group homes and institutions – at one of the highest rates in the nation. But the governor’s past employment raises another concern: Anyone that emotionally invested in warehousing children is going to find it hard to face up to the reality of how much it harms children.

A DIFFERENT KIND OF CONFLICT

The role of CHS raises questions about a different kind of potential conflict of interest – the kind that comes with what is known in the corporate world as “vertical integration.”  During Daugaard’s time as Lieutenant Governor, CHS grew so huge that a good case can be made that, as a practical matter, CHS runs child welfare in South Dakota.

● CHS does the examinations of children to determine if they were abused or neglected.

● CHS trains the state caseworkers who decide whether to remove a child from the home.

● CHS screens the potential foster parents, both strangers and relatives, who might take in those children.

● CHS trains the foster parents.

● CHS runs lots of group homes and institutions.

So if CHS decides a child is abused, it increases the number of potential candidates for CHS group homes and institutions.  If CHS trains the caseworkers, will those caseworkers be trained in a way that makes them more likely to take away the child – and send that child to a CHS institution?  If CHS screens family foster homes that are, in effect, “competitors” to CHS group homes and institutions, will they set standards many of those family foster homes can’t meet?

I’m not suggesting that any of this would be some kind of conscious conspiracy.  But rationalization is powerful.  Any organization whose livelihood is dependent on substitute care is going to persuade itself that lots and lots of children need substitute care.

It’s no different from doctors who are more likely to perform unnecessary surgery when paid on a fee-for-service basis or hospitals which extend patient stays when they are paid by the day.  In both cases, the medical personnel almost certainly have persuaded themselves that the patients are really, really sick.

The governor’s “prebuttal” as it was aptly described by one reporter, addresses none of this.  And, as I noted at the outset, it says nothing about the entire issue of the destruction of Native American families.

“SHOW THEM THE WALL”

The only support the Governor can come up with for the claim of bias is a statement from his own press secretary, Joe Kafka (I’m not making that name up) and an e-mail from reporter Sullivan requesting an interview. 

In fact, rather than showing bias, the e-mail is an example of exactly what good, careful reporters are supposed to do.

When I was a reporter in the late 1980s, the newspaper where I worked brought in a superb investigative reporter as a guest speaker.  In discussing the need for fairness in investigative reporting, this reporter urged us, as we reached the conclusion of any project, to go to anyone who may not come out looking good and “show them the wall.”  By that he meant, lay out every specific point that raises questions about the subject and give that subject a full opportunity to respond.

That is exactly what Sullivan does in her e-mail.  She spells out exactly what she and producer Walters have found so far and asks the Governor to please tell his side of the story.  This is precisely the opposite of the kind of “ambush interview” we’ve all seen on some television newsmagazine programs, the kind that gives investigative reporting a bad name.

Governor Daugaard should have welcomed the e-mail and told his side of the story. Unless of course, he had no real answer.

Apparently he doesn’t.  Because the governor’s other tactic was to change the subject.

THE PENULTIMATE REFUGE OF A SCOUNDREL?

If, as Samuel Johnson said, false patriotism is the last refuge of scoundrel, the next-to-last is xenophobia.

And so, in the very first paragraph of his prebuttal, the governor notes that Sullivan “a native of San Francisco, works for Washington DC-based NPR.”

Horrors!  Washington and San Francisco!  Obviously, anyone with a background like that simply has it in for South Dakota.  (I imagine the only thing worse would be to work in the Washington area and be from New York City – like me.)

Similarly, after two Members of Congress said they were launching an investigation, an aide to the governor complained that they are from “other states” and didn’t speak to the South Dakota Department of Social Services first.  The real question is why the South Dakota Congressional delegation so far has refused to speak up for their Native American constituents – and all the children harmed by the rampant misuse and overuse of foster care in the state.

But it seems the governor underestimated his constituents, or at least the state’s journalists – because they don’t seem to be buying it.

See, in particular the work of Denise Ross, a reporter for the Daily Republic in Mitchell, S.D.  (She’s the one who came up with “prebuttal.”)  In a post on the newspaper’s Blog she speaks highly of the governor, and expresses her conviction that he really does care about the kids.  But she also writes:

The much bigger, longer-standing issue is whether South Dakota complies with the federal Indian Child Welfare Act and other laws, for example when social workers enter Indian reservations with which the state has no agreement and remove tribal children from their homes. The Crow Creek tribe threatened to prosecute for kidnapping in one case, NPR reported, and the children were promptly returned to their relatives. …

Here’s my hope, especially given my enduring belief in Daugaard’s character. I hope that he acknowledges that the state contracts for CHS look bad, but I hope he then vows as governor to look into South Dakota’s foster care system, our compliance with ICWA and our rate of taking children from their home – about 3 times that of other states.  I hope he works as hard at that as he worked as a young lawmaker to bring some reform to juvenile corrections. This time, he has a lot more power to affect change.

I don’t know where Ms. Ross was born and raised.  But right now, Gov. Daugaard, she’s sending you a message straight from Mitchell, South Dakota.


CORRECTION: This post has been corrected to fix an error in the name of the newspaper in Mitchell, S.D.  I can only imagine what Joe Kafka will make of that.

UPDATE: Foster care in South Dakota: Members of Congress investigate NPR’s revelations

            Rep Ed Markey (D-Mass.) and Rep. Dan Boren (D-Okla.), the ranking minority members of the House of Representatives committee and subcommittee with jurisdiction over Indian affairs, have launched an investigation of the revelations in NPR’s brilliant three-part series about what child protective services in the State of South Dakota is doing to Native American families.

            That’s another good step in the right direction, coming as it does after the announcement from the South Dakota ACLU.