Evaluating the Statements in the ICWA Directors Report Executive Summary

In my previous post, I wrote about a Report to Congress that was prepared by the Lakota People’s Law Project and the ICWA Directors of at least some of South Dakota’s nine tribes.  Six of the ICWA Directors approved the Report during a meeting on November 29, 2012.  My understanding is that it is now being sent to the tribal councils of the nine tribes for approval, and that the full report will not be made public before it is submitted to Congress.  However, the Executive Summary from the Report is available on the website of the Lakota People’s Law Project.

The Executive Summary makes it appear that the Report will evaluate the accuracy of the following claims:

  1. “While Indian children make up 15% of the child population in South Dakota, over one-half of the children in foster care administered by the state are Indian.”
  2. “[South Dakota] is removing 700 Indian children every year from their homes…[which is] almost three times the rate of other states.”
  3. “[These removals are done] sometimes under questionable circumstances.”
  4. “[South Dakota is] failing to place these children with their relatives or tribe—as is required under ICWA … Indian children are being placed in non-Indian homes or group care [by the Department of Social Services] at an alarming rate—upwards of 90%”…”
  5. “…For what appears to be profit.”

These claims are drawn from an October 31, 2011 letter written by Representatives Edward J. Markey and Dan Boren to Larry Echo Hawk, then Assistant Secretary for Indian Affairs.  A similar letter was written by Representatives Jim Moran, Mike Simpson, Dale Kildee, and Tom Cole.

Below is my brief evaluation of each of the claims that will likely be addressed in the ICWA Directors Report to Congress.

1. “While Indian children make up 15% of the child population in South Dakota, over one-half of the children in foster care administered by the state are Indian.”

This statement is very close to being true.  In fact, I made essentially the same assertion in the first sentence of this post.  The Adoption and Foster Care Analysis and Reporting System (AFCARS) data reported by the State of South Dakota to the U.S. Department of Health and Human Services indicates that slightly over 50% of children in foster care in South Dakota are Native.  That data is available as part of the “Child Welfare Outcomes 2007-2010 Report to Congress,” which is available online here.  It is a very large PDF file though, so I have extracted the South Dakota data to this file.  The 15% figure is often cited, but likely a slight over-estimate.  The HHS data sheet cited above indicates that in 2009 only 13% of South Dakota’s children were classified as Native.

These numbers are not really in dispute, but how to interpret those numbers is.  The simple fact that there is disproportionality in the foster care system is not in and of itself a problem.  For further reading, I recommend my previous post titled Disproportional Representation of Minorities in Foster Care – A Closer Look.

2. “[South Dakota] is removing 700 Indian children every year from their homes…[which is] almost three times the rate of other states.”

There are two separate claims involved here.  The first is that South Dakota is removing 700 Indian children every year from their homes.  The HHS data indicates that 1,455 children entered foster care in South Dakota in 2010.  If about half of those are Native children, as history would suggest, then it is likely that over 700 Native children enter the foster care system each year.  However, the claim is that South Dakota is removing 700 children per year.  It must be noted that five of the nine tribes in the state contract with the South Dakota Department of Social Services to provide foster care for children removed by tribal authorities and whose placements are being controlled by tribal courts.  I spoke with an official with the South Dakota Department of Social Services who indicated that children placed in DSS custody by tribal courts are included in the AFCARS foster care entry numbers.  Additionally, four tribes in the state run their own foster care systems, and receive Title IV-E funds through agreements with the State.  Children that those tribes receive Title IV-E funds for are also included in the AFCARS data.  Therefore, it is likely false to claim that the State of South Dakota is removing 700 Indian children each year.  A significant number of Indian children who are removed, including many who are in non-Native foster homes, are removed by tribal courts.  I have not been able to find any data regarding how many children in foster care are under the jurisdiction of tribal courts.

The second claim made is that South Dakota is removing Native children at almost three times the rate of other states.  This claim is rather vague, which makes it difficult to evaluate. It is unclear whether South Dakota is being compared to a few states with good numbers, or whether the claim is that South Dakota is the worst offender by a wide margin.  It is also unclear whether the statistic cited is the absolute rate of removal (number of native children removed divided by the total number of native children in the state), or whether it is the extent to which Native children are overrepresented in the South Dakota foster care system (percent of foster children who are Native divided by the percent of the state’s children who are native).  I am therefore not going to call this claim true or false, but just provide some data.

This “Technical Assistance Bulletin,” titled Disproportionality Rates for Children of Color in Foster Care, produced by the National Council of Juvenile and Family Court Judges, is the most user-friendly data source I have found on the topic of disproportionality in foster care.  The figures used reflect the extent to which minorities are overrepresented in the foster care system.  In 2010, the percentage of Native children in foster care in South Dakota was 3.9 times higher than in the population as a whole.  This is not good, but five other states, including Representative Mike Simpson’s home state of Idaho, have higher levels of disproportionality.  Minnesota has the highest disproportionality rate by a wide margin.

I do not have good numbers on absolute rates of removal regarding just Native children in South Dakota.  However, South Dakota does place children into foster care at one of the highest rates in the nation.  Information reported via the National Child Abuse and Neglect Data System (NCANDS) and found in the HHS Data indicates that 7.3 out of every 1000 children in South Dakota entered foster care in 2010.  If I’m not mistaken, this was the 4th highest rate of foster care entry in the nation (behind only West Virginia, Nebraska, and Wyoming).  As with any raw numbers, this in and of itself does not prove anything (maybe more children are abused and neglected in South Dakota than in other states).  However, I believe this is probably indicative of a situation where more children are removed from their homes than is necessary.  We can almost certainly do better.

3. “[These removals are done] sometimes under questionable circumstances.” 

I have little doubt that this statement is true.  Some mistakes are undoubtedly made, although it is almost impossible to say just how often.  This an area where reasonable people can and often do disagree, so I don’t know how define “questionable circumstances.”  There won’t be any data directly on point regarding this question, and anecdotal stories are often very one-sided.  However, South Dakota’s exceptionally high foster care entry rate noted above suggests that more children are being removed than is necessary.  I have also personally been involved in multiple cases as an attorney for both children and parents where I believed the State clung to custody of children who could have been safely returned home much earlier.

4. “[South Dakota is] failing to place these children with their relatives or tribe—as is required under ICWA … Indian children are being placed in non-Indian homes or group care [by the Department of Social Services] at an alarming rate—upwards of 90%”…”

In order for a placement in a non-native foster home to be in violation of the ICWA placement preferences, there have to be Native foster homes or qualified family members available to place children with.  The Department of Social Services cannot waive a magic wand and create more qualified Native foster parents.  In my first post regarding the NPR series, I discussed how the demographics of South Dakota make it such that the overwhelming majority of foster homes will be non-native.  I also know from personal experience that there is a shortage of foster homes in the Rapid City area.  I am extremely skeptical of any claims that there are a bunch of licensed Native foster homes ready and waiting to take in children.

That said, I believe there is a LOT of room for improvement by the State of South Dakota when it comes to promptly locating and screening family members who could be immediate placement options.  If this was made an immediate priority in every case and more resources were devoted to promptly screening potential placements, South Dakota could almost certainly make significant improvements in placing children with family, and complying with the spirit of the ICWA.

I also believe that the prospect of collaboration between the State and the tribes to create more Native placements holds a lot of promise.  Such collaboration would require cooperation from BOTH sides.  Among other things, that means not actively hiding children who are in state custody, as one tribal ICWA director proudly admitted to in part three of the NPR reports.

5. “…For what appears to be profit.”

The implication that South Dakota takes a disproportionate number of Native children as part of some grand scheme to make money is the most outrageous part of the NPR series.  This is a serious allegation in my opinion.  Who exactly is making such decisions?

I have not checked the numbers on this, but I feel the need to point out the ridiculousness of a footnote that was contained in the Markey & Boren Letter regarding NPR reports.  The text of footnote 5 from that letter is reproduced below:

The investigation reports that states have a financial incentive to place children in foster care, since states receive federal funding to address broken families. South Dakota, being a poor state, receives almost $100 million a year from the federal government. The federal government provides a financial bonus for foster care of “special needs” children, entitling states to receive at least $ 12,000 per child – $6,000 more that it would have received per child without special needs. Since the state designated all Indian children to be “special needs,” over a period of ten years this has added up to almost $1 million in such bonuses from the federal government going directly to South Dakota coffers.

I assume there has to be an error somewhere in these numbers, because the Representatives appear to be arguing that one million dollars over ten years (an average of one hundred thousand dollars per year) is the financial incentive that might be causing South Dakota to unnecessarily remove Native children.  That amounts to one tenth of one percent of the federal funds they indicate South Dakota receives.  The idea that South Dakota would be removing a huge number of Native children so that it could secure a hundred thousand dollars a year is just plain stupid.

If Congress wishes to really address this issue, it will stop massively funding back-end services like foster care and shift that money towards grants than can be used for front-end preventive and reunification services.  As I previously mentioned in my first post on this topic, the manner in which the federal government funds child welfare almost certainly acts to add to the number of children in foster care by making foster care the only available intervention even when better and less-costly services (which are not available because most federal money can only be used for foster care) could effectively keep many children safe at home.  While Congress is at it, it should consider fixing the regulations I discussed in this previous post that are preventing states from innovating to improve their child welfare systems.