The Claim:  “Nearly $100 million in federal funding is being sent to South Dakota to administer foster care each year.” 

The claim above is taken verbatim from page 3 of the report submitted to Congress by the “Coalition of Sioux Tribes for Children and Families” titled “Reviewing the Facts: An Assessment of the Accuracy of NPR’s Native Foster Care: Lost Children, Shattered Families.”  Despite the really long and inclusive sounding name, this report was essentially written by the Lakota People’s Law Project, which then solicited support for it from ICWA directors and tribal governments.  It is notable that support was not unanimous among either group.  In my previous posts, I referred to this document as the “ICWA Directors Report.”  Almost exactly the same statement was made in the 2011 NPR reports by Laura Sullivan and Amy Walters, which claimed that South Dakota receives “almost $100 million a year to subsidize its foster care program.”  I have a strong suspicion that the Lakota People’s Law Project was the source used by these reporters for this $100 million number.  I also heard this same claim made repeatedly at the ICWA Summit that I attended a couple weeks ago.

The problem with this $100 million claim is that it is demonstrably and objectively false.  The Assessment done by the Lakota People’s Law Project sets forth the method for how their number was calculated, namely by including “$55 million for Children’s Services, $48 million to fund foster children’s health care, and $4 million for administration.”  I’m not convinced that the methodology to calculate the $4 million for administration is especially sound, but I don’t care too much about that number.  The other two numbers are worthy of more consideration.

The $55 million number for Children’s Services is derived from the 2012 Governor’s Budget, although I am not sure exactly which year’s numbers in that budget were used, as the “other funds” cited in that budget appear to also be federal dollars.  The problem with citing the entirety of federal funds received by the Division of Children’s Services is that Children’s Services does more than just child protection.  The State’s child support enforcement agency and its daycare licensing and subsidies are both also included in that division.  Child Support Enforcement, as would be expected, assists in the enforcement of child support orders.  Child Care Services licenses daycares in the State and provides daycare subsidies.  According to pages 24 and 25 of South Dakota’s 2010 Budget in Brief, the following federal funds were allocated to Children’s Services in state fiscal year 2010:

• Child Support Enforcement:  $4,534,873
• Child Protection Services:  $33,713,717
• Child Care Services:  $21,249,655

As is objectively demonstrated by the numbers, Child Protection Services, which is the division of DSS that investigates child abuse and oversees children in foster care, received a maximum of about $34 million in federal funding in recent years (that amount is currently closer to $31 million annually).  The $55 million number cited in the Assessment is therefore at least $21 million too high.

The other large number cited on page three of the Assessment was “$48 million to fund foster children’s health care.”  This “figure of $48 million was derived by calculating the percentage of total persons served by DSS that are foster children (10%) and then multiplying that by the total amount of federal money spent on medical care by DSS ($479 million).” (footnote 43 of the Assessment).  Essentially, this number is a rough estimate of the federal dollars (mostly Title XIX Medicaid funds) South Dakota gets to provide for the routine healthcare and counseling needs of children in foster care.  The first problem I have with this number is that I can’t figure out where the 10% figure came from, and I suspect it to be too high.  The bigger problem with this number is that it does not consider the fact that South Dakota would be receiving federal funds to provide healthcare for most of these children even if they were not in foster care.  According to the 2010 South Dakota Medicaid Overview, about one third of South Dakota’s children get their health coverage from the State through either the Medicaid or CHIP program, which combined will cover any child in a family living at less than 200% of the federal poverty guidelines.  As the vast majority of foster children come from low-income families, most of them are already covered by Medicaid or CHIP before they enter care.

I feel the need to stray slightly at this point from just analyzing the numbers to analyzing the context they are being used in.  The Assessment uses the $100 million dollar number to advance an argument that “South Dakota is removing children…for what appears to be profit.”  The essence of this argument is that the money coming into the state stimulates South Dakota’s economy and provides “a positive and measurable impact on state business activity, available jobs, and overall state income.”  The form of this argument completely ignores South Dakota politics.  In recent years, South Dakota has had to pay a match of approximately 33 cents per 66 cents of federal medicaid and Title IV-E funds received.  The amount of this match is based on the Federal Medical Assistance Percentage (FMAP), which is going to require South Dakota to pay a higher percentage in the very near future.  There is still significant discussion going on about whether South Dakota will even accept the Medicaid expansion provided for by the Affordable Care Act (Obamacare), which would be financed 90% by the federal government.  The expansion has thus far been opposed by Governor Daugaard.  The economics of that decision are straight-forward.  Accepting the Medicaid expansion would be worth vastly more money to the State and come at a much lower relative cost than taking children.  However, this argument has yet to carry the day.

Another argument that I heard at the Summit regarding Medicaid was that the Indian Health Service (IHS) pays for the care of Indian children before they are taken into foster care, so they only get on Medicaid after being taken into State custody.  There are two main problems with this argument.  The first is that it is factually false.  Indian children who qualify for Medicaid can be enrolled just like anyone else, and Medicaid pays the IHS for the care of eligible children at IHS facilities.  In fact, the IHS views Medicaid as a primary source to increase its funding.  The second problem with this argument is that, even if true, it wouldn’t make sense.  If Indian children’s healthcare was paid for using entirely federal funds, why would South Dakota want to move those children to a program that required matching funds from the State?

What federal money does South Dakota get for its child welfare system? 

As noted earlier in this post, it is fair to say that South Dakota gets somewhere in the neighborhood of $34 million to finance its child welfare system.  But, the 2010 state budget cited for that number doesn’t provide a breakdown of those federal funding resources.  The State Child Welfare Policy Database managed by Casey Family Programs provides the best breakdown of South Dakota’s child welfare spending that I have found.  This source indicates that South Dakota spent $32,173,323 in federal funds in State Fiscal Year (SFY) 2010.  Those funds broke down as follows:

• Title IV-E: 35%
• Title IV-B: 4%
• Medicaid: 35%
• TANF: 15%
• SSBG: 8%
• Other: 3%

The Medicaid funds accounted for here are used primarily to pay for residential placements.  The general healthcare expenses for children in foster care are not included in this amount.  SSBG stands for the Social Services Block Grant, which has few restrictions on use.  TANF stands for Temporary Assistance for Needy Families.  TANF funds are used in part to support kinship placements where the placement is not a licensed foster home.  Title IV-B funds are used for prevention services.  I am not sure what the “Other” category consists of.  Title IV-E funds are what most people are talking about when they describe the State getting money for taking children.  These funds are used for foster care maintenance payments ($3,503,056 in SFY 2010), administration, placement, and training ($3,158,044 in SFY 2010), and adoption subsidies ($3,764,361 in SFY 2010).  Title IV-E funds are received per eligible child, and not all children are eligible to receive IV-E funds.

What federal funds are available to tribes?

As Indian children qualify for Medicaid just like anyone else, I believe that Medicaid funds are available to pay for the residential treatment of such children who are under the jurisdiction of tribal rather than state systems.  I also know that Title IV-B funds are available to tribes, although the bureaucratic requirements attached to those funds make them less cost-effective for small governmental entities like tribes.  I do not think that TANF funds can be used by tribes in the same manner as by states, and tribes do not receive SSBG funds to the best of my knowledge.

Title IV-E funds seem to be at the heart of the current discussion.  The Fostering Connections to Success and Increasing Adoptions Act of 2008 changed the law so that tribes could receive Title IV-E funds directly from from the federal government.  As of the date of the Summit, only three tribes in the country had established such a direct-funding relationship, although more were working on it.  No tribes in South Dakota receive direct IV-E funding or are very close to doing so.  However, tribes can receive IV-E funding funneled through a state through state-tribal agreements.  In South Dakota, four tribes currently take advantage of this option.  They are the Sisseton-Wahpeton Oyate, Oglala Sioux Tribe, Standing Rock Sioux Tribe, and Flandreau Santee Sioux Tribe.  Foster care maintenance payments are definitely funneled to these tribes in this manner, and my understanding is that the State provides not only these federal dollars to the tribes, but also the required matching funds.  I have been told that administration, placement, and training funds are also available to tribes in this fashion, but I don’t know how often such expenses are claimed by tribes or paid by the State.  I strongly suspect that adoption subsidies are not used very often by tribes, as most tribal courts never terminate parental rights.

Is sending Title IV-E funding directly to the tribes the answer? 

A common theme of the Summit was that the federal government should send the money it sends to the State for foster care directly to the tribes instead so that they can run their own child welfare systems.  This proposed solution is a favorite of the Lakota People’s Law Project, which has used the slogan “Tribe is Family, State is Not! We Can Take It From Here!” on their literature.  The general sentiment of many advancing this argument seems to be that tribes will be best served by burning all their bridges with the State and using the seemingly ample federal funds to run their own systems.

The biggest problem with this is of course that the seemingly ample federal funds are not so ample.  South Dakota doesn’t get the $100 million that is casually tossed around, it gets closer to $32 million.  Many of the same funding sources, such as Medicaid, are already available to and being used by the tribes.  Others, such as the Social Services Block Grant, are not available to tribes at this time.  The biggest pot of money tribes can currently get their hands on directly is Title IV-E funds, which amounts to about $10.5 million of the State’s budget.  About a third of this is adoption subsidies, which are not likely to be useful to tribes, thereby cutting that pool of money down to about $7 million.  At least half of that is going to be for children, both Indian and non-Indian, who are in State custody, which cuts that pool down to about $3.5 million.  Three and a half million dollars divided among South Dakota’s nine tribes is woefully insufficient to fund quality child welfare systems.  The director of ONTRAC, the Oglala Sioux Tribe’s ICWA office (which is distinct from LOWO, their child welfare program) estimated at the summit that her office alone would need a budget of about $1.2 million to operate fully (their budget is currently about $350,000).  I would call the State’s child welfare system underfunded, and it is getting close to receiving almost half of its funding from State general funds.

The second problem with the “burn the bridges” mentality is that it does nothing for those Indian children who are going to remain in the State’s system.  Over half of the Native people in South Dakota do not live on reservations, and I would venture a guess (I don’t have any data) that most Indian children who come into the State child welfare system do not have parents who are both from the same tribe.  As such, many ICWA cases would not be transferred to tribal courts even if they had strong child welfare systems.

The third problem with the “burn the bridges” mentality is that cooperation is necessary in order to achieve the best outcomes for Indian children.  In situations where tribes have arranged to receive direct Title IV-E funding, cooperation with the State was often vital in doing so.  The Port Gamble S’Kallam Tribe was the first tribe in the nation to receive Title IV-E funding directly, and two of its members presented at the Summit.  I spoke to them after their presentation, and they indicated that they could not have created such an arrangement without the cooperation of the State of Washington, which still finances the required matching funds.

To actually answer the question I posed, no, sending Title IV-E funding directly to the tribes is not the answer.  It may, however, be a small part of the answer.  The prospect of such an arrangement should be looked into by tribes, but there should be no illusions that it is some sort of magic bullet that will provide tribes with ample resources or prompt changes to the State’s child welfare system.  Collaboration between all of the stakeholders will remain vital to making significant improvements in the lives of South Dakota’s Indian children.

• Where was the State?  One of the main stories to come out of the event was that the State of South Dakota did not send any representation to the summit.  The State has attempted to deflect criticism by saying that it was not invited until about a week before the summit and could not make it work.  While there may be a grain of truth to that excuse, I am not really buying it.  What I know is that people from the BIA, including Secretary Washburn himself, made contact with the State at the level of the Governor’s office and came away with the impression that the State was not interested in participating.  I also know that I learned about the planning of the Summit via a story in the Rapid City Journal in February, posted about it initially on February 15, and posted the correct date on April 4.  State officials say that they are interested in working with tribes to make improvements, and I think that the coming months will provide them with an opportunity to prove as such by their actions.  I personally would like to see the State commit to regular and ongoing meetings with the purpose of improving the child welfare system.

• Where were the tribal leaders?  The Summit was three days long.  The first day consisted almost entirely of stories and speeches by tribal leaders and members.  Every tribe had high-level leaders there for the first day.  The next two days were intended to focus on information and potential solutions.  But, the number of tribal leaders present continually declined as the event went on, to the point that some tribes did not have any elected leaders present by Friday afternoon.  One audience member frustratedly asked if anyone was still present from her tribe – no one was.  In the tribal leaders’ defense, there was also a meeting regarding the Keystone XL pipeline that a number of leaders attended, as well as possibly other events that I don’t know very much about.  For example, my understanding is that OST President Brewer was meeting with Governor Daugaard on Friday, but not regarding the topic of the Summit.

• According to Oglala Sioux Tribal President Brewer, the cameras of KOLC-TV were turned away at the start of the event.  Thankfully, they were allowed in shortly thereafter.  I believe the event was streamed live, although I don’t know that for sure.  I was also told by one of the workers for KOLC that the event would eventually be posted to their website.

• Completely tribal systems will still be criticized.  On the third day of the Summit, LOWO, the child welfare program operated by the Oglala Sioux Tribe, presented about their system, which is run entirely by tribal entities.  Several speakers criticized LOWO and the OST Courts for removing children and essentially acting like the State.  I also noted that representatives of LOWO and the ONTRAC program cited the exact same kinds of problems that I hear from State workers, namely that they lack the level of funding and resources needed to provide the level of services that they would like to provide.

• Towards the end of the Summit, I was “called out” so to speak by Phyllis Young, a rather vocal representative from Standing Rock.  There is a decent chance that I will post more on this later, but want to try to put the event in context at the moment, as a video of me during this exchange has already been posted to Youtube.  I had gone to talk to Jesse Taken Alive, who acted as the primary representative for Standing Rock during most of the Summit, earlier in the day, and Ms. Young happened to be in the area.  I had concerns that they may have been mislead by members of the Lakota People’s Law Project about just how much money the tribes might be able to get from the federal government.  They regularly say that South Dakota gets 100 million dollars to support foster care, but the Title IV-E funds that many tribes want to go directly to them only amount to about 11.5 million of the state budget (possibly plus or minus a few million at this point as I have 2010 data).  Ms. Young seemingly did not like that I pointed out this fact.  I also note that the description of the Youtube video suggests that I was “a spy in the room for the State of South Dakota.”  First, I’m not sure why one would have to spy on a public gathering of hundreds of people that was being streamed online.  Second, I’m self-employed, and lost money due to the three days I took off from work so I could attend the summit.  The description of the Youtube video also says that “He was outright rude to those he interacted with during his time here.”  I challenge the essentially anonymous video poster to tell me who.  The only people who I found I was not able to have a civil discourse with were Phyllis Young and Daniel Sheehan, who stormed off about a minute into my conversation with him.  I had multiple mutually respectful discussions with Ms. Young’s fellow council member Jesse Taken Alive, who found me in the crowd and shook my hand before leaving the Summit on Friday afternoon.  I also had cordial and sometimes lengthy conversations with several ICWA directors, several tribal leaders, Laura Sullivan, Representative Kevin Killer, Judge B.J. Jones, several of the presenters, several people who were there to tell their personal stories, and several other members of the Lakota People’s Law Project, including Randolfo Pozos and Dan Nelson.  Several Native individuals also made a point of approaching me following my interaction with Ms. Young.  They thanked me for being there and apologized for Ms. Young’s behavior, which was not representative of the respectful traditions of their culture.

• I came away from the Summit with a number of idea for improvements and things that should probably be looked into further.  For example:
  • A court-monitoring program, such as the one done by QUICWA in Hennepin County, Minnesota, could provide an impetus to improve court procedures.  It would probably be necessary to amend SDCL 26-7A-36, which calls for closed hearings, in order to make this work.  I have previously called for this statute to be amended.
  • I heard several stories of problems and delays for Native people who tried to become licensed foster care providers.  It may be worthwhile to examine our foster care licensing system with an eye towards being able to quickly license more Native homes.
  • Some tribal court judges working on reservations where DSS provides services feel that their hands were tied in some respects when it came to ordering a specific placement for a child under their jurisdiction.  It may be worthwhile to examine the relationship between DSS and the tribal courts in this context.
  • The family is traditionally strong in our South Dakota tribal cultures.  I heard a few times that if a child’s mother has three sisters, then the child has four mothers.  With this in mind, it may be worth exploring policy changes that would help children maintain connections to family members, even if they cannot go live with a family member.
  • There are improvements that I believe could be made to the child welfare system as a whole.  For example, appointing attorneys for the parents and the child as soon as possible rather than at the first hearing after a petition has been filed, which is often 30 to 60 days after a child has been removed.  Children and parents would also benefit from more frequent visitation than the one time per week that is typical in Rapid City.

***Correction:  My original post indicated that the Lakota People’s Law Project “regularly say[s] that South Dakota gets 100 million dollars for Indian children.”  For the sake of accuracy, I have amended this to read “South Dakota gets 100 million dollars to support foster care.”  These are obviously different claims that should not be conflated.  To the best of my knowledge, the stronger of these claims has never been made by the Lakota People’s Law Project, although I have heard it made by others.

• 2013.05.13 BIA Summit Agenda

According to this article, the summit will be broadcast on KOLC-TV, which is available on some South Dakota cable networks, and potentially streamed online.

• 2013.05.09 BIA Summit Agenda 

• Rapid City Journal Story of April 26, 2013
• PR Web Story of May 6, 2013 (paid publication by the Lakota People’s Law Project)
• April 23 Letter of Standing Rock Sioux Tribe to Congressman Markey

It appears that there may be last-minute changes to the agenda, but a copy of the current agenda was made available via the PR Web publication linked above.  I have converted it to PDF format, and linked it below.

• 2013 BIA Summit Agenda

The previously linked letter of the Standing Rock Sioux Tribe to Congressman Markey provides the most insight into what disputes appear to exist regarding the summit agenda.  Specifically, the letter requests about an hour and a half for parents to tell their individual stories, that former Senator and author of the Indian Child Welfare Act, James Abourezk, have a speaking spot, and that there be a segment regarding tribes obtaining funding directly from the federal government for their child welfare programs.  None of these three things seems like such a bad idea.  However, the remainder of the letter, which complains about a lack of investigation into claimed wrongs highlighted in the NPR reports, provides a good indication of why there does not appear to be any involvement in the summit by the State of South Dakota.  Here are a few quotes from the letter:

• “We respectfully reject the notion that somehow, after all the evidence compiled by NPR and by our own ICWA directors showing willful neglect by DSS of ICWA’s placement standards, that we ought to have to “recommend” changes to South Dakota’s foster care system in order to protect our children.”
• “In sum, we hope that the BIA can understand our exasperation with its assumption that we ought to plead with South Dakota to protect our children. Rather, we prefer to demand adherence by the state to ICWA in the short term, and to build our own, federally funded (in part) foster care programs in the medium-long term.”

What I take away from the letter is that the Tribes essentially want a public forum where they can further publicize the perceived wrongs that were supposedly highlighted by the NPR reports.  Given that the State denies (for good reason) most of the damning accusations of those reports, a forum involving the State would likely just devolve into a back-and-forth argument about the facts.  The State would be at a disadvantage in that argument because it cannot discuss any cases with particularity.  If the Tribes want to “demand adherence” by the State to laws it already claims to be complying with, and does not want to work with the State to recommend changes to the system, then it is not surprising that the State sees no benefit to participating in the forum.  Maybe some tribal representatives will learn some useful things that they can use to help them improve their own programs, but this summit is not likely to lead to any meaningful change in State practices.  This is especially ironic in light of the fact that alleged State practices are what led to the demand for the summit in the first place.  The real losers in this situation are Indian children, who are at the mercy of systems shaped by a bunch of adults who cannot get along well enough to work together.

As of yet, no one from NPR has seriously and publicly responded to complaints regarding the series.  As I first posted here, the Ombudsman at NPR, Edward Schumacher-Matos, wrote in December of 2011 that “a look back at an investigation of Native American foster care in South Dakota” was “coming soon.”  In September of 2012, I posted that the NPR Ombudsman was still investigating the Native Foster Care Series.  I had emailed the Ombudsman’s office and received the following response: “Yes, Edward Schumacher-Matos still plans to respond to the complaints filed about the South Dakota Native foster care series. Our office has been conducting an ongoing investigation and working with the governor’s office and the newsroom at NPR.”  In that same post, I noted that it had never previously taken the Ombudsman more than four and a half months to respond to a story.  On March 24, 2013, Cody Winchester with the Argus Leader reported that the paper has contacted Mr. Schumacher-Matos “multiple times” to try to find out when his report would be released, and that on March 8, 2013 the Ombudsman wrote in an email that “My report is close and will land when it lands.”  (I also highly recommend that Argus Leader article for a discussion of some of the factual inaccuracies in the series.)  I last emailed the Ombudsman’s office on April 1, 2013, but have not received a reply.

It has now been over 17 months since the Native Foster Care Series aired, without any corrections or statements being made by the Ombudsman or NPR.  In the meantime, reporter Laura Sullivan accepted a Peabody Award for the series.  At this point, I am not holding out much hope that Mr. Schumacher-Matos will actually do anything.  The Ombudsman’s report, if it is ever actually issued, ought to be one of the most well-researched pieces of journalism in history.  It is inexcusable to wait 17 months and counting to issue a meaningful response in this situation.

1. The AP report indicating that the summit would be April 15-17 was incorrect.  That was one of several prospective dates that had been discussed when trying to plan the event, but it was never finalized.
2. The summit has been scheduled for May 15-17 at the Ramkota hotel in Rapid City.
3. The exact agenda for the summit is still pending approval.  The summit will be open to members of the public.
4. It is unknown at this time whether the South Dakota Department of Social Services will participate.  They have been invited, but have been reluctant to commit to participating.

If I receive a public agenda for the event, I plan to post it.  I am also planning to try to attend at least part of the summit.  I also believe it would be a mistake for DSS to not participate in the event.  The State does not have any legitimate interest in secrecy.

I note that I did write to South Dakota’s congressional delegation to urge them to make a summit happen, as I indicated I was going to in this post.  I received replies from staff for both Senator Thune and Representative Noem.  I unfortunately did not hear anything back from Senator Johnson’s office.  I don’t know what if anything went on behind the scenes, but include this just to highlight that responding to constituents is a good thing.

On another note, the full ICWA Directors Report, the “Executive Summary” of which I previously evaluated, is now available on the website of the Lakota People’s Law Project.  The full title of the report is “Reviewing the Facts: An Assessment of the Accuracy of NPR’s Native Foster Care: Lost Children, Shattered Families.”  I have quickly read through the report once.  I disagree with a number of arguments and conclusions in the report, and believe some information was also presented in a misleading way.  Unfortunately, I do not believe that I will have sufficient time in the near future to offer a thoroughly detailed rebuttal.  I think a lot of my analysis in my previous post regarding the executive summary is valid and is contradictory to some conclusions reached in the report.  A few additional brief points are below:

• The Report essentially ignores the fact that a very large number of Native children in DSS custody are under the jurisdiction of tribal courts.  It is very disingenuous to say that the State is taking away Native children if those children are being placed with DSS by tribal courts, which would also have the power to remove those children from DSS custody.
• Pages 10 and 11 of the Report indicates that “DSS claims … the authority to remove tribal children even when tribes choose not to sign a contract for services.”  This gives the impression that DSS claims to be able to go onto reservations and take children.  DSS can’t remove children for very long without a court order, and doesn’t do so on reservations without the involvement of tribal authorities.  The email cited by the report for this claim of authority is essentially citing authority for the state to take tribal children into custody who are not residing on a reservation.
• On page 19 of the Report, the findings and implications of the J.S.B. decision are thoroughly misrepresented.  The full text of the J.S.B. case can be found here.
• A quote from Tribal Court Judge B.J. Jones indicates that the Yellow Robe children, who were at the center of the original NPR story, were under the jurisdiction of a TRIBAL court.  NPR did a whole story essentially alleging that the State of South Dakota stole the Yellow Robe children from their mother and kept them from their grandmother without any just cause when in fact the children were under the jurisdiction of a TRIBAL court the entire time.  At any time that tribal court could have ordered that the children be placed back with their family.  I’m still amazed that this truly pathetic piece of sensationalist journalism won a Peabody.
• The crux of the argument that the State of South Dakota is taking children for profit is that it gets some federal funds related to doing so.  For example the Report quotes Families USA for the proposition that “Because of their financing structures, SCHIP and Medicaid introduce new money into [South Dakota’s] economy, which has a positive and measurable impact on state business activity, available jobs, and overall state income.”  However, consider that all of these federal monies require that the State spend some additional money in order to get them, and spending money is not something that happens readily in South Dakota.  If South Dakota was really that motivated to get federal dollars into the state so as to improve the economy, I find it hard to believe that it would even consider turning down a Medicaid expansion worth billions when the federal government would be picking up 90% of the tab.

Despite my issues with the Report, I do think there are several issues it raises that are worthy of attention.  For example, should the standards for licensing foster homes be changed in some fashion so as to facilitate the licensing of more Native foster homes?  Also, in places where tribes have a contract with DSS to administer services, what control over the placement does the tribal court have once a child is placed with DSS, and are the ICWA placement preferences being followed in that situation?

I think there are also additional potentially fruitful topics that could be addressed if there was better dialogue.  Unfortunately, misleading reports alleging grand conspiracies to steal children for profit deflect attention from these potentially useful topics of discussion and serve to polarize the parties whose cooperation is necessary to make any changes.

Very briefly, here’s my understanding of the facts of this situation.  It was discovered that Richard Mette, the adoptive father of several Native American children, had been sexually abusing at least one of the children.  He eventually pled guilty to raping one of the children as part of a plea bargain.  Taliaferro was serving in the state attorney’s office and was involved in prosecuting the case, and Schwab was a CASA worker for the children.  Richard Mette’s wife Gwendolyn Mette was also criminally charged based at least in part on an allegation by the children that she knew about the abuse.  Those charges were later dismissed.  The essence of the allegations against Taliaferro and Schwab is that they tried to get the children to lie about Gwendolyn Mette having known about the abuse and/or tried to get the children’s therapist to get them to lie about her having known about the abuse.

I note that, if true, these are serious allegations.  Fabrication of evidence by a prosecutor can easily lead to miscarriages of justice and the ruination of lives.  However, it appears that the evidence against these two was very questionable.  It appears to me that the judge granted a “judgment of acquittal” following the prosecution’s case.  The legal question asked when doing so is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  If I am interpreting this news correctly, the judge did not believe that the prosecution presented sufficient evidence for a rational juror to determine beyond a reasonable doubt that the defendants committed any of the crimes they were accused of.  I will be curious to see further reporting on what evidence was presented at trial.

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.