Summit Being Scheduled and ICWA Directors Report Released

A summit is finally being scheduled regarding Indian foster care.  I previously wrote about how the BIA had indicated that it would hold such a summit, but had not followed through.  Unfortunately, the only information I have found on the summit has been a single Associated Press article, published in various sources on February 7th and 8th, which can be found here.  The summit is supposedly being scheduled for April 15-17, 2013 in Rapid City.  More details are apparently not available as of yet.  Interestingly, the article indicates that, “Kristin Kellar, spokeswoman for the South Dakota Department of Social Services, said the agency had not yet heard about the ICWA summit and have not yet determined whether the agency will participate.”  I have to question the competence of the BIA when one of the most important parties to the summit hears about it first from a reporter.  The seeming incompetence of the BIA makes me both disgusted and sad.

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.