Indian Child Welfare Act: South Dakota future uncertain

Published: May. 18, 2023 at 6:16 PM CDT
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SIOUX FALLS, S.D. (Dakota News Now) - On Native American reservations, children are the key to carrying on customs and ensuring the tribe’s future existence.

But a case under consideration by the US Supreme Court is raising concerns about the future of young tribal members.

Of the nine South Dakota tribes, each one is unique, but there is a common belief about the children, no matter which tribe you visit.

“There’s a philosophy in tribes that we have to think seven generations down the road,” said Gary Killsahundred, Flandreau Tribe Historian.

The Indian Child Welfare Act of 1978, referred to as ICWA, was established to stop the Native American way from being erased in the lives of foster children by placing children with extended family in their tribe or with a Native American foster family.

Beth Wright of the Native Americans Rights Fund filed on behalf of nearly 500 tribes across the nation to keep ICWA in place. Arguments against ICWA are now under consideration by the US Supreme Court, with a decision anticipated next month.

“Tribes are vibrant and strong, and their sovereignty is incredible. And so it’s important that people know that children are the most sacred to tribal nations,” Wright explained. “On the other side is bringing this collateral attack on tribal sovereignty by arguing that the designation of Indian is an appraisal of racial classification, not a political classification.”

Attorney Matthew McGill represents the non-Native foster families who have taken in a foster child and hope to adopt. He argued in favor of overturning ICWA.

“It favors all Indian persons over all non-Indian persons in foster and adoptive care, and I don’t think that can be described as anything other than a racial classification,” said McGill.

Stephanie Amiotte, legal director of ACLU Wyoming filed in support of the tribes. She believes changing even a portion of ICWA would have devastating results.

“It would be disastrous for 574 federally recognized Indian tribes that rely upon ICWA to keep Indian families together,” expressed Amiotte.

So how would this affect South Dakota Native American children and families?

“I think the effects will be pretty immediate, depending on how the court rules,” said Wright.

We asked the South Dakota Department of Social Services if they would still plan to return children to the tribes if the courts overturned ICWA. We also questioned if additional state foster homes would be needed should children remain in state custody rather than being transferred to the tribe. We wanted to know how many Native American children are currently in the state foster care program.

The response from the state was “no comment.”

Several South Dakota Laws from 2005 and 2006 enforce notification of tribes and certain provisions for parental inclusion in hearings.

During the last legislative session, South Dakota lawmakers reviewed SB 191, to establish the task force to address the welfare of Indian children. The bill did not pass. Others are taking another direction.

“Several states have already had state-based. It was codified into state law, and then a lot of other states are following suit,” said Wright.

Historian Gary Killsahundred knows what it is like to experience a complete disconnect from his tribe. Taken at the age of four to a boarding school, he made it back a decade later. He worries for children who may not feel like they have a place in either world.

“And the customs that you had, and the ceremonies that you had they’re gone now. How would you retrieve them?” asked Killsahundred.

Before the ICWA, government studies revealed up to 35 percent of all Native American children were taken from their homes and placed in foster care.

In 2021, fewer were in Foster Care, but still at a disproportionate rate.

Of South Dakota children, twelve percent are Native American, yet Native American children make up 41 percent of all children in foster care.