South Dakota Responds to NPR Report on Native American Foster Care Practices

NPR's investigative report of South Dakota's foster care system has provoked lots of discussion of how we treat Native American children and parents. Right wing-nut Ed Randazzo says his greatest area of concern is the potential conflict of interest, with state government issuing no-bid contracts to well-connected foster care providers. Randazzo, of course, is wrong. Journalist Denise Ross agrees with me that the political angle of the story is an unfortunate distraction from focusing on whether we are doing the best we can for Native American kids.

Yesterday I posted a column on South Dakota Magazine laying out the three most important questions we need to answer about the disproportionate number of Native American children we have taken into our markedly privatized foster care system:

1. Why aren't those Native children with their families?
2. Can we put those Native families back together?
3. How do we keep more Native families from falling apart?

Many people are seeking answers to those questions:

1. SDPB's Paul Guggenheimer has interviewed former Senator and Indian Child Welfare Act author Jim Abourezk, state tribal relations secretary J.R. LaPlante, Department of Social Services officials.
2. The ACLU of South Dakota is investigating South Dakota's apparent non-compliance with the ICWA. Congressmen Edward J. Markey and Dan Boren want the Bureau of Indian Affairs to investigate.
3. Reporter Bob Mercer is in rebuttal mode. He argues that the NPR report ignores numerous facts about foster care and life in South Dakota. Mercer also points to three examples of the tribes not exercising their ICWA rights to send representatives to court hearings to challenge non-Native placement of Native foster children, implying that if we are placing Native children inappropriately, it's the tribal government's fault for not acting to stop us.
4. Dr. David Newquist rejects such defenses: he sees South Dakota's foster care practices as a continuation of a long, ugly history of white America profiting from the delegitimization and destruction of Native culture.

And then there is the response from Governor Dennis Daugaard. The governor's office defended itself on the political angle first, before the NPR story aired. But now the governor's people are getting to the heart of the story. In two documents prepared by the Department of Social Services, the state of South Dakota makes these main rebuttals to what it calls a "deeply flawed... inaccurate and incomplete" NPR report (I quote from the press release):

Children are removed from the home for their own protection, and the State of South Dakota expends millions of dollars each year to protect these children.

• The NPR report bizarrely stated that the State somehow profits from removing a child from the home. That suggestion would be laughable if the topic was not so serious. As veteran reporter Bob Mercer wrote, "what the reporting by Laura Sullivan shows repeatedly is a lack of understanding about government operations."
• Although the federal government provides foster care funding to the Department of Social Services (DSS), these federal funds have to be matched by state dollars. That means that every child imposes an additional cost on the state and requires state dollars that could otherwise be used for some other purpose.
• The total annual budget for Child Protection Services (CPS) is $59 million. Of that amount, the state receives $30.9 million in federal dollars, but it also expends $26.9 million in state dollars.

Children are only removed from the home in extreme circumstances, and Child Protection Services staff cannot act without cooperation from the courts and law enforcement

• Anyone can file a complaint with CPS, and over 16,000 complaints were filed in Fiscal Year 2011. After screening, about 25 percent of these are deemed sufficiently credible to investigate further, and fewer than 20 percent of children in investigated cases are removed from the home.
• CPS cannot remove children from a home without a court order. In an emergency situation, only law enforcement can remove the children. In no case can CPS remove children without involvement from the courts or law enforcement.
• Once a child is taken into protective custody, the first preference is to place a child with a family member, because it is better for the child. In most cases, placement with a family member is also less expensive than other options.
• There is court oversight for all children removed from their homes due to abuse or neglect, including oversight of an ongoing placement. Hearings must be held within 48 hours in state court. Hearings on removals of children on reservations are held according tribal code.
• In cases where the protected child is Native American, and living on a reservation, it is tribal law enforcement and tribal courts that are involved.

One of SD's nine tribes runs its own foster care, and three of the nine run full child protection services as well as their own foster care.

• DSS only provides these services to tribes that choose not to do so themselves.

• The Flandreau Santee Sioux Tribe provides foster care services only.
• Three tribes provide both child protection services and foster care:

• Standing Rock Sioux Tribe
• Sisseton Wahpeton Oyate
• Oglala Lakota Sioux Tribe
• DSS regularly invites those tribes that do not administer these services to consider taking them over &ndash most recently in a letter sent in February 2010.
• If a tribe chooses to provide these services, the state and federal dollars that would otherwise be used by CPS to provide these services are instead forwarded to the tribe for that purpose.
• Juanita Sherick, who is quoted in the NPR story saying that "They [DSS] make a living off our children," lives and works on the Pine Ridge Reservation, where the Oglala Lakota Sioux Tribe administers its own child protection and foster care services. DSS would only be involved in those cases in state court where the tribe has declined the opportunity to transfer the case back to tribal court.

Here are the two documents from the governor's office. First, the follow-up to specific points of the NPR report:

Among the responses in this first document is the interesting charge that NPR reporters Laura Sullivan and Amy Walters themselves or their unnamed sources may have violated the law by reviewing confidential foster care case records.

Second, a November 2011 (i.e., done yesterday!) update on the state's progress in acting on 30 recommendations from the 2004 South Dakota Indiand Child Welfare Act Commission on improving our compliance with the Indian Child Welfare Act:

The latter document notes that only four of South Dakota's nine tribes have stepped forward to contract with the state to run their own foster care programs, which allow those tribes to access federal Title IV-E funds for foster care. That document cites another example of lack of participation by tribes in addressing their children's foster care needs:

Most recently, DSS sent a letter of invitation to ICWA Directors and tribal representatives in 2010 to attend a meeting in March, 2010. The purpose of the meeting was to discuss contracting/agreements; enhancing the transfer protocol process and continued efforts with identifying and recruiting placement resources. Five out of the nine tribes had representation at the meeting, including Rosebud Sioux Tribe, Standing Rock Sioux Tribe, Yankton Sioux Tribe, Oglala Sioux Tribe and Sisseton-Wahpeton Oyate.

Note that the Crow Creek tribe, which figures prominently in the NPR report, is not among those participants. But note also that tribes can make a strong argument that when you've been beaten and tricked and oppressed for centuries, making the drive to Pierre for another chat with the white man who says that "No, really, I'm here to help this time" may not arouse much enthusiasm.

Providing all South Dakota children with appropriate care and justice is too big an issue for one news report, a rebuttal from the governor, or a mess of blog posts to solve. The governor's office is welcome to "set the record straight" where it needs straightening. At the same time, we should welcome further investigation from other journalists, organizations like the ACLU, and Congress and the BIA to make sure we are doing right by our Native American children.