Plight of Native Americans in Foster Care System Worse Than Most

As bad as child protective agencies can be, they’re even worse toward native American families, particularly in South Dakota. This fine article tells why (NPR, 10/25/11).
As bad as child protective agencies can be, they’re even worse toward native American families, particularly in South Dakota.  This fine article tells why (NPR, 10/25/11).

Much of what the article says is familiar.  It’s the usual litany of complaints against child welfare agencies that can be found in any article on the subject.  Children taken from families for no apparent reason, a child welfare bureaucracy that seems indifferent to the concerns of parents and children, a high turnover of untrained caseworkers and a preference for keeping children in foster care once they’re taken from their families – it’s all there.

The article tells of one mother, Erin Yellow Robe, who had four children.  Apparently in response to a complaint by a neighbor with a history of antipathy for the mom, the state Department of Social Services came and got her two twins, the youngest of the four.  The caseworker told the children’s grandmother that Yellow Robe was going to be arrested for misuse of prescription drugs.

But she never was.  To date, there’ve been no charges, no arrest, no prosecution, nothing.  But that didn’t stop the DSS from later taking her two older girls as well. 

As I said, that’s pretty much the standard for child protection agencies.

But in a state like South Dakota, that has a large native American population, there’s something extra.  Due to this country’s regrettable history of trying to graft western European ways onto native Americans, the federal government passed a law in 1978 requiring state child welfare agencies to place native children with native families except in rare cases.

Given the track record of many child welfare agencies, few would be surprised to learn that South Dakota and 31 other states essentially ignore that law.  In South Dakota, only 15% of people are native Americans, but 50% of the children taken by DSS are tribal people.  Worse, only 13% of the native children taken into care actually end up where federal law requires them to be – in native American families.

DSS claims it complies with the law when it can, but says there aren’t enough native foster homes for all the native children.  But NPR found two foster homes on a single tiny (1,400 people) reservation that had never been contacted by DSS about taking native children or indeed children of any kind.

And that’s not all.  As most people who read this blog know, the federal government provides a powerful incentive to states to take children into foster care.  For each child taken, the state receives thousands of dollars of federal largess.  DSS claims that it doesn’t actually make money off the deal because it’s required to match what Washington pays.

Except it’s not exactly a match. According to state records, last year, the federal government reimbursed the state for almost three quarters of the money it spent on foster care.

So the truth is that the state gets three dollars for every dollar it spends.  Not a bad deal for a poor state with few resources of its own.

Bill Napoli chaired the state Senate Appropriations Committee until he retired three years ago. He says he remembers when the state first saw the large amounts of money the federal government was sending the Department of Social Services in the late 1990s.

“When that money came down the pike, it was huge,” Napoli says. “That’s when we saw a real influx of kids being taken out of families.”

He said there was little lawmakers could do to rein in the department. This was federal money, and it went straight to social services.

“I’m sure they were trying to answer a public perception of a problem,” he said. “And then slowly it grew to a point where they had so much power that no one — no one — could question what they were doing. Is that a recipe for a bureaucracy that’s totally out of control? I would say so.”

But again, when it comes to native Americans, it gets worse, not better.  In all cases, there’s federal money to encourage states to make foster care permanent via adoption.  Every time that happens, the federal government sends the state $4,000.  But if the adopted child is a “special needs” child, the amount jumps to $12,000. 

Now here’s a test.  Guess how every single native American child is designated by the State of South Dakota?  That’s right, every one of them is a “special needs” child, increasing the likelihood that, once taken into care, he/she will be taken permanently, and thereby increase the flow of federal dollars.

But even now as the money filters in, the federal government asks few questions about whether states are complying with the Indian Child Welfare Act.  A 2005 government audit found at least 32 states are failing in one way or another to abide by it.

On top of all this, there’s yet another minor matter that states like South Dakota don’t attend to.  They have no jurisdiction of children on native American reservations.  Those areas are quasi-sovereign, another nod to our disgraceful history of abuse of native American peoples.  That means that in most cases, reservations are to be governed by tribal councils.  In areas not governed by tribal law, U.S. law governs, but state law does not.

Now, some tribes have entered into agreements with state governments permitting state control over certain activities.  But when there’s no such agreement, state child welfare agencies often assume they have power even though they don’t.

At her wits end after her four children had stayed in foster care for over 18 months, Erin Yellow Robe and her mother went to the tribal council that did something it had never done before.

They passed a resolution warning the state that if it did not return the Yellow Robe Children, it would be charged with kidnapping and prosecuted.

That’s one of those things a sovereign can do – press criminal charges against wrongdoers. 

Nobody thought it would work.

But a few weeks later, a car pulled up outside of Howe’s house with Antoinette, Rashauna and the two twins, who were now 2 1/2 years old.

“Antoinette came in and said ‘Grandma, Grandma. We get to stay! We get to stay!'” , [their grandmother] said.

Kidnapping.  It’s funny, but now that I think of it, that’s the very word used in the Canadian video I wrote about to describe the behavior of Ontario CAS.

Thanks to Paul for the heads-up.

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