South Dakota needs specific child welfare laws for Native Americans, officials say

Jun. 27—Thirteen states have adopted their own versions of the federal Indian Child Welfare Act. If ever there was a time for a South Dakota Indian child welfare act, it's now.

That was the common sentiment at the South Dakota State-Tribal Relations Committee meeting on Monday, June 26, at Agency Village. Committee members met to discuss the implications of the Supreme Court's decision to uphold the federal Indian Child Welfare Act, and what that decision would mean for South Dakota Native children and tribes.

B.J. Jones, executive director of University of North Dakota's Tribal Judicial Institute and a tribal court judge of more than 20 years, was a guest at the meeting. He said SCOTUS' upholding of the act was a "great relief" to tribes and states alike.

Jones referred to a ProPublica story of a

South Dakota Native woman losing custody of her child due to stipulations in the Adoption and Safe Families Act

, which establishes strict guidelines for adoption of a child to reduce the time they spend in state foster care.

The Indian Child Welfare Act (ICWA) was established in 1978 to halt the removal of Native children from their families to non-native foster or adoptive parents. The state of Texas and six non-Native parents of adopted and fostered Native children challenged the act in court on grounds that the act was racially biased against non-Native Americans. The case, Haaland v. Brackeen, was granted certiorari to the U.S. Supreme Court in February of 2022.

Jones said it is unclear which act, ICWA or ASFA, applies to South Dakota Native families at which time, and that the conflict of these two laws has caused confusion among Native families. He said state legislation could help iron that out.

In 2013,

more than 250 people traveled from reservations across the Midwest to the Great Plains Indian Child Welfare Act Summit in Rapid City

to testify about violations to the Indian Child Welfare Act they alleged their home states committed. Parents described losing their children and the challenges they faced in regaining custody once their children were placed in foster care.

In 2005, when Jones was appointed co-chair on the South Dakota ICWA Commission, he and fellow co-chair Seventh Judicial Circuit Judge Janine Kern considered enacting a state version of ICWA.

"We didn't actually make that a recommendation, because there were not many states that had enacted their own ICWA laws," Jones said.

Since then, however, several states have enacted their own ICWAs, including Montana, Iowa, North Dakota and Wyoming, and Jones said now is a good time for South Dakota lawmakers to consider following in the footsteps of these other states by adopting a South Dakota-specific ICWA.

One way to do that is by using some of those statutes as examples for developing their own version of ICWA, Jones said.

On Thursday, June 22, in a 7-2 decision, SCOTUS struck down the lower court's ruling that ICWA violated equal protection, thereby upholding the Indian Child Welfare Act.

Committee member Senator Mike Rohl asked if there were any states that had added ICWA adjacent protections that had worked especially well. Jones pointed to Minnesota's Indian Family Preservation Act, which clarifies and defines language used in the ICWA, such as "qualified expert witness" or "licensing," which Jones said helps Department of Social Services work with tribes to better connect Native children to qualified Native foster homes and family members.

Currently, there is a lack of clarification from the state whether it will honor tribal licensing of foster homes, Jones said. A statute could help iron out the unclear language of the act, he said, and help state child protective services and tribes work together to find appropriate homes for Native children in foster care.

"That's critical for tribes to get their licenses recognized because that's the only way foster care and adoptive assistance moneys can flow to those families," Jones said.

Debra "Mickey" Devine, director of the Child Protection Program at the Sisseton-Wahpaton Oyate, held a copy of the Supreme Court ruling on Haaland in her hand as she stood to speak at the meeting.

"If you read this entire brief, it leaves it [ICWA] open for more challenges," Devine said.

Devine said lawmakers should not expect the federal upholding of ICWA to automatically protect South Dakota Native children from being removed from their families.

"The challenges to our sovereignty are still coming," Devine said.

Several South Dakota House bills that would have echoed the provisions of ICWA

were shot down early this year

. Despite this, Devine said SWO's Child Protection Program is pushing for a South Dakota ICWA, as well as incentives for increasing the number of Native foster homes in the state.

The State-Tribal Relations Committee agenda also included a discussion on Tribal Healthcare Initiatives, but the Monday meeting was adjourned before they could discuss that line item.