Incentives And Cultural Bias Fuel Foster System
Part one of a three-part investigation.
The dirt roads on the Crow Creek Indian reservation in South Dakota blow dust on the window frames of simple houses.
Key Findings Of This Investigation
* Each year, South Dakota removes an average of 700 Native American children from their homes. Indian children are less than 15 percent of state's the child population, but make up more than half the children in foster care.
* Despite the Indian Child Welfare Act, which says Native American children must be placed with their family members, relatives, their tribes or other Native Americans, native children are more than twice as likely to be sent to foster care as children of other races, even in similar circumstances.
* Nearly 90 percent of Native American children sent to foster care in South Dakota are placed in non-native homes or group care.
* Less than 12 percent of Native American children in South Dakota foster care had been physically or sexually abused in their homes, below the national average. The state says parents have "neglected" their children, a subjective term. But tribe leaders tell NPR what social workers call neglect is often poverty; and sometimes native tradition.
* A close review of South Dakota's budget shows that they receive almost $100 million a year to subsidize its foster care program.
The people who live here are poor — in a way few Americans are poor. There are no grocery stores or restaurants. There's only electricity when it's possible to pay the bill.
This is where Janice Howe grew up, on a barren stretch of land that has belonged to the Lakota people for more than 100 years.
"I'm the eldest of nine kids," she explains, settling into a chair in the kitchen. "I went to college and I got my bachelor's degree in nursing."
Her sister lives across the street. Her parents live across the road. Her daughter lives two doors down with her four grandchildren — two young granddaughters and two twin babies.
And then one evening two years ago, Howe's phone rang.
It was a social worker from the Department of Social Services. She said her daughter Erin Yellow Robe was going to be arrested for drugs.
Howe couldn't believe it. She had never seen any sign of drugs or any other problems.
And then the social worker changed Howe's life. She said she was coming to take Howe's grandchildren away.
The next morning, a car pulled up outside Yellow Robe's house. Howe's daughter wouldn't let go of her one-year-old twin babies. She kept saying she hadn't done anything wrong.
The social worker buckled the babies into car seats.
"They were sitting in the cars," Howe says, choking up. "They were just looking at me. Because you know most babies don't cry if they're raised in a secure environment. So I went out there and took their diaper bags. And they left."
But as Howe watched the car pull around the bend, she realized the social worker took the two babies, but allowed Howe to keep her two granddaughters, 5-year-old Rashauna and 6-year-old Antoinette.
"I thought that was weird," Howe says. "I just thought, why can't I keep them all?"
A Mandate To Keep Children Connected
Janice Howe's grandchild Derrin Yellow Robe, 3, stands in his great-grandparents' back yard on the Crow Creek Reservation in South Dakota. Along with his twin sister and two older sisters, he was taken off the reservation by South Dakota's Department of Social Services in July of 2009.
Howe, other relatives and other members of the tribe all wanted the children. And federal law says they should have gotten them. The Indian Child Welfare Act mandates that, except in the rarest circumstances, Indian children must be placed with relatives, a tribal member or at the very least, another Native American. It also says the state must make every effort to first keep a family together with services and programs.
The law was passed in 1978 in response to a century-long practice of forcing Native American children into harsh and often abusive boarding schools where they lost contact with their culture, traditions, language and families.
Except now a generation of children is once again losing its connection to its culture. This time it's through state-run foster care.
In South Dakota, Native American children make up only 15 percent of the child population, yet they make up more than half the children in foster care. An NPR News investigation has found that the state is removing 700 native children every year, sometimes in questionable circumstances. According to a review of state records, it is also largely failing to place native children with their relatives or tribes.
According to state records, almost 90 percent of the kids in family foster care are in non-native homes or group care.
State officials say they're doing everything they can to keep native families together. Poverty, crime and alcoholism are all real problems on South Dakota's reservations and in the state's poorest areas. But, state records show there's another powerful force at work — money. The federal government sends the state thousands of dollars for every child it takes.
Howe's twin grandbabies were taken to a white foster home about 100 miles away.
On the day they were taken, Howe says she and her daughter sat on the steps and cried as they waited for the police to come to take her daughter to jail.
Several hours went by and no one came. A week went by, a month, and then summer turned into fall, and still no one came.
To this day, Howe's daughter has never been arrested for drugs — or anything else. Department of Social Service officials told NPR they can't talk about individual cases or confirm the details of Howe's account.
But one source who has reviewed the department's file said the social worker believed Yellow Robe was abusing her prescription pills. But the same source also says the file notes the case was based on a rumor — from a woman who, the source says, didn't like the Howe family.
And yet not only did they take the two babies, two months later, Howe waited at the school bus stop. But when the bus came, the girls weren't on it. A social worker had taken them from school.
Peter Lengkeek is one of 14 members of the Crow Creek Tribal Council. He said he is enraged by the number of children that the Department of Social Services has removed from his reservation. The Tribal Council recently passed a resolution saying that the state cannot remove children without the council's approval.
"They didn't even call and tell me. Nothing," Howe says.
The social worker in this case, like many the department employs, hadn't been on the job long and quit a short time later. She told Howe that the older girls had had too much contact with their mother - a woman who had never been charged with anything. And then Antoinette and Rashauna, they too were gone.
"It enrages me," says Crow Creek tribal council member Peter Lengkeek. "We're very tight-knit families and cousins are disappearing. Family members are disappearing."
The Crow Creek tribe has lost more than 33 children in recent years. The reservation only has 1,400 people. Last year Lengkeek asked social service officials to tell him where the children were and who they were placed with.
Seven months later, he received a list. Lengkeek says every single child was placed in a white foster home.
He says if the state had its way, "we'd still be playing cowboys and Indians. I couldn't imagine what they tell these kids about where they come from and who they are."
"It's kidnapping," he says. "That's how we see it."
Navigating State Policies
Congress enacted the Indian Child Welfare Act in 1978, recognizing that the future of Native American cultures hinged on tribes retaining their children. It requires state agencies to exhaust every possible means of keeping Native American foster children within their own tribes.
1969 and 1974: Surveys by the Association on American Indian Affairs report 25 to 35 percent of all Native American children are being separated from their families and placed in foster homes, adoptive homes or institutions.
Jan. 2, 1975: Congress establishes American Indian Policy Review Commission, which is charged with reviewing U.S. Indian policy. In 1977, the commission issues a report with more than 200 recommendations. (Vol. 1 and Vol. 2)
April 1, 1977: Sen. James Abourezk (D-SD) introduces Senate Bill 1214, the Indian Child Welfare Act. After passing in the Senate, the House passes its version of the bill, H.R. 12533, on October 14, 1978.
Nov. 8, 1978: President Jimmy Carter signs the Indian Child Welfare Act (ICWA) into law. It establishes federal standards for removing Native American children from their families and outlines proper procedure in regards to Native American children in foster care.
April 9, 1980: After a number of challenges to the new law, the Supreme Court of South Dakota determines ICWA is constitutional, saying interference in custody matters of tribal members threatens a tribe's right to self-governance.
April 18, 1988: The Bureau of Indian Affairs and the Administration for Children, Youth and Families issues a report to assess ICWA implementation. It finds that ICWA has failed to reduce the flow of Native American children into substitute care. The report also finds the lack of funding fosters a negative climate of competition among tribes.
April 3, 1989: In Mississippi Band of Choctaw Indians v. Holyfield, the U.S. Supreme Court reaffirms the idea of tribal jurisdiction.
April 4, 1990: The Supreme Court of South Dakota finds a state court may deny transferring a child custody case involving Native American children to a tribal court if there is "good cause" to deny the transfer.
March 3, 2004: South Dakota passes Senate Bill 211, which establishes a commission is charged with examining South Dakota's compliance with the ICWA.
Dec. 30, 2004: The Governor's Commission on the Indian Child Welfare Act releases a report (pdf) that cites an overall lack of funding. They find tribal courts do not have the funds to assume jurisdiction in a case that would provide foster care and other services for children. They also find the Department of Social Services is not always following ICWA procedure when dealing with a Native American child. The report recommends passing a state ICWA bill to enhance compliance.
November, 2005: A second report (pdf) by the South Dakota Governor's ICWA Commission outlines how to implement the 30 recommendations cited in its initial report. The report emphasizes the state's need for more funding and establishes the "Collaborative Circle," a formal group which increases dialogue and partnership between Native American tribes and the Department of Social Services.
Sept. 27, 2011: The Child and Family Services Improvement and Innovation Act passes both houses of Congress and is presented to President Obama. The legislation ensures that states successful in reducing their foster care caseloads do not lose federal funding. This legislation aims to create an incentive for states like South Dakota to reduce the number of children in foster care.
Compiled by Quinn Ford / NPR
Virgena Wieseler, who runs a division of South Dakota's department of social services, says the department believes in the Indian Child Welfare Act and does its best to find relatives or tribal member placements for Indian children.
"We come from a stance of safety," she says. "That's our overarching goal with all children. If they can be returned to their parent or returned to a relative and be safe and that safety can be managed then that's our goal."
Department Secretary Kim Malsam-Rysdon says they're dealing with abject poverty and substance abuse and have to do what's best for the kids, which sometimes means driving onto a reservation and taking a child.
"Of course we think it's legal or we wouldn't be doing it," she says.
Malsam-Rysdon cited two laws. One is a federal statute that only pertains to emergency situations. The other is a state law that allows the state to remove children in danger.
But two South Dakota judges, two lawyers and a dozen tribal advocates told NPR that state law doesn't apply. Federal law says tribes are sovereign. The experts say a state official can't drive off with an Indian child from Crow Creek any more than a Crow Creek official could drive off with a child from Rapid City.
Some tribes have agreements with the state, which allows social services to operate on their reservations. Crow Creek, however, does not.
But the state has never been challenged in court on this specific issue, so Howe was stuck in a strange — but common — legal limbo.
Because she lives on a reservation, state courts don't apply to her. But especially on poor reservations like hers, tribal courts can be over-run, underfunded and operated only part time.
Howe didn't know how to get a hearing. She didn't know any judges or lawyers. She certainly couldn't afford one.
And social services told her they couldn't tell her anything. Letters to the state and governor went unanswered.
But even here in a place with few resources or computers, she thought there must be something she could do. And then she thought of one more person to call: a man named Dave Valandra.
Valandra's the tribe's Indian Child Welfare Act director. He's a federal employee, who is charged with making sure the law is being followed, namely that children removed by the state are placed with relatives or tribal members.
But when she called him, Howe says he told her: "'There's nothing I can do.' - that's what he said to me" she says.
Dave Valandra works in a square, gray building for the federal Bureau of Indian Affairs. Valandra's official job is to help members who live off the reservation with their cases in state court. Many can't afford South Dakota's public defenders.
But Valandra can also help tribal members who are on the reservation. He can push for a tribal court hearing.
He doesn't do that very often, however, because he says he trusts the state to do what's best for native families.
"I get along real good with the state and I have a good rapport with them," he says. "I'm satisfied."
Tribal officials say they are not satisfied. They say he won't show up at their council meetings to answer their questions. Valandra says he doesn't need to appear because the Indian Child Welfare Act is being followed.
"The state does have Native American foster homes, so under the [Indian Child Welfare Act], they are following the law by placing the child in a Native American environment," he says. "So yeah, it's working."
But state records show only 13 percent of native kids in foster care are placed in native homes. In fact, Valandra admits that not one of the children in his almost three dozen cases is placed with a Native American family.
Asked if he's concerned these children may have been let down a bit, he seemed at a loss for words.
"Of my cases right now, I think they're all...right now, the placement of the children right now are...boy that's, huh," he said.
Tribal Foster Homes Remain Empty
Marcella Dion lives on the Crow Creek reservation and has been licensed as a foster care provider since 2005, but the state has never sent her any children. Recently she took in her brother's granddaughter, Isabella.
With Valandra a dead end, Janice Howe asked the social worker to move the children to a native home where they could participate in cultural activities such as going to sweats and sundance. But nothing changed.
Social Service's Wieseler said they would like all native children to be in native homes. But she says they've only got a few and they don't have room.
"We are constantly recruiting," she says, "constantly recruiting in all of our offices for all kinds of foster families and we are always trying to recruit them because we need more."
That comes as a surprise to Marcella Dion. She's a native foster home provider on the Crow Creek reservation and has lots of room.
Her home's been empty for six years.
"I was like, 'Whoa, what's going on,'" she says. "I got my [Indian Child Welfare license]. No kids."
Then there's Suzanne Crow, also from Crow Creek.
"I've been a foster parent here for over a year," she said. "They've never called me for any Indian kids."
In that year, hundreds of native children in South Dakota were placed in white foster homes. Officials on the Pine Ridge reservation, several hours away, also say they have 20 empty homes.
More From This Investigation
A few months ago, Crow asked a social worker why she hadn't received any native foster children.
"He said well there's a long process this and that," Crow remembers. "And I said, 'You know what? The long process is there's no road from you to Indian people. That's the long process.'"
Howe and her daughter waited months just to see the kids. She missed braiding their long hair. They follow Lakota tradition that you don't cut hair unless there's a death in the family.
When they were finally granted a visit in December 2009, Howe says she burst into tears. Their hair was cut to their shoulders.
The girls also looked thin and had holes in their socks, Howe says. They begged Howe and their mother to take them home.
She recalls Rashauna telling her that she knew how to get to the river and said she was going to try to swim home.
"I just kept saying, pray," Howe says she told the children, tearing up at the memory. "Pray hard. Grandma's going to get you back. I don't know how but grandma's going to get you back. When you start feeling bad pray or look outside because we're both looking at the same sky. Ok? Ok, they said. And they left."
She wouldn't see them again for another year.
An Increasing Case Load
In downtown Rapid City, Danny Sheehan was digging around in a closet down the hall from his office pulling open file cabinets and taking out files.
"These are all the different people who had their kids taken away from their entire families," explains Sheehan, who works for the Lakota People's law office. "Not one of them has had their children left with a relative of any kind."
There are about 150 case files in all.
He hopes one day he can sue. He's been involved in cases like this in the past, including fighting Three Mile Island, the Ku Klux Klan - even representing a group that wants access to UFO records. But he says these cases are expensive, time consuming and fraught with legal hurdles.
"Maybe if we devoted all our resources to a particular case and said, look, we're going to land on you like a ton of bricks [social services] and make you give this one kid back and sue you and do everything else, they would probably just turn the kid loose," he says. "But it wouldn't change anything. It wouldn't stop them from doing it a hundred times again."
There are children in South Dakota who need to be removed from their families. But according to state figures, less than 12 percent of the children in foster care in South Dakota have been actually physically or sexually abused in their homes. That's less than the national average.
And yet South Dakota is removing children at almost three times the rate of other states, according to data from the National Coalition for Child Protection Reform.
Culture, Poverty or Neglect?
There's one word that makes it possible for the state to remove Janice Howe's grandchildren and more than 700 other native kids every year: Neglect. The state says parents have neglected their children.
The problem, says Bob Walters, a council representative from the Cheyenne River Sioux Tribe, is that neglect is subjective.
Walters, along with officials from seven other South Dakota tribes NPR interviewed, say what social workers call neglect, is often poverty — and sometimes native tradition.
"The standards are set too high for our people," Walters says. "We're family people. If there is 30 people in my home, that's fine. [When] I was raised, there was my mom, my dad and 12 kids. And I'm very thankful I grew up that way."
He says social workers are often young and there's constant turnover. He says many seem to have never set foot on a reservation before.
Walters says the workers don't understand that most tribal members don't have money to buy gas for a parenting class two hours away or that food is often shared among families.
State officials acknowledge that only 11 of their 183 case workers are Native American. But officials say they do yearly training to teach workers native practices.
Federal Financial Incentives For Removing Children
Sometimes, though, it's not just cultural differences. Jolene Abourezk worked for the department for seven years. She says when she worked there, removing kids was expected.
Department officials told her, "It's good, you are doing a good job for taking more kids," Abourezk says. "It's just the norm here. It happens so often people don't question it. So you know if something happens all the time the same way, people don't question it anymore. It's just how it's done.
Abourezk now works for her tribe, the Oglala Sioux, and reviews every case to help get kids back.
"When I look at the cases and read the police reports," she said, "it just seems like a lot of them are just minor offenses."
Few social workers would wish for more cases. A close review of South Dakota's budget shows there's a financial incentive for the department as a whole to remove more children.
Every time a state puts a child in foster care, the federal government sends money. Because South Dakota is poor, it receives even more money than other states - almost a hundred million dollars a year.
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 reign 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."
In an interview with NPR, department officials Wieseler and Kim Malsam-Rysdon say they strongly disagree, and that money has never influenced the department's decisions to remove a child.
"The state doesn't financially benefit from kids being in care," Malsam-Rysdon says. "The state is always paying some part of it."
She says it's true the department gets more money the more children it takes. But she says, "it's still state general dollars that have to match all those dollars that come in."
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.
Then there's the bonus money. Take for example something the federal government calls the "adoption incentive bonus." States receive money if they move kids out of foster care and into adoption — about $4,000 a child. But according to federal records, if the child has "special needs," a state can get as much as $12,000.
A decade ago, South Dakota designated all Native American children "special needs," which means Native American children who are permanently removed from their homes are worth more financially to the state than other children.
In 10 years, this adoption bonus program has brought South Dakota almost a million dollars.
Malsam-Rysdon says that money stays in the department and is used to help children.
"The key to that funding is that those dollars are to be used to support adoptive placements," she says. "So the state does not gain monetarily from placing kids in adoption."
But that money and a hundred million dollars more funnels into the state economy every year. The department employs a thousand workers. It supports almost 700 foster families who receive as much as $9,000 a year per child and 1,400 families who receive thousands in adoption subsidies. Dozens of independent group homes also receive millions of dollars in contracts to take care of children.
Governor Bill Janklow ran the state in the 1990s. Asked how important the federal money that goes to social services is to the state he said: "Incredibly important."
"I mean look, we're a poor state," he says. "We're not a high income state. We're like North Dakota without oil. We're like Nebraska without Omaha and Lincoln. We don't have resources. We don't have wealth. We don't have high income jobs. We don't have factories opening here hiring people in high wage jobs."
The federal government gave South Dakota at least $15,000 for Howe's grandchildren while they were in foster care. More than half of that money went to the department's administrative costs, according to federal records.
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.
George Sheldon, who recently took over the federal Administration for Children and Families, is the man in Washington sending the money. He says the federal government needs to make complying with the law a priority for the states.
"I think we've got to do better and frankly to the extent we can provide some leadership I'd like to see us do that," Sheldon says. "When you have a financing system that pays states to keep kids in care, what's the incentive to keep kids out of care?"
A Conclusion For Janice Howe
Howe's grandchildren had been gone a year and a half. There was so much frustration. The family seemed to be falling apart.
Howe made one last desperate move. She went to her tribe's council meeting and told her entire story. She told them how the state was now about to put the children up for adoption. Many on the council nodded with familiarity.
And then they did something they 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.
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!'" Howe says.
The state offered no explanation or apology. The social worker warned that this was a trial run and the state could take them back at anytime.
Howe thinks the babies were treated well. But Rashauna and Antoinette left a size 10 and came back a size smaller. Howe says they horde food under their pillows and hide under the bed when a car pulls up.
"I feel like they were traumatized so much," Howe says.
The children don't remember their native dance, something Howe says is especially important for Antoinette, the oldest.
"We go to sweats," Howe says. "We have ceremonies at certain times a year. She's got to be getting ready to learn these things that she has to do in order to become a young lady. They took a year and a half away from us. How are we going to get that back?"
The Grandparents Group
On this day, 48 people showed up, and Antoinette and Rashauna played in the front room. Howe says they usually hide from outsiders and explained that like their mother, they are especially afraid of white people and do not want to talk to them.
Later, Howe asked Rashauna: "What was it like in foster care?"
"I thought we were going to stay there forever," Rashauna says.
And then suddenly Antoinette blurts out a story about how Rashauna wet her pants and the foster parents made her wear the underwear on her head.
Howe looked away, so they wouldn't see her eyes fill with tears. As the singing started, they slowly swayed, knowing that even now, social services can come back. Even now, at anytime, they can take the children.