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Victims of South Dakota injustice speak out
Advocates say court decisions will help keep Indian families intact
PIERRE SD
Ruth Steinberger 1/19/2005
Editors Note: This is the second in a series of reports detailing court
decisions that have significant implications for the Indian Child Welfare Act.
Two South Dakota Supreme Court decisions released recently signaled strong
victories for the Indian Child Welfare Act, a federal law passed in 1978
intended to halt the removal of Indian children from their families.
This is an issue affecting families in every tribe in America.
In both cases, actions by the South Dakota Department of Social Services that
resulted in family terminations were deemed by the South Dakota Supreme Court
to have been handled outside of the provisions of ICWA. These complicated cases
signal victories for Indian people who are trying to keep families together.
In a case involving a Rapid City family, a judge overturned a lower court
decision that preempted the federal law known as ICWA by a federal law called
the Adoption Safe Families Act (ASFA), a 1996 law intended to speed up family
terminations and adoptive placements in cases where there is no hope of family
reunification, such as where a parent has killed a sibling of the child.
In a second case the court upheld standards for individuals who are used as an,
‘expert witness’ in an ICWA case, overturning a family termination based on
testimony by someone who the parents as well a the Cheyenne River Sioux Tribe
contended was not qualified to be used as an expert witness.
In the first decision, the court found that ASFA does not release the state
from having to follow the mandates of ICWA regarding making efforts to locate
appropriate family or tribal placements for the child even if termination is to
take place.
In the court opinion Justice Konenkamp wrote, ‘Under the Adoption and Safe
Families Act (ASFA), enacted in 1997, “reasonable efforts” to reunify a
family are not required before termination of parental rights when a parent has
a pattern of abusive or neglectful behavior constituting an aggravated
circumstance. On the other hand, the Indian Child Welfare Act (ICWA), enacted
in 1978, provides special rules for the needs of Indian children and families.
We conclude that ASFA does not override the requirements of ICWA.”
Peg Eagan, Cheyenne River Sioux Tribal Attorney said, “The clear language
that says that in no way does a finding that ASFA applies to the case overall
release the state from following the provisions of ICWA.”
ASFA includes five circumstances in which the state is relieved from making
active efforts to reunite the family including violent offenses. South Dakota
added three more circumstances, making eight ASFA provisions altogether in
South Dakota law. Eagan added that, “Two of these three fall
disproportionately on Indian families.” Eagan added that if this case had
been decided differently, and it was determined that ASFA overrode ICWA, the
added circumstances of South Dakota ASFA would have seriously impacted Indian
families.
Supported heavily by the private adoption lobby in congress, ASFA accelerates
the process toward termination and adoption in cases without hope of family
reunification. On the other hand, ICWA provides stability for Indian children
by slowing down or halting removal and searching for relative contact and
placing the child within the extended family or within the child’s tribe.
The removal of Indian children from their families throughout the last century
is a painful issue affecting thousands of families, and is recognized to be
tied to the rates of depression, suicide, alcoholism and substance abuse
shaking the foundation of tribal communities.
Sandy White Hawk is founder of First Americans Orphans Association and is a
victim of Indian child removal in the pre-ICWA era. White Hawk cheered the
recent decisions saying, “I was very excited to see that the South Dakota
Supreme Court said that ASFA can’t take precedence over ICWA. The Indian
Child Welfare Act is a federal law. We see time and time again where the states
do not recognize it as a federal law.” White Hawk continued, “We observe in
court, and hear social workers treat ICWA as if it were a minor obstacle that
they have to get around for child placement. We are still trying to educate
judges, lawmakers and social workers that ICWA was put in place to preserve and
bring back our extended family system that was nearly destroyed through
adoption and foster care.”
White Hawk said, “It takes a lot to work with a family that has a history of
alcoholism and abuse, but as Indian people we understand where these problems
began. Of course the families that need the most help are where there is a
break down. No family is beyond hope. No Indian child is without relatives
somewhere, and it does take a lot of work to connect that family system, either
locating a kinship caregiver or a relative, but it is not impossible. If the
effort was put there instead of taking the dollars and destroying and
separating the families we would begin healing our communities.”
White Hawk noted that the removal of Indian children creates the next
generation of parents facing the same struggles that existed the generation
before. She said, “It’s a cycle. In First Nations Orphans Association we
try to get to the grass roots level of our communities and begin healing from
that intergenerational trauma to our family system that began in 1890.”
White Hawk explained that First Nation Orphans Association was founded through
recognizing the need to provide advocacy for adoptees, fostered individuals,
within their communities in order to reunite. She said, “And not just to
reunite with each other, but to reunite with professionals, their tribal and
spiritual leaders, to get them what they need to begin the healing process. We
find that people that have been taken from their culture and have come back,
there are three areas they are in need of. They are emotional healing,
spiritual healing and a lot of legal advocacy.” White Hawk reiterated, “No
family is beyond hope.”
She concluded, “The Supreme Court decision is an answer to our people’s
prayers. As Indian people we are aware of what our families struggle with and
we are recovering from a history of near destruction of our extended Indian
families.”
Dwayne Stinstrom, Winnebago, is also a victim of pre-ICWA removal who works
closely with First Nations Orphans Association. Now living on the Rosebud Sioux
Reservation, Stinstrom speaks publicly on this issue. Stinstrom noted that the
removal of Indian youth, and the turmoil created for Indian families, now
affects families on all reservations. He said, “What impresses me is that
when an Indian child gets taken away they develop a commission, when a
non-Indian child gets taken away they have an Amber Alert. In 1968 I was
sold.” Stinstrom added, “I am a product of pre-ICWA and I was taken from my
mother in 1968. I’ve been testifying since last year. ASFA has been used to
wipe out ICWA.”
Stinstrom said, “They need to look at what is going on here and this is all
about money. And now they have tried to preempt ICWA with ASFA.”
He testified during the hearings held by the governor’s commission on
enforcement of ICWA that ended December 31st in Pierre. “Most of the people
on the commission were more concerned about the extra work that the welfare
people would get than why they were really there,” he said.
He added, “What pre-ICWA did was it tore my family apart. I just got to meet
my oldest sister five years ago when I turned 40. It was devastation from the
get go. I am more fortunate than my brothers and sisters in that I got to meet
my mother before she passed away. I got to meet my mother in December of 1980,
and she died five months later. But it was through her funeral that I got to
meet five of my other brothers and sisters, we couldn’t locate the oldest
one.”
Living in Nebraska the state had taken all of the children and then Stinstrom
and his siblings were separated. He said, “Me and another brother were the
last two to go. In 1968 we were taken from her.” Stinstrom’s mother was
handed a piece of paper to sign, and he said, “She signed it, she didn’t
know what it was.”
Stinstrom said, “What I tried to get across to tribes is that I don’t
understand why jurisdiction has been given up to the state. In 1954 the state
had the opportunity to take jurisdiction and they refused it, why have we given
it to them now?”
Noting the tragedy of undermining ICWA now based on the damage done to families
before ICWA was in place, Stinstrom said, “Even though ICWA was passed in
1978, there is a whole generation of us out here who are looking for our
families. I was fortunate, I found mine. But I have spoken with people as
recently as three years ago who are still looking for their roots.”
“When you look at this issue chronologically, anyone who was taken from their
families prior to 1978, and you had the whole family torn apart; there is a lot
of intergenerational emotional turmoil they have gone through,” he said.
He continued, “If they never get it resolved there is a very good chance they
will get into alcoholism, domestic violence, and the state and federal
government will try to address that by instituting ASFA, and when these
families start to act out they take their kids away just like they did to their
parents before them. ASFA is intended to expedite the break up of the family,
and the whole cycle starts over.”
Stinstrom said, “This has nothing to do with the kids; and what is in the
best interest of the kids is a joke. I have been waiting for 45 years for
someone to ask me what it did for me, and I have yet to have anyone ask me my
opinion of what it did for me. No one has asked me anyone.”
Stinstrom was in non-Indian foster homes from the time he was removed from his
mother. Because the time period was before ICWA, no effort was made to offer
him an opportunity to be around his own culture. He said, “When my brother
turned 16 we took off back to Winnebago to try to look for my mother.” The
boys were caught and jailed.” He continued, “This story has had an enormous
impact on me and affects me today. The summer before being removed we spent the
summer with a mission.
“That first summer they took us to Iowa to spend the summer with a farm
family to have something to do. After the month and a half was over the mission
came for us and took us back to Winnebago, and we were back with my mom and all
was well. The next year the same thing happened but this time when they took me
away from my mom I waited and waited for these people to come back and get me.
Weeks went by, months went by and years went by and I realized no one is
coming. No one told me what was going on. The irony is that when my brother was
in Viet Nam fighting for this country there was no one to fight to protect our
mother from the government he was fighting to protect. People need to
understand that there was a whole generation of people that were thrown out to
rot. And we are surviving and we are coming back full force.”
Stinstrom said, “In the early years no one talked about this stuff…there
was a lot of shame attached to this. This brings up painful memories for many
people. There are as many reasons for someone losing their children as there
are people you talk to. Most of the people who were taken away still have no
closure. They don’t know what happened to them and many do not even know what
reservation they are from. Essentially, we went to bed in a tipi surrounded by
family, and woke up in a three room house surrounded by strangers. Someone
commented to me that I was lucky to have been taken when I was eight and he had
been taken from his family when he was two. I asked how I would happen to be
lucky in this circumstance. After all I knew my family and knew I could never
visit them again. I asked so what makes this so lucky?” He answered, “That
at least I knew who my family was.”
The Split Feather survey started when a lot of adoptees looking for their
families, and the research focused on 20 individuals ranging from 19 to 72
years old. Stinstrom noted, “All had something in common, they all had their
lives torn apart. Nobody to this day, no one has tried to address that
issue.” Stinstrom feels the pre-ICWA damage to families affects the families
on the reservation today. He said, “It wasn’t until the commission started
that people started talking publicly about this here. But the commission is
talking about the present time, they are not talking about pre-ICWA and a lot
of these people who are now loosing their kids were affected during that era,
are people who themselves were removed.”
He concluded, “I was very glad that those two decisions came out the way they
did. It’s about time. My question is how many families have been raked over
the coals since ICWA was passed and they have found ways to continue to destroy
Indian families.”
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A good friend will come and bail you out of jail . . . but, a true friend will
be sitting next to you saying, "Damn . . . that was fun!"
-----Unknown
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