By Thomas Blanks

Photo Courtesty of Lakota People's Law Project

What do you call it when a state government, utilizing federal funding, does the following: systematically removes an ethnic or racial group’s children from their parents, relatives, language, history, traditions and culture without due process, places these youths with foreign “foster” parents or in a group home where the institution is provided monies and means to administer psychotropic drugs to them, and if the youths survive to 18 years old and are no longer eligible for such special “care,” unceremoniously dumps these young adults back into their original community, where their suicide rate is three to six times greater than the general population?

We call it Genocide.

“Child-stealing,” according to Madonna Thunderhawk and her sister Mable Ann Phillips, founders of the Lakota Grandmothers organization, is how it is colloquially known in low-income and minority neighborhoods across the United States and Canada. They explained to NEJA representatives that they are fighting to end the practice in South Dakota, because if not stopped, it will be the final blow to what remains of many indigenous tribes. They asked NEJA to help publicize their efforts.

The two Grandmothers, veterans of the American Indian Movement, told NEJA the State of South Dakota had seized Native children from their homes, claiming they were being abused and neglected. For at least the last decade, nearly 90% of them have been “placed” into private, non-Native foster care or group homes in violation of the 1978 Indian Child Welfare Act (IWCA). The IWCA requires state courts and private agencies to seek family reunification or family placement, involve tribes in decision-making regarding their children, and protect fundamental parental rights.

Indigenous children make up 15 percent of South Dakota’s child population, but comprise more than half of the children in foster care, due to what some call an epidemic of illegal seizures of Native children by the state. Less than half of Native youth are reunified with their family once entering the South Dakota foster care system.

On March 31, 2015, the Oglala Sioux, with the help of Lakota People’s Law Project, The Romero Institute, the ACLU and other supportive organizations, won a landmark legal victory in a class action suit in the United States District Court for the District of South Dakota, when Chief Judge Jeffrey Vicken ruled in their favor in the cases of Oglala Sioux Tribes v. Van Hunnik and Rosebud Sioux Tribe v. Luan Van Hunnik. Judge Vicken determined that the State of South Dakota was systematically violating the Constitutional rights of Native American families and children and was guilty of all seven of the Oglala Sioux charges against it.

The Court found that South Dakota removed Native American youth from their parents where “court hearings lasted as little as 60 seconds,” with parents having no chance to present evidence, denying them due process of law; and that the State, several of its high elected and/or appointed officials, including state judges, members of the South Dakota Department of Social Services, and state attorneys, conspired to deprive Native American families of their rights under ICWA and the Fourteenth Amendment. It held that when children are removed from their biological parent(s), they are to be placed preferably with a relative. If that is not a viable alternative, the next priority of placement is for the youth to be placed with a family of the same culture. Only as a last resort is the young person to be placed with a family not of the youth’s culture and/or in a group home.

The 45-page ruling said these circumstances contributed to 53% of South Dakota’s annual state budget, or $63 million, being drawn from the federal government allocation for Native American children in foster care, despite violations of the law. The Judge further directed that South Dakota provide parents with adequate notice prior to emergency removal hearings, and allow parents to testify and to provide evidence at the hearings. He also directed that the state institutions “responsible for repeated and widespread violations of ICWA must be under federal supervision going forward.”

On February 19, 2016, the Court denied South Dakota government officials’ motions for reconsideration of his order to them last March to stop violating the rights of Native American parents and tribes in state child custody proceedings.

A Cash Cow

The foster care system is a cash cow. South Dakota’s foster care system receives $79,000 per Native child per year from the federal government. Only a few private corporations provide foster care and juvenile justice services, and these businesses generate profit from each move a Native American child is forced through in the South Dakota system, from the initial “incident,” to emergency shelter, to social service and psychiatric “evaluations,” and actual administration and medical care.

For example, since 2003, South Dakota has claimed 100% of the children in its foster care system as “special needs,” adding another federal bonus of $4,000 (per a Congressional authorization) for each child, with an additional $2,000 for each “special needs” adoption above the baseline payment of the Adoption Incentives program. Families who finalized the adoption of a child with special needs in 2015 could claim a tax credit of $13,400, according to the North American Council on Adoptable Children (www.nacac.org, 2015).

Pharmaceutical Company Bonanza

According to Daniel P. Sheehan, Chief Counsel to the Lakota People’s Law Project, “When the state of South Dakota seized a Lakota child, the child was forced to take a mental health screening test. This screening test was drafted up by the Eli Lily Corporation, a major manufacturer of psychotropic drugs.” When they failed to “pass” the test, they were determined to be in need of one or more of these drugs. In a 2012 document by the ICWA directors from South Dakota’s nine American Indian tribes entitled “Is South Dakota Over-Prescribing Drugs to Native American Foster Kids?” the directors found that South Dakota appears to have prescribed antipsychotic drugs to foster children prior to 2006, even though the FDA had not approved the use of these drugs by children at that time. After 2006, they concluded “the state seems to have over-prescribed these agents to children.”

These tests in South Dakota can be traced back to the Texas Medical Algorithm Project, or TMAP, a flow chart developed in Texas where psychiatrists asked foster care children questions and their answers led to doctors, prescription of psychotropic medications, often ones not approved for use in children and which research has shown alter brain chemistry and in instances have been shown to cause suicidal tendencies in youth.

“If these drugs should cause significant negative side effects including attempts at suicide,” Sheehan explained, South Dakota is then “placing them in psychiatric facilities. They built three juvenile psychiatric facilities in South Dakota and began to fill them up with Lakota kids.”

South Dakota ICWA directors said South Dakota receives $4,488,140 a year for administering “psychiatric services” to Indian children, the cost attributed to pharmacological “therapy.” The current Governor of South Dakota, Dennis Daugaard, was a long-time South Dakota Children’s Home Society paid Executive Director, including during his tenure as Lt. Governor from 2003-2009. (See, “Reviewing the Facts: An Assessment of the Accuracy of NPR’s Native Foster Care: Lost Children, Shattered Families, Lakota Law Project, 1/22/13.” (http://www.lakotalaw.org/wp-content/uploads/2013/01/Reviewing the Facts, An Assessment of the Accuracy of NPRs Native Foster Care, Lost Children, Shattered Families.pdf.)

“There is undoubtedly lasting trauma to children who are permanently removed from their birth families,” Chrissi Nimmo, attorney for the Cherokee tribe, stated in the Lakota/Sioux Tribes Coalition report. “Each child literally holds the future of a tribe. If children are removed, tribes are at risk of becoming extinct — both because there literally may not be children to continue the tribe and because the cultural identity of the tribe cannot be passed to the next generation.”

One of the biggest concerns of the nine Oglala Sioux tribes is that children are being taken away and the parents prosecuted for “neglect,” where the definition of “neglect” equates with poverty. South Dakota’s rate of identifying neglect is 18% higher than the national average, according to a Lakota Report to Congress. Native American women are thus disproportionately prosecuted at six times the rate of white women in the nation. The Congressional report said that when Native parents are arrested and their children are taken away, the parents have no means of contact with their children and no information is communicated to them, making it extremely difficult to reclaim their children.

Over 150 Years of Ethnic Cleansing

The ICWA resulted from Native American organizing in the 1960’s and 1970’s against the federal Bureau of Indian Affairs ethnic cleansing program of “Kill the Indian, Save the Child,” which operated in Indian boarding schools. These boarding schools were first initiated in the United States and Canada in the 1850s. In the U.S., Native children were taken from their homes, forced to cut their hair, abandon their native dress and forgo all of their cultural practices and language. They were taught a rote curriculum and often worked as slave labor and provided insufficient food and medical care. As a result, Native students suffered death, illness, and sexual, physical and mental abuse in these schools.

Forced enrollment in these schools spiked in 1973 to 60,000 nationwide. In 1975 Congress established the American Indian Policy Review Commission, which held hearings leading to Congressional passage of the IWCA in 1978.

The first U.S. study of government abuse of Native Americans and Native American conditions resulted in the Institute for Government Research’s 1928 Meriam report, which condemned the Indian boarding school system as “grossly inadequate,” as well as various land schemes. However, little change occurred, as the Bureau of Indian Affairs kept the boarding schools open. It took another fifty years and concerned Native American organizing to gain passage of 1978 ICWA, which attempted to establish federal standards detailing requirements that a Native American child will not be removed from his or her family home unless absolutely necessary, and be preferentially placed in his/her extended family or tribe, with an Indian foster or adoptive home that reflects “the unique values of Indian culture” and, only as a last resort, with any non-Indian family.

Canadian Truth and Reconciliation Commission

Canadian governmental policy toward its indigenous peoples was equally devastating for Native culture and survival, a Truth and Reconciliation Commission stated in a report released June 2, 2015, after hearing testimony over several years by nearly 7,000 witnesses, including tribal government representatives, former boarding school students, Canadian officials, educational, religious and other community members. The Canadian Truth and Reconciliation Commission found that “establishment and operation of residential schools were a central element of this policy, which can best be described as ‘cultural genocide’.” The Commission recommended implementation of the United Nations Declaration on Indigenous Peoples, in addition to 94 other policy changes, further inquiries and government actions toward “reconciliation.”

The Canadian Truth and Reconciliation Commission found that, as happened in the U.S., thousands of children died in the boarding schools, away from their parents, relatives and culture, forced not only to abandon their native language and tribal customs, but often to labor with insufficient food, housing, clothing or hygiene, severe physical and mental abuse, including rape, forced abortions, medical experimentation and other horrors. Duncan Campbell Scott, who became deputy superintendent general for the Canadian Department of Indian Affairs Agent in 1913, wrote to a subordinate in 1910, “Indian children … die at a much higher rate [in residential schools] than in their villages. But this alone does not justify a change in the policy of this Department, which is geared toward a final solution of our Indian problem.”

Not Cultural Genocide, but Genocide

Dr. Pamela Palmater, a Mi’kmaq attorney and Associate Professor and Chair in Indigenous Governance at Ryerson University, disagrees with the Truth and Reconciliation Commission’s determination of “cultural genocide.” She says it wasn’t “language genocide” or “almost genocide” but “genocide.” She points out that the UN specifically left out “cultural genocide” from the Convention on the Prevention and Punishment of the Crime of Genocide. She cites sections of the UN definition of genocide, which includes, “killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group.” (“Canadian and Church Officials Must Be Held Accountable,” by Dr. Pamela D. Palmater, www.teleSURtv.net, 6/17/15). Palmater notes that “there is no set number of people that must be killed for the crime of genocide to occur.”

Palmater further points out that the Canadian residential schools created “circumstances which lead to a slow death,” which were criminal acts, then, “just as they are now” and they can’t be looked at in isolation. Palmater said more investigation is needed to determine the full truth to “look at all Indian policy: forced sterilizations, child abductions, murdered and missing women and prison over-representation.” In Manitoba Province, for example, the Indigenous population is 4% of the total population, but 50% of murdered girls and women are indigenous.

NEJA supports the efforts of all indigenous peoples, including the Lakota Sioux Grandmothers, to achieve equal social, and economic justice. As Madonna Thunderhawk concludes, “The efforts of the Lakota Grandmothers to hold the State of South Dakota accountable for its defiance of the ICWA and the disappearances of our grandchildren are only the first drumbeats of a political and cultural resurgence by the Lakota people.”

NEJA Bulletin

Oglala Sioux Win Federal Ruling Against Government “Child Stealing”