“It was a sad day,” said Mary Jane Wanna, Sisseton Wahpeton Oyate, of the South Dakota House Judiciary Committee killing a bill to remove the statute of limitations for lawsuits alleging childhood sexual abuse. The measure was presented on February 6, by Representative Steve Hickey, Republican from Minnehaha County, and co-sponsored by lawmakers on both sides of the aisle.

Proponents, opponents and spectators packing the committee room heard emotional testimony from victims, who recounted sex trafficking as well as brutal serial sexual assaults. Afterward, abuse survivors wept openly in the hallway.

Hickey’s new bill had proposed eliminating the statute of limitations for childhood-sexual-abuse complaints in the state. It was intended to remedy a 2010 measure that added restrictions to such suits, banning victims over age 40 from suing institutions (such as churches and schools). The 2010 law was written as a “constituent bill” by Steve Smith, an attorney representing an institution—Congregation of Priests of the Sacred Heart, which runs St. Joseph’s Indian School, in Chamberlain—and defending about a dozen such cases.

During Smith’s 2010 testimony to the legislature, the transcript shows he told the group that the perpetrators in such cases were typically “long dead” and “can’t defend themselves,” but neglected to say that his cases in fact included living alleged perpetrators, including Brother Matthew Miles (who had already told a South Dakota court he had pled guilty to sodomizing young boys in another jurisdiction), John Donadio, Father Thomas Lind and Father William Pitcavage. About 10 other living persons have been accused in current South Dakota-related childhood-sexual-abuse cases.

Smith’s 2010 bill has been called a way to sweep his cases, and others, from the system, particularly since a South Dakota judge has been applying the statute retroactively, projecting it back in time to dismiss already-filed lawsuits. Smith’s bill was written and enacted after about 100 Native Americans filed childhood-sexual abuse complaints against Smith’s clients and other Catholic entities that had run the notorious boarding schools American Indians were compelled to attend until the 1970s. As a result, said a witness who testified by telephone, law professor Marci Hamilton of Benjamin N. Cardozo School of Law in New York, the Justice Department is eyeing the 2010 statute as a possible civil-rights violation.

Though the legislature’s discussion focused on cases with Native plaintiffs in both 2010 and 2012, one of South Dakota’s most notorious perpetrators is Father Bruce MacArthur. A Catholic priest who abused children in several white parishes, he was eventually transferred out of the state, whereupon he embarked on a multi-state trail of sexual assaults of children and hospital and nursing-home patients, for which he was convicted in 1978 and again in 2008.

Professor Hamilton also noted in her testimony that the trend in the country is to make it easier to expose pedophiles, not harder, as South Dakota has done: In court, she said, “anyone abused can name the perpetrators, and South Dakota would know where the trouble spots are.”

Robert Brancato—head of South Dakota’s chapter of SNAP (Survivors Network of Those Abused by Priests) and an abuse survivor who testified during the meeting—vowed to press forward. “I’ll be lobbying for a measure in next year’s session, and I’ll be working to unseat those who voted against this one,” he said.

Despite the thumbs-down vote, Representative Kevin Killer, Oglala Lakota, was hopeful. Killer, a Democrat from Shannon and other counties encompassing the Pine Ridge Indian Reservation, said the silver lining was the bill’s bipartisan support. During the past year, the state legislature’s polarized stance has softened, Killer said, pointing to Republican support for proposals to enhance Indian child welfare and to provide additional funding for education on the Pine Ridge and Rosebud reservations.

During the Judiciary Committee meeting, members and witnesses offered varied reasons for support or opposition to Hickey’s bill. An insurance-industry trade group’s representative warned insurance premiums might increase. Smith defended his 2010 statute. Representative Gene Abdallah, Republican of Lincoln and Minnehaha counties, said that as a Catholic, he was offended by the bill and claimed any abuse was mitigated by the good done in Native communities by the Catholic Church.

More criticism of Hickey’s proposal came from a lobbyist for the Evangelical Lutheran Church of America, which was sued in 2007 by multiple victims from multiple South Dakota congregations. The lobbyist said making sexual-abuse lawsuits easier to bring was unfair to current-day church members, who would be “negatively affected.”

Killer said he was disappointed some Judiciary Committee members didn’t separate the protections the new bill would have offered victims from the happenstance that some lawsuits might involve religious institutions. He pointed to the Penn State scandal as comparable, though not involving a church. “We are a judiciary committee after all. We should be able to make the distinction,” he said.

“It came down to money,” said Hickey. “What’s at issue here are civil lawsuits, and that means financial liability. The opponents of my bill wanted to tamp down scandal and avoid paying money. They were not thinking about the victims.”

Hickey reiterated law professor Hamilton’s point that the state is potentially liable for civil rights violations: “A U.S. Department of Justice official confirmed to me that the agency was watching the outcome [of the Judiciary Committee meeting].”

“I do hope people fight on,” said Killer. “I’m disappointed this bill died in committee. It had enough sponsors and supporters to warrant a hearing before the full House.”

Hickey noted the victims were able to tell their stories: “That was an important goal. Now we’ll figure out what we want to do long-term.”

No matter what the legislature does, there are other options, said Wanna, who is a survivor of abuse at Tekakwitha Orphanage, run by the Catholic Church on her reservation. “A spectator at the committee meeting said her reservation wants to do what we at Sisseton Wahpeton have already done, and that is pass our own civil statute, so we can sue in tribal court. I told her, ‘Call me. We’ll do anything we can to help you pass such a law for your people.’”

All the Judiciary Committee did was encourage tribal members to pass their own civil childhood-sexual-abuse laws, said Ken Bear Chief, a paralegal with Tamaki Law Firm, in Washington state. “In fact, anyone who suffered abuse on a reservation—white or Indian—has this option. White children did go to schools run ostensibly for Indians. Perhaps their parents worked on the reservation. If they were harmed, they, like tribal members, have a civil claim and can bring it in tribal court.”

Funding for this story was provided by the George Polk Program for Investigative Reporting.

By Stephanie Woodard February 14, 2012

The Indian Child Welfare Act (ICWA) has been in the news lately. A National Public Radio (NPR) series exposed horrific child-welfare injustices in South Dakota, while two CNN stories—one on the return of an infant boy to the Leech Lake Band of Ojibwe and another on the return of a baby girl to her Cherokee father—criticized the law, and then-CNN anchor Campbell Brown added some scathing commentary. We went to Frank LaMere, member of the Winnebago Tribe of Nebraska and executive director of the Four Directions Community Center, in Sioux City, Iowa, for a reading on how perceptions of ICWA are changing and what still needs to happen to ensure state social-services departments and courts nationwide understand and fulfill its requirements. LaMere is a longtime advocate for Indian child welfare who works on a daily basis with Native families.

Has recent coverage of ICWA adversely affected the attitude toward Indian child welfare?

LaMere: The exposure brought attention to the plight of our children, and I am glad of that. As a result of the NPR coverage, members of Congress were inspired to ask for an investigation of South Dakota. I wrote to the legislators involved and told them, “Don’t stop there.” South Dakota has problems, but so does the rest of the country. They should investigate every jurisdiction in every state. Here in Iowa, the social services department of Woodbury County [surrounding Sioux City] has made progress, but it’s just one of our 99 counties. Many in Iowa would still do an end run around ICWA.

What did you think of CNN’s take on ICWA?

CNN and Campbell Brown need a reality check! Brown, as a mother, said she could not imagine the hurt a white family felt when their Indian child was returned to his people. Why could she not also imagine the hurt thousands of Native families feel right now, knowing their children will cry themselves to sleep tonight because someone did an end run of ICWA and stole their children under the “color of law”? Over the generations, hundreds of thousands of Indian families have endured this pain. That’s the grim reality. We must engage and educate ICWA detractors, and we must remind them that the Indian Child Welfare Act is the law of the land—whether they like it or not. And we must applaud the tribes and parents in these recent cases for persevering and those in the courts for reuniting them with the children.

Why do even states that seem to comply with ICWA—or at least seem to try—still have relatively high numbers of Native children in foster care?

We in Iowa are trying to better understand those numbers. Native families were not identified as such in the past, and perhaps now that we’ve drawn attention to them and are identifying them as such, the numbers are rising for that reason. Additional data I want is tracking of individual social workers’ records of pulling our families apart—or keeping them together. Once we have these numbers, we need to ask what their agencies are going to do about it. This needs to happen everywhere, and it needs to happen now.

How does a Native parent fare in child-custody matters when facing a non-Native parent?

Generally, not well. Right now, I’m dealing with the worst case I’ve ever seen and the best example of how the system can fail our families. Two severely disabled Native children were taken from their white father, a founded—that is, proven­—child-abuser. After a crisis, during which one child ended up in the hospital, the court gave the youngsters temporarily to their Native mother. Now the state of Iowa has decided to reunite the children with the father, and the mother fears for her children’s lives. This is about old attitudes that make it tough for our Native families to get justice and to convince courts that ICWA, a federal statute, must be heeded.

Can you give some examples of what Native parents face?

I sit in on many meetings to determine the fate of Native families—along with the judges, lawyers, social workers and others involved—and I observe that they do not apply objective standards. If one standard were applied to all, Native children would go home more often than not. Time after time in these meetings, the Native parent has solved the issue—typically alcohol or drugs—that caused the children to be taken away. The parent proudly announces, “I’ve been sober for 22 months,” or what have you. We all congratulate them on their new wellness, then when that conversation dies down, a social worker inevitably says, “Well, yes, but… ” and raises a new issue. He or she may bring up a long-resolved problem from 20 years before, or something new. At a recent meeting, a social worker announced she’d found dirty dishes in the sink during her last visit to the mother’s home, so the mother shouldn’t get her kids back. I became unglued. I stressed that the mother didn’t lose her children over dirty dishes, and they couldn’t be kept from her for this reason. I deal with this kind of thing every week.

Do states have a financial incentive to ignore ICWA?

It’s a conspiracy of silence. Everyone knows our children feed the child-welfare system. They have for a long time and will continue to do so, because the funding is set up that way [with more children generating greater funding]. But those who work for the system won’t speak up. Beyond that, many social workers and courts nationwide feel they know better than we do about what’s good for our children. It remains for Native people to speak up. We must keep blowing the whistle on the child-welfare system, to local, state and national lawmakers. Only then will we have a chance to keep our families intact.

Is this what Four Directions does?

We at Four Directions Community Center routinely make people in the child-welfare system uncomfortable. Nothing changes until someone feels uncomfortable. That includes us. It is hard to confront those who control the systems that control our lives, but we must. Our children and their futures are in jeopardy. We have a long way to go, but we will prevail.

Click here to read our Q&A with Diane Garreau, ICWA director for South Dakota’s Cheyenne River Sioux Tribe.

Too many Native parents face extraordinary hurdles in keeping their children—including cultural misunderstandings and legal barriers that are unimaginable to many non-Native people. In this second decade of the 21st century, American Indian children in states across the country are still taken from their families and placed in foster care or adoptive homes at a much higher rate than those for other kids—just as they were before the passage of the 1978 Indian Child Welfare Act (ICWA), a federal statute intended to help keep Native families intact.

In Alaska, Native children make up 20 percent of the child population but 51 percent of those a state agency has placed in foster care; Montana, Nebraska, Oregon, Utah, North Dakota and Washington also have similarly skewed ratios. In Minnesota, the percentage of Native children in foster care is high, and it’s gotten worse in recent years. “Disproportionalities exist nationwide at every stage in the process, starting right from the initial reports of possible abuse or neglect of a Native child,” says Kristy Alberty, Cherokee, spokeswoman for the National Indian Child Welfare Association.

To safeguard their children, many tribes have offices dedicated to the implementation of ICWA. Among other provisions, the 34-year-old law allows tribes a role in the process when states place Native children in foster care or seek to terminate tribal members’ parental rights. Diane Garreau is the ICWA director for the Cheyenne River Sioux Tribe in South Dakota, where Indian youngsters make up 15 percent of the state’s children, but 52 percent of those in care.

What are some of your biggest challenges?

Garreau: Because we are a west-river tribe—that is, west of the Missouri, which cuts across the state—many of our ICWA cases come out of the Rapid City courts. They are notorious for taking kids away from parents, who may not have a lawyer at the initial hearing. The state almost always gets custody for 60 days, during which time it can investigate to see if there’s actually a problem. Imagine how frightened the little ones must be. They’re taken from everything they know for all that time—and possibly for no reason. It makes me so angry.

Sounds like this is personal for you.

I don’t want the trauma boarding schools inflicted on previous generations to claim today’s children. I know the pain of separation from family and community, the hurt you feel when you’re taken from those who love you and want to protect you. When I was a student at St. Joseph’s Indian School, a boarding school in Chamberlain, South Dakota, I experienced mistreatment—like many of my age group. That was 30 years ago, not 150 years.

What should happen in the state courts?

All parents should have lawyers at every hearing. To get custody of the kids, the state should have to prove there’s a problem, and that the family wasn’t simply in the wrong place at the wrong time. Of course, some children need protection, but under ICWA, an expert witness who’s familiar with tribal customs and traditions must testify as to whether the Native children are actually in danger. Native youngsters are sometimes removed from their families because grandma or auntie is taking care of them—a culturally sound option as far as the tribes are concerned, but one that any state may define as neglect. A federal law is being flouted—and frankly, it’s happening in courts all over our state.

Are there other options state courts could consider?

The courts could give parents physical custody and social services legal custody and mandate the efficient creation of a safety plan. That way, the family could stay together, and we could be certain the children were safe while we figured out the situation.

How long does it take to come up with the plan?

Right now in South Dakota, it can take several months, so parents who’ve lost their kids are in the dark all that time about what to do to get them back. They’re also typically not told what services are out there for them. They’re really at a loss. So I tell parents, “You know your issues; work on them.” Then I help them find programs. But that’s not the only hurdle: Let’s say a mother lost her kids in Rapid City. She didn’t have representation, she’s fearful and confused, so she comes home to the reservation for advice and support. The state may call this abandonment and move to take her kids permanently for this reason.

And it doesn’t stop there: If a Native person was ever arrested, they typically had no bail money and a busy, perhaps inexperienced public defender, who told them to plead guilty to get out of jail. So Native moms and dads may be stuck with convictions they wouldn’t have had with better legal representation—and that can affect what a judge thinks of them when deciding whether they can have their kids back.

Doesn’t ICWA allow you to move cases to tribal court?

Absolutely. Under ICWA, I can transfer jurisdiction, and once I’ve intervened, I can see the kids and have access to any investigations. I can have a say. All of this is good, except the state still manages to hold tight to custody of the kids for much of that 60 days. The investigative process still has to happen. Resolving a family’s problems is still more difficult and painful than it needs to be.

Has implementation of ICWA improved?

When I started as an ICWA director in 2002, states all over the country just didn’t pay attention to the tribes. It felt like we were sitting out on the prairie, so out of touch. Now, some are improving: Oregon reliably notifies us when Native children go into care there, and New York has been easy to deal with. To create the best outcomes in spite of existing issues in some other states, an ICWA director has to build relationships. I want social workers nationwide to know they can call Cheyenne River for advice about ICWA. In some cases, those personal relationships have meant I could resolve a family’s problem in hours when it might have taken months.

How many ICWA cases do you handle annually?

We get 1,000-plus inquiries a year and respect every one, checking with our enrollment office to see if those involved are tribal members. Some claims can be far-fetched. One state called me and said, “We’ve got this person who says she’s related to Pocahontas.” That was very cute [laughs]—and I understand she may have been desperate to keep her kids and was grasping at straws—but she definitely wasn’t a member here. Of the thousand requests, about 50 will be Cheyenne River kids.

Is that a lot for a small staff?

It is, and we get burned out with just two full-time workers and minimal resources. All ICWA offices function with few resources; a colleague at another tribe once told me, “All I have is a car and a cell phone.” I recently got very sick and realized I’ve got to take good care of myself to keep doing this.

What about parents who aren’t enrolled, though they could be?

Under ICWA, parents have to be enrolled for their kids to be covered. Problems arise because during the mid-20th century, many Native children were adopted out [see “Native Americans Expose the Adoption Era and Repair Its Devastation,” IndianCountryTodayMediaNetwork.com, December 6, 2011]. They were not enrolled prior to adoption and are now adults; if their children happen to be taken away, those kids are not covered. If the parents can prove their relationship to a tribe, maybe they can fix this, but not always. This is another situation in which a historical wrong has life-changing repercussions today.

What can tribes do?

If they have eligible youngsters who are currently being adopted out, they must enroll them first, to keep intact the children’s rights to inherit land, obtain scholarships and health care, have their own kids protected by ICWA and so on. We do this at Cheyenne River to protect children’s futures and give them a sense of belonging to a proud nation. Any child, of any background, needs that sense of belonging.

Do other laws conflict with ICWA?

We tribes have said states’ so-called “safe haven” or “Baby Moses” laws, which allow parents in crisis to drop newborns off in safe places such as hospitals and police stations, are in violation of ICWA. Those infants move quickly into foster care and preadoption. How and when do we determine if they are Native children? No one thought of this when the laws were passed.

Why are there few Native foster homes in South Dakota?

Poverty and fear. The agency that gets a lot of contracts to do home studies often calls me to say Native people who want to be foster parents haven’t responded to requests to evaluate their homes. They don’t realize how much Native people dread being told they can’t be foster parents because they don’t have lavish homes, expensive furniture and so on. A policy could be created under which a tribal member, say from the ICWA office, went along during the home study to reassure our people they’ll be treated fairly and that, in essence, we want to be sure the home is clean and safe and that the children will be welcomed with love while they’re there.

Do the ICWA directors of different tribes communicate?

We do, but we could all do more. If we had a national professional association with a website, we could post lists of pro-bono attorneys, potential funders, expert witnesses and other resources. We could share best practices and answer each other’s questions. We could provide information on state ICWA laws, which enhance the federal protections, but in different ways from state to state. ICWA directors are on the front line, in and out of the courts, dealing with families in crisis. We need to be a force to reckoned with, and information sharing would help us become one. We Native people have to solve our own problems, and this would help us do it.

What keeps you going?

I was at a pow wow recently and saw a group of Cheyenne River kids, then another group, and remembered they were all ICWA kids—children our office had brought home. This is why I do it. If you’re not watching, if you don’t start hustling as soon as you hear there’s a problem, if you don’t fight for every single child, they’re lost to us forever.

Click here to read our Q&A with Frank LaMere, member of the Winnebago Tribe of Nebraska and executive director of the Four Directions Community Center.

Funding for this story was provided by the George Polk Program for Investigative Reporting.