Rough Justice in Indian Child Welfare

Published on Investigative News Network affiliate in December 2012. Excerpt published in Huffington Post in January 2013. For more on topics like this, see my book, American Apartheid: The Native American Struggle....

In a basement interrogation room in South Dakota, agents of the state’s Department of Criminal Investigation were on the firing line. A group of Native American children was claiming sexual and physical abuse by white adoptive parents with whom they’d been placed as foster kids.

South Dakota was already under Congressional scrutiny for the high number of Native children it takes from their homes and tribes then places, for the most part, with white foster families or in white-run group homes—seemingly to claim a higher share of federal foster care funding. Though Native children make up about 13 percent of South Dakota’s child population, they are typically more than 50 percent of those in care, according to federal figures. A new tribal report confirms that few Native foster children are placed with relatives, in so-called kinship care. The tribes prefer this, but it captures no federal foster care dollars, so South Dakota avoids it, says the report.

The state’s response to the Native children’s abuse accusations offers a rare look into its foster-care system. The response also raises questions about South Dakota’s willingness to protect Native American children housed with white families, particularly when homes that are presented as safe havens turn into places of abuse. 

Startlingly, the agents who summoned the children to the interrogation that day in November 2011 were working hard to get the kids to recant their abuse claims. Sheriff’s deputies had taken the children out of school, court records show, and brought them to the basement room, with its table, chairs, one-way mirror, and recording equipment. One by one, the children faced Agent Mark Black of the Department of Criminal Investigations and a partner. The children were each alone, without an adult present on their behalf.

While being questioned by the agents, the children became fearful and wept, according to someone familiar with the case who asked not to be identified for fear of retribution. The youngsters were apparently not told they were being recorded. While left alone for a time, one explored the room, discovered the camera equipment behind a peephole, and began to cry.

The DCI video of the interrogation is now a court document. In a four-minute excerpt that can be seen on YouTube, the agents are taking a break. They’re off-camera, apparently unaware that the microphone is still picking up their voices as they plan their strategy. One agent says the children “have been f---ing with us.” The men talk about questioning the therapist to whom the children described the sexual assaults. Agent Black says, “I guarantee we put [her] in here. Put the f---ing hot screws in her. Bitch you’re in f---ing deep shit. You better start talking.” Later Black says, “At least we f--- with Brandon.”

Brandon Taliaferro was the deputy state’s attorney who brought charges against the adoptive parents in 2010, following a police investigation of the children’s abuse allegations. The charges included nearly three dozen felonies, including rape, sexual exploitation and cruelty occurring over a decade. Shirley Schwab, the children’s court-appointed special advocate, supported Taliaferro’s action. Local news media followed the case avidly as it developed.

Since the interrogation, Agent Black has testified multiple times that he was trying to get the children to recant their abuse claims and to say that Taliaferro and Schwab had encouraged them to lie about the abuse, but the youngsters never did. Nevertheless, the state moved on the two whistleblowers, raiding their homes and offices and hitting them with felony and misdemeanor charges related to persuading the children to lie. Later testimony would indicate that investigators had turned up no evidence of this. 

Frank LaMere
In May 2012, Michael Moore, the state’s attorney prosecuting the case against the adoptive parents, dismissed all charges against the mother. The state returned the children to her and gave the father a deal. He admitted to one count of raping a child younger than 10 and was ordered to serve 15 years in prison. He will reportedly be eligible for parole after seven and one half years. 

Frank LaMere (shown here) is a prominent Indian-child-welfare advocate and head of Four Directions Community Center, a Native nonprofit in Sioux City, Iowa. He called for a federal investigation into South Dakota’s foster care system and predicted that this latest situation may become South Dakota’s Penn State. “This is a scandal of the highest order,” said LaMere.

A very bad year

Late 2011 was a difficult time for South Dakota’s foster care system. In addition to facing this latest abuse case, the state was figuring out a financial settlement in the so-called Jane Doe lawsuit. It had been brought on behalf of a 9-year-old foster child who was reportedly sexually abused over a period of two years in a group home. Schwab was one of the whistleblowers for that case as well, she said.

Then, days before Black’s interrogation of the Native children and the searches of Taliaferro’s and Schwab’s premises, National Public Radio broadcast a scathing report, charging South Dakota with rampant taking of American Indian children into foster care. The network said the state receives $100 million dollars annually in federal funds on behalf of foster children of all races, giving it an incentive to keep the numbers of children in care high. Alarmed, six House members had asked the federal Bureau of Indian Affairs to look into possible violations of the 1978 Indian Child Welfare Act, intended to keep Native children within their Indian families and communities.

Tribal ICWA report

Last month, things got even worse for South Dakota. A tribal report (cover shown left) accused the state of “willfully” and “systematically” violating the Indian Child Welfare Act and taking Indian children “at least partly to bring federal dollars into the state.” The document came from a committee of ICWA directors of South Dakota tribes (shown below). They are tribal child-welfare officials tasked with enforcement of the act.

On December 7, Congressmen Ed Markey (D.-MA) and Ben Ray Lujan (D.-NM) reacted to the tribal report by sending a strongly worded letter to the Bureau of Indian Affairs. Markey is the top Democrat on the House Natural Resources Committee, which has jurisdiction over Indian affairs, and Luhan is ranking member of the subcommittee on Indian and Alaska Native affairs. Citing the tribal report, the congressmen called for a House investigation of South Dakota for possible “misappropriation of federal dollars to state coffers.”

“This has gone on long enough,” said Markey. He and Lujan also reminded the Bureau of Indian Affairs that 14 months ago House members asked the agency to hold a “summit” on the situation. Congressman Tom Cole (R.-OK) and three others had gone even further. In a move reminiscent of Robert Kennedy sending federal marshals to enforce civil rights in Mississippi in 1962, they proposed in late 2011 sending federal attorneys to South Dakota tribes to help them enforce the Indian Child Welfare Act. At that time, the Bureau of Indian Affairs announced it was looking into these suggestions, but took no action.

The bureau has been closely following events in South Dakota, said spokeswoman Nedra Darling. “The BIA supports the ongoing tribal efforts to resolve this matter, and we stand ready to participate in future forums.” 

Meeting of tribal ICWA directors
South Dakota is not the only state that removes Native American children from their families and tribes in disproportionate numbers, but its numbers are among the most skewed, according to the National Indian Child Welfare Association. The federal dollars South Dakota receives on behalf of all children—Native and non-Native—are considerable. They flow onward to state agencies, foster and adoptive parents, and group homes, as well as to employees and suppliers. This movement of money has “a measurable effect” on a state’s economy, according to the healthcare consumer group Families USA.

Department of Social Services spokeswoman Kristin Kellar said the agency complies fully with the Indian Child Welfare Act and does not take children to attract federal dollars. Removing a child from the home harms society economically, she said, no matter what “paltry amount of funding the federal government expends to support foster care.” She challenged NPR’s $100-million figure, saying the agency would like to see the numbers on which it is based.

Attorney Daniel Sheehan, general counsel of the Lakota People’s Law Project, an advocacy group, disputed the “paltry” characterization and noted the importance of federal funding to South Dakota. An analysis from the Tax Foundation, a nonpartisan research group, reveals that South Dakota is third in the nation for dependence on the federal government, with 45.6 percent of its total expenditures covered by the federal subsidies.
Tribal ICWA directors

Sheehan pointed to the state’s 2012 budget, which reveals that Washington’s share of South Dakota social services skews even higher, to about two-thirds of the total—$660 million in federal funding, out of the $1 billion in total state spending on all social services. That means Native foster children, who are more than half of all kids in care in the state, could be responsible for significant portions of several federal funding streams, according to Sheehan.

“They would bring the state chunks of the $30 million in federal money for child protective services; the $67 million for nutrition, health, and other economic assistance; the $37 million for behavioral health; and the $19 million for Department of Social Services administrative costs,” said Sheehan. “We could be looking at substantial federal funding captured by Native children once they are in the custody of a state that relies heavily on it.”

Orders from above

As the most recent South Dakota child-abuse case unfolded, top state officials appear to have been closely involved. While raiding Schwab’s premises and seizing computers and other items, DCI Agent Black told Schawb that his orders came from the highest echelons of state government.

“The attorney general himself has told me to work on this until I am done with it,” Black can be heard saying in an audiotape he made, which has now been turned over to the courts. “This is my priority case right now. Short of a homicide happening.”

Along the way, Taliaferro lost his job as deputy state’s attorney. His former boss told local media multiple times that the firing was done “with the support of the attorney general.”

The South Dakota attorney general’s office referred a request for a comment to the Department of Social Services.

The head of that agency was apparently directly involved as well. In a preliminary hearing for Taliaferro and Schwab’s case, the presiding judge interrupted Black’s testimony to ask him a question: “It just popped into my mind. How did you get the kids out of school?” Black responded that the social services department’s director had given permission.

Kellar said the social services agency “cannot comment on specific abuse and neglect cases, due to confidentiality reasons.”

Schwab and Taliaferro say they fear for their safety. Said Schwab: “Knowing Pierre [South Dakota’s capitol] is calling the shots on this is terrifying. We have no one to turn to.” Their trial is set for January 7, 2013.

State’s attorney Moore is also prosecuting the Taliaferro-Schwab case; he said he could not talk about a pending lawsuit, but that the case against the lawyer and child advocate would be made clear in court next month. In addition, Moore insisted that in the parents’ case, the only abuse charge against them that stuck—the single count of rape—is the one that should have.

Moore conceded that Black and his fellow officers were “unprofessional” during the break in questioning. However, Moore said, they had behaved differently during the questioning itself: “The interviews weren’t in any way consistent with what was on camera. If you’ve been around law enforcement, you know they swear a lot, they make statements they may regret.” Moore also said that children who are being questioned do not need to be accompanied by an attorney or guardian when they are witnesses, not defendants.

O.J. Semans, the former chief public defender for the Rosebud Sioux Tribe, took a different view. “Ordinarily, children are interviewed alone when there’s an indication that they were victims of a family member who should not know of the interview. If the interview is to determine whether the children provided false statements, which is a crime, they should have representation.”

Semans went on to say, “And, by the way, any law enforcement officer knows the difference between an interrogation, with tough questioning in an intentionally stressful environment, and an interview, which elicits a narrative. Because children can be easily influenced, the latter more accurately reflects a child’s perception of a situation.”

Sara Rabern, spokeswoman for the Department of Criminal Investigation, said the agency could not comment on an ongoing prosecution. Neither the agency nor Black responded to requests for an interview with him; however, Black has testified that he made the recorded statements attributed to him here.

Bad outcomes rising

The recent tribal report described another disturbing trend. For the first decade of the 21st century, figures from the federal Administration for Children and Families show a fivefold increase in the percentage of Native foster children in South Dakota whom the system failed. During that period, the percentage of children who were transferred to correctional or mental health facilities, or who died or ran away, soared to 36 percent in 2010 from 6.9 percent in 1999. During the same period, reunifications with family dropped. The percentage of white children leaving under the same circumstances grew much more slowly during those years, from 6.3 percent to 11.4 percent; and the share reunified with their families increased. The tribal report concluded, “Native American foster children are becoming an increasingly important attractor of federal corrections dollars to South Dakota.”

“Our Native children feed the system. They always have,” said LaMere, a member of the Winnebago Tribe of Nebraska. He added that tribes share responsibility for the exodus of Native children into care. “Many of our tribal leaders have been lax in protecting our greatest resource—our children.”

The tribal child-welfare officials’ report also confirmed that last year almost all Indian children in state foster care were in non-Native homes and white-run group facilities. That’s despite the availability of Native foster homes, some of which sit empty on reservations, and kinship placements, the directors said.

The Indian Child Welfare Act encourages kinship care, which involves placing children who have been neglected or abused at home with relatives. Tribes favor it, because it preserves the children’s culture and maintains the community. “In our families, there’s always room for one more,” said Terry Yellow Fat, ICWA director for the Standing Rock Sioux Tribe, which straddles South and North Dakota. He is co-chair of the committee of ICWA directors that produced the tribal report.

But tribal members have testified at a 2005 hearing before state lawmakers that social workers for the state routinely rebuffed them when they offered to house young relatives who were being taken into care. One Native American woman asked why she was never considered as a candidate to care for her sister’s children.

Another, whose family had not been allowed to keep a cousin’s children, said the state Department of Social Services, which manages this process, was overwhelming to parents, who generally did not understand the often-changing requirements in child-care plans. A DSS representative at the hearing said that these decisions are made, sometimes quickly, to ensure the safety of the child.

Disappearing into the system

Congress passed Indian Child Welfare Act in 1978 to stop the massive removals of Indian children that had taken place over the preceding century, first to notoriously violent boarding schools, then to foster care and adoption in white homes and group settings. During the mid-20th century, as many as 35 percent of Native children were taken from tribes nationwide under federal-, state- and church-run programs, according to testimony Congress gathered while considering the legislation. Sheehan called this “the intentional disassembling of Native American communities through the seizure of their children.”

In South Dakota, Native children are often taken for “neglect,” according to Yellow Fat. “The prevailing attitude on the part of the state is that poverty is a crime,” he said.

“A federal law is being flouted—and frankly, it’s happening in courts all over our state,” said Diane Garreau, ICWA director for the Cheyenne River Sioux Tribe, in South Dakota, and a member of the committee that wrote the report.

The result can be devastating for parents and children, according to attorney Brett Lee Shelton. “Frequently, the kids have already undergone a lot of trauma. Then, when things they don’t understand happen to them, it only adds to their pain,” said Shelton, a member of the Oglala Sioux, another South Dakota tribe, and principal of the Colorado law firm Smith Shelton Ragona.

When tribal youngsters are being removed, time is of the essence, according to Garreau: “If we are not watching, if we don’t start hustling as soon as we hear there’s a problem, if we don’t fight for every single child, they’re lost to us forever. Can you imagine how frightened they must be?”

LaMere charged that the Indian children’s terrifying odyssey through the foster care system as it unfolded in the most recent South Dakota abuse case is not an anomaly. “As outrageous as it is, it is the sad reality for Native children in South Dakota and around the country,” said LaMere. “That father will walk free long before these Indian kids begin to think about recovery.”

Text and photograph of LaMere c. Stephanie Woodard; other images courtesy Lakota People’s Law Project.

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