S. Dakota Indian Foster Care 5: Who Is To Blame For Native Children In White Homes?

Allegation: Indian foster children are put in white homes at extraordinarily high rates, reflecting systematic cultural bias and violating the federal Indian Child Welfare Act.

"Kill the Indian in him and save the man," said Capt. Richard Henry Pratt, the 19^th century founder of the Carlisle Indian Industrial School. It was a prescription that became a model for Indian boarding schools that often coerced attendance and forced Indian children to change their language, dress and manners.

The schools thrived across the country well into the 20^th century and reached their height in the 1960s, when the civil rights movement turned on them. Few of the schools are left today.

But the memory of what was effectively a cultural extermination campaign by some — not all — schools and officials remains strong, especially among Native Americans. It is this memory that surfaces in the NPR series about South Dakota today. As host Melissa Block opens: "It's happening again. This time, it's foster care."

This charge of culturally-driven abuse is tied especially to what happens to the children after they are taken by court order from their families. The overwhelming number — nine out of ten, reports Laura Sullivan — are put in non-Native homes. In South Dakota, this almost invariably means white ones.

The 1978 Indian Child Welfare Act (ICWA), sponsored by South Dakota's own then-senator, James Abourezk, was designed to prevent just that. The law, known as ICWA, calls for placing Indian foster children in the homes of relatives or tribal members as much as possible.

The reasons why the law's goals are not being met in South Dakota and most other states add up to a story that demands to be done. But not the way the NPR investigative team did it. They focused on only one alleged culprit — the state — but offered no proof to back the charge that the state was acting out of cultural bias or racism. A needed look at a difficult issue was failed by errors and crucial missing context.

Among the most serious omissions that make it look like all blame lies with the state are:

Let's look at what, at first reading, seems to be a compelling presentation by the investigative team. After Block's opening summary and reference to the sad history, Sullivan leads off with anecdotal interviews with the series of grandmothers. She then gives eye-opening statistics that supposedly show that the abuse is widespread:

SULLIVAN: These families want their grandsons and granddaughters, nieces, nephews, their children. And federal law says they should have them. Poverty, crime and alcoholism are real problems in South Dakota's poorest areas. Still, federal law says that except in the rarest cases, Indian kids must be placed with relatives, tribal members or at the very least, other Native Americans. But in South Dakota, that's not happening.

An NPR investigation has found that every year, the state is removing roughly 700 Indian children, some in questionable circumstances. At the same time, they have largely failed to place them with family or their tribes. In South Dakota, nine out of 10 Native kids in foster care are in non-Native homes or group care, according to state records.

This "nine out of 10" statistic is backed by a supporting interview with a tribal leader:

LENGKEEK: It enrages me. Cousins are disappearing, and family members are disappearing. We're very tight-knit families here. This breaks my heart.

SULLIVAN: Peter Lengkeek is a Crow Creek tribal council member. This tribe has lost more than 33 children in recent years, an astounding number for a reservation which only has 1,400 people. Every one was placed in a white foster home.

Sullivan returns to the unifying narrative arc of grandmother Janice Howe and the moving story of her Yellow Robe family:

SULLIVAN: Some tribes have agreements with the state; Crow Creek doesn't. But the state has never been challenged in court about this. So Janice Howe was stuck in a strange but common legal limbo.

Howe lives on a reservation; state courts don't apply to her. But especially on poor reservations, tribal courts can be overrun, underfunded, operated part-time by a revolving door of judges who rubber-stamp social service requests. 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.

HOWE: I have written letters to Virgena Wieseler, asking questions. I wrote letters to the governor.

SULLIVAN: How did the Department of Social Services respond to this?

HOWE: They didn't.

The Howe story then serves to further the placement abuse thesis by introducing the local representative from the federal Bureau of Indian Affairs responsible for monitoring ICWA:

VALANDRA: The state does have Native American foster homes. So yeah, it's working.

SULLIVAN: 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. So I asked him...

Do you feel like maybe these children have been let down a little bit?

VALANDRA: Of my cases, I think they're all, right now - how do I want to - the placement of the children right now are - are - boy, that's...

SULLIVAN: With Valandra, a dead end, Janice Howe asked to have the kids moved to a Native home. She wanted them to go to sweats and sundance, but nothing changed. Social Services' Virgena Wieseler says they would like all Native kids to be in Native homes, but they've only got a few and they don't have room.

WIESELER: And we're always trying to recruit them because we need more. We are constantly recruiting in all of our offices, for all kinds of foster families.

Now comes an anecdote disavowing what Wieseler says and showing what appears to be the state's bias against Native Americans, aka racism, by technical definition:

SULLIVAN: That comes as a surprise to Marcella Dion. She's Native, and she's a licensed foster-care provider. She has lots of room.

MARCELLA DION: I was like, whoa, what's going on? I got my ICWA license, no kids.

SULLIVAN: Dion's home has been empty for six years. Then there's Suzie Crow, also from Crow Creek.

SUZANNE CROW: I've been a foster parent here over a year. They've never called me for a kid.

SULLIVAN: In that year, more than 600 Native children in South Dakota were placed in white foster homes. The Pine Ridge Reservation says they've got 20 empty homes. A few months ago, Suzie Crow asked a social worker why she hadn't gotten any kids.

CROW: He said, well, there's a long process, this and that. I said, no. I said, the long process is there's no road from you to Indian people. That's the long process.

Sullivan returns to the powerful Howe narrative:

SULLIVAN: The long process for Janice Howe and her daughter was waiting months just to see the kids. She missed braiding their long hair. They follow tradition that you don't cut hair unless there's a death in the family. When they were finally granted a visit in January of 2009...

HOWE: I started crying. Their hair was cut to their shoulders.

SULLIVAN: The girls looked so thin. They begged Howe and their mother to take them home.

HOWE: I didn't want to cry in front of them because I knew that they were already upset. I just said: You know what? Pray hard, OK? Pray. Look outside because I'm looking at the same sky. OK? OK, Grandma, they said. And they left......

SULLIVAN: It had been a year and a half, and Janice Howe's grandchildren were still in foster care. Howe made one, last desperate move. She went to her tribe's council meeting. She told the whole story - how they came one day and took the kids, how her daughter had never been charged with anything, how a social worker had told her they were now putting them 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 really thought it would work. But a few weeks later, a car pulled up with Rashauna, Antoinette and the two twins - no longer babies, but 2-and-a-half-year-olds.

To open Part Two of the series, host Michele Norris adds to the overall allegation:

There's a federal law that says Native American children who are removed from their homes should be placed with their relatives or tribes. The idea is to stay close to their culture. But this week, an NPR News investigation finds that in South Dakota's foster care system, that's not happening. Hundreds of Native children are placed instead in private group homes. The homes get paid millions of dollars to care for the kids.

Part Two ends evocatively, bringing back the historical memories and making sweeping claims on behalf of a child:

SULLIVAN: On Children's Home's campus, kids walk through the hallways to get to their next class. This place has won many state accolades for its work with these kids. But none of that means much to Suzy Crow or her granddaughter, Brianna.

SUZY CROW: She was over there most of three years.

SULLIVAN: Suzy Crow was taken from her family and forced into boarding school - like thousands of other Native American children over the past century.

CROW: Every night, me and my sister would meet at her bed and would say, let's run away tomorrow - just to comfort ourselves that we're still there. This foster system reminds me of that.

SULLIVAN: Crow didn't want Brianna to grow up like she did, not knowing who she was or where she belonged. It took a court order for the state to finally send Brianna home.

CROW: I didn't care what it took. I battled with them.

SULLIVAN: State records show South Dakota paid Children's Home almost $50,000 over three years, to care for Brianna. And all across the state, grandmothers, aunts and uncles, family and tribal members would have cared for Brianna - and hundreds of other Native American children like her - for free; close to their tribes and culture, like federal law intended.

Laura Sullivan, NPR News.

And in Part Three, Sullivan expands on the central theme that the ICWA law is not being observed:

SULLIVAN: The Indian Child Welfare Act says that except in the rarest cases, native children who have to be removed from their homes must be placed with relatives, their tribes, or other Native Americans. Yet 32 states are failing in some way, to abide by this law, according to a 2005 government audit.

And so the series lays out its case incriminating the state for culturally-driven abuse in the placement of Indian foster children. Says the Web headline flatly: "Incentives and Cultural Bias Fuel Foster System." The storytelling is virtuoso.

If only it would have been less certain and more exploratory.

To be sure, the state has some responsibility for not putting Indian children in more Native foster homes. I am not willing to put my hand in fire and say that no bias is at work. I do not know. But what I do know is that the proof offered by the series for the motive doesn't hold up upon inspection.

Let's flush out how the series makes two basic factual errors and lacks fundamentally crucial context in three areas.

Error #1: The licensing of Suzanne Crow and Marcela Dion

Interviewing grandmother Marcella Dion, Sullivan on-air called her a "licensed foster care provider" whose foster home "has been empty for six years." Sullivan also interviewed another grandmother, Suzanne Crow, who was allowed to say on-air that she, too, had been licensed a year earlier and had yet to be assigned a child. Sullivan further reported that the tribe of the two women, the Crow Creek Sioux, claimed to have 20 empty foster homes. All this is offered as examples of how the state disregards tribal homes in favor of white or non-Native homes.

What Sullivan did not report was that the two women and the other members of the Crow Creek tribe did not have the correct licenses to receive foster children.

The women had tribal licenses, which are sufficient only if the tribe has signed an agreement with the state. This is a federal requirement — not a devious state one. The Crow Creek Sioux had a licensing agreement from 1995 to June 2009, but the tribe chose not to renew the agreement in 2010 and 2011 precisely in order to limit state authority on the reservation. Indeed, the grandmother whose story is the narrative backbone of Part One, Janice Howe, also lives on the Crow Creek reservation and Sullivan reports on-air in reference to her: "Some tribes have agreements with the state; Crow Creek doesn't." Then, however, she adds: "But the state has never been challenged in court about this."

Whether the state has been challenged or not in court is so pregnant with implications that to drop that bomb without any further explanation is wrong to do. Why hasn't the state been challenged, for example? Is the reporter suggesting that some conspiracy is afoot? Is there really a valid legal case? Says who? The reporter?

The licensing issue is no trivial, bureaucratic matter. Imagine the public furor if something bad happened to a foster child and it was discovered that social workers knew the foster parent was improperly licensed.

Legal niceties aside, a separate interview with Suzanne Crow by Michel Martin on Tell Me More (aired on the same day as Part One of the series) is instructive on the fundamental nuances that the investigative series missed. Martin makes reference to a second appearance by Crow in the investigative series. The appearance is in Part Two and is about Crow's own grandchild, who was in a group home. As you read Martin's interview, imagine that you are a judge or a social worker and have to decide whether to assign foster children to Crow. The excerpt starts with Martin referring to Crow's grandchildren:

MARTIN: They're a boy and a girl. They're both under 18. Now as I understand it, they didn't come back to either your daughter Lena or to you.

CROW: No. My daughter, they took her parental rights away first, and then I filed a petition for adoption. And when it came time to decide about the adoption, their stepdad filed a petition for adoption, too.

MARTIN: Are they with him now?

CROW: Yeah, they're with him. He's married to a non-Indian woman, and I think she had a big part in the decision.

MARTIN: Well, as we mentioned, and according to this NPR News investigation, the story of your losing your grandchildren is not unique. I wanted to ask, in your circle of friends, neighbors, acquaintances, how common is it to have an experience of children being taken away?

CROW: It's real common. It's almost the same as back in the day when they took all the Indian kids and put us all in boarding school.

MARTIN: What was the reason why your grandchildren were taken away from your daughter?

CROW: She said she left them with her cousin and she was supposed to move out of her house that day, so she went to get a van and she didn't come back for a long time and that her cousin just walked away from the kids.

MARTIN: Well, I think you would agree that was a dangerous situation, wouldn't you?

CROW: Yes.

MARTIN: So what do you think should have happened in that case?

CROW: Well, what should have happened is somebody - I think there was two college students that lived in the duplex with her and they supposedly called the police. And I lived across the street. But at the time, I was on the reservation doing some business. So, my grandkids told the police our grandma lives over there if you could wait for her. But by the time I got the phone call, they'd already been there about two hours.

But when I got there, I went to the police. I went to the - they call it the children's inn to tell them I'm their grandmother, I'm home, I can take them, but nobody would give them to me.

MARTIN: Now, the state of South Dakota makes the argument that it has the responsibility to make sure children are obviously safe. I'm sure you would agree with that. And as we understand it, just from NPR's reporting in this case, there was the allegation that the children had been left outside unattended for some time. There was a concern that your daughter was also abusing alcohol. But it is your view that you, as the grandparent, and you were capable of taking them, that you should have been the first choice?

CROW: Yes.

MARTIN: There are those who would listen to our conversation and would say, and forgive me, I'm not judging you and I'm not judging your daughter, but there are those who would say if your daughter did have an alcohol problem and if she did leave the children unattended and if she did leave them with people who were no longer willing to care for them, what should the state have done? Your response would be?

CROW: If my daughter wasn't capable, then they should have handed them over to me instead of dragging them through all that torment before I could get them. And another thing that I don't agree with is the state of South Dakota, they're thinking about putting Indian kids where it's safe is not the same as mine.

MARTIN: Could you talk more about that?

CROW: Well, I don't think that, like, when they came to inspect my home before when I - after I filed the petition for adoption, I did everything. I went to foster parenting classes. They did that background check on me. They came and checked my home and everything was good. But in the beginning when they say that they want the Native American kids to be safe, that's not necessarily what they really mean. That's just an excuse to keep them longer in the system.

The excruciating difficulties and trade-offs of the entire foster care issue come out in the Martin interview in a way that never happens in the investigative series. Navigating among what is best for the child, the family and tribal culture is treacherous. In this particular case, Crow may very well have been a good adoptive parent for her grandchildren, or could have become a good foster parent for other Indian children. We all have made mistakes in our pasts. That she went so far as to take the classes would seem to speak well for her. I do not know — and cannot know because individual case files are not public — whether the state considers her worthy to be a foster parent now, or why the judge decided to give adoption to the stepfather instead of to her. There may have been other information that did not come out in the interview. But what is clear from a journalistic perspective is that Crow's experience is not a clear-cut example of state abuse. If she is to be used, then all the compromising details about her have to be reported, too.

Error #2: The number of Crow Creek children put in white foster homes

The Crow Creek tribal leader interviewed on-air is Peter Lengkeek, but it is Sullivan herself who reports that of the 33 tribal children taken from their families over recent years, "everyone was placed in a white foster home."

This is wrong. The state disputed the claim, and Lengkeek himself told ombudsman researcher Lori Grisham that the state is correct. Lengkeek said that in his interview with Sullivan, he was not referring to the tribe but to a particular family, the Yellow Robes. This is the family of grandmother Janice Howe. A mistake like this can happen, though Sullivan, who was informed months ago by me of the mistake, has yet to correct it.

According to both Lengkeek and the state, the correct statistic is that 15 of the 33 children taken from the Crow Creek tribe were placed in Native care. From the point of view of wanting to put Native children in Native homes, this is in fact a much better ratio than the overall one for the state.

It is relevant, meanwhile, to look at the breakdown by Lengkeek and the state of where the Crow Creek children go. I do not know if the tribe is an exception among the state's nine tribes, but Crow Creek's central role in the series is underlined by how it is the source of most of the anecdotes supporting the allegations of state abuse. The breakdown paints a far more diverse picture of where the tribe's children are actually placed than the one we are given by the series.

As you can see in Chart 5.1, the diversity in the placements suggests, moreover, that some criterion is being used by the state in putting different children into different foster arrangements. It might even mean that social workers try to find the right match for a child taken from his family. Such care would not be unusual for people who go into their line of work because of a calling to help people in need, particularly children. This, in fact, is what Malsam-Rysdon claims. She said that social workers are trained to proceed up a "decision tree" of options that begins with looking for family members and then balances the perceived needs of the child with the available alternatives. Certainly, an investigative series on placement abuse by state social workers that does not even mention what their placement criteria might be is derelict. Here is the Crow Creek breakdown:

5.1: Foster And Related Children From Crow Creek Tribe

Source: Governor's Office of South Dakota, Sent to Peter Lengkeek in 2011

Note, too, that 29 of the 33 children were removed from their families and sent elsewhere by the Crow Creek tribe's own Crow Creek judges in a Crow Creek court — and not by state courts. This takes us to the first piece of critically missing context.

Missing context #1: The placement rulings made by the tribes' own courts

The state readily agrees that the overwhelming number of Indian foster children end up in white homes. The placement statistics for South Dakota and other states are well known among foster care and Native American workers, advocates, officials, scholars — and, of course, among Native Americans themselves.

The state, however, did contend in its first protests after the series aired that it was a minor exaggeration to say that "nine out of ten" Native children were put in white homes. Kim Malsam-Rysdon, head of the Department of Social Services (DSS), told me that the proportion was 83 percent, which rounds down to eight out of ten. But what I learned after querying both sides is that each is right on this detail.

The state is citing the FY12 proportion, while the series was rounding up from 87 percent in FY10. Citing an FY10 number is consistent with most statistics used in the series. The misunderstanding, however, reflects another of the shortcomings in the series. We in the audience are not given a year for almost any number in the entire report. This is perhaps understandable on-air; it is not online. The confusion was avoidable. Ideally, to add authority, a chart on this central statistic could have been presented in the Web version that shows the fluctuating placement share over time.

Still, whether the proportion of Indian children placed in white homes is 83 percent or 87 percent is of marginal importance: each number is extraordinarily high. The real problem is that neither number supports the prima facie case of state cultural bias that the statistic suggests and the series alleges.

The white placement numbers are pumped up by lumping decisions by tribal courts with those of state courts. This is a violation of NPR's standards on fairness and accuracy. Tribal courts are largely sovereign and are not "the state." The actions of tribal courts, moreover, offer valuable context for just what it is the placement numbers mean and whether they support the broad argument of cultural bias.

Each of the nine tribes in South Dakota has its own tribal court. I asked Malsam-Rysdon for a breakdown of the decisions by them and state courts. On December 31, 2011 (shortly after the series aired), fully 41 percent of the foster and related Native cases were being overseen by tribal courts, she reported back. This alone significantly reduces the number of children that the series says "the state" puts in white-run homes and institutions. According to Malsam-Rysdon, only about half of the foster and related care cases of Native American children — 54 percent — were cases being overseen at that time by South Dakota state courts and were subject to ICWA. Another four percent were in state courts but not subject, usually because the children were not eligible for tribal membership, as defined by the tribes, she said. While these figures were for the end of 2011, Malsam-Rysdon said that a similar pattern prevailed when NPR's reporting was done earlier in that year. Here is her breakdown:

5.2: ICWA Cases As Of December 31, 2011

Source: South Dakota Department of Social Services

Additionally — and this is critical to the validity of the series — the tribal courts place Indian children in white foster families or group centers at similar or even higher rates than state courts. On June 30, 2011, for example, the tribal court rate was slightly higher, as shown in this DSS chart provided at my request:

5.3: Native American Children Placed In A Foster Care Setting As Of June 30, 2011

Source: South Dakota Department of Social Services

The tribes' own courts, in other words, find it necessary or desirable to put their own children into white foster families and institutions at the same jaw-dropping rates as cited by NPR. Why? An investigation of Native American foster care clearly has to address this question. The series doesn't reveal the record of tribal courts, and so it fails to ask the question.

The tribal courts also are much slower than state courts in reunifying foster children with their original Indian families. Reunification — or, alternatively, adoption — is the third important piece in the foster process, after removal and placement. Malsam-Rysdon gave me the following data on reunification by state and tribal courts:

5.4: Reunification By State And Tribal Court Data For CY2011

Source: South Dakota Department of Social Services

Does this mean that state judges and social workers are more sensitive to keeping Indian families intact than are Native American judges from the tribes themselves? I don't know. Malsam-Rysdon said that one reason for the reunification difference is that state courts have greater resources through the state Department of Social Services to work with families and their children. Four of the nine tribes use their own social workers. All this seems to say something positive about state courts and the DSS — about "the state," in other words — and it doesn't easily square with the idea of racial exploitation, cultural bias or similar abuse. Leaving out this side of the story — leaving out the comparative insights on placement and reunification — is a serious shortcoming that leaves a heavily one-sided result in the series.

Indeed, the central, heart-wrenching case of Janet Howe and her four grandchildren was under the jurisdiction of a tribal judge. Yet, little is made of this even though the Howe case is the unifying narrative in making the many allegations about abuses by the state. Sullivan notes on-air that "state courts don't apply to Howe" but calls this a "strange but common limbo," without any explanation.

I am not sure what legal limbo she is referring to. There is no limbo related to the jurisdiction of the tribal court here. That Howe didn't know how to get a hearing, as Sullivan reports, may be true and is worth reporting. She also reports that Howe gets an infuriating bureaucratic run-around from state and federal officials. This, too, rings true. In the end, Sullivan reports that Howe complains to the tribal council, which passes a resolution "warning the state that if it did not return the Yellow Robe children, it would be charged with kidnapping and prosecuted."

But all this ignores the central fact that final jurisdiction in the case lies not with the state Department of Social Services but with the Crow Creek's own judges. Sullivan does not report whether the tribal council complained to the tribal court in the Howe case. Political and cultural ideological divisions are common on many reservations, including between tribal judges and councils. But I have no idea if that is the case here. As a member of the audience, I would have liked to have known, however, and the story should have told us.

Sullivan declined to answer questions about the tribal judges. She says in the lone on-air reference to them, in relation to Howe, that they "rubber-stamp" DSS service requests. This would seem to dismiss them as being manipulated. Yet, the four reservations with their own social workers have little or no involvement with DSS, so little or no manipulation is possible. In two of these four, the Oglala Sioux and Sisseton Wahpeton Oyate, the agreements between the tribes and the state are such that DSS does not get involved in child cases there at all. The Oglala Sioux reservation is Pine Ridge and is the state's largest. On the Standing Rock Sioux and Flandreau Santee Sioux reservations, DSS only gets involved in child neglect or foster care cases if called in first by the tribe, which Malsam-Rysdon said happens only in rare special cases.

The tribal courts and social workers on these four reservations put children in white homes off the reservation, just as the state courts do. Tribal social workers do appear to be less likely to take children from their families in the first place, according to Native American advocates. But that is another matter. It, too, also should have been explored but wasn't, as discussed in Chapter 2.

Additionally, the series offered no proof for the extent that tribal judges might be pliable on the other five reservations. Among these is Crow Creek. Some Native American advocates say that the manipulation takes place when state social workers tell a tribal judge that the child will lose federal/state funding support (called Title IV-E) if he or she is not put into a state-licensed foster home. But this is the same federal requirement that I mention above; it hardly seems to qualify as manipulation by the state. Some advocates say as well that required training lasts three to six months, a major barrier. Malsam-Rysdon told me that that the training takes 30 hours and is most often completed in a 10 week course. She said that it is done in less time for relatives taking in a foster child. Critically, the training is a federal requirement, not a state one, she said.

I have no doubt that tribal judges mostly follow the recommendation from DSS or tribal social workers. Malsam-Rysdon also notes that some of the tribal courts are more active and better staffed than others. But as an example of assertiveness by at least some tribal judges, many of them actively seek to take over the cases of their tribal members who live off the reservation, too. ICWA gives the tribal judges this power.

The law further requires the state to inform the tribal courts of all cases involving its members, precisely so that the tribal judges can step in. In FY11, as an example, the cases for 235 Native-American children that had originated in state courts were transferred to tribal courts at the request of the latter, Malsam-Rysdon said. The tribal courts, in other words, do indeed have considerable power and some of them exercise it, taking cases away from the state courts. But again, none of this is reported in the series.

Tribal judges, moreover, as well as the tribal police who work alongside the social workers in recommending and carrying out removals, personally know many of the families on the reservations and their circumstances. This is according to many accounts and to my own limited experience reporting a story years ago on a reservation in Maine. According to South Dakota's Department of Tribal Relations, the largest South Dakota tribe by population, Oglala Sioux, has 38,000 people. The smallest, Flandreau, has just 726. Almost all the families in each tribe go back many generations and are intertwined.

At the same time, the political infighting on many reservations that sometimes pits tribal courts versus tribal councils results in a high turnover of judges on some reservations. I will return to this issue of the role of tribal politics and competing cultural ideologies in Chapter 6.

I do not pretend to be an expert on tribal courts in South Dakota. But the foregoing shows that it was highly misleading to lump the decisions of these courts in with those of the state. Lost, as a result, were crucial insights on state cultural bias. The "nine of out ten" number, it turns out, is a poor indicator and highly misleading.

The investigation, in other words, should have wrestled with the critical role of the tribal courts, the comparison between them and state courts, the pressures on them within the tribes, the relationship between them and the state Department of Social Services and the differences among the reservations. The series did almost none of this. More generally, it also did not mention the federally required training and licensing for family and tribal members.

Missing context #2: Looking at more than just foster care, state and tribal courts place Indian children in Native homes as much as white ones, while the state helps support many more Indian children living with kin receiving welfare aid

This piece of crucially missing context steps back from focusing on foster children alone to include a larger child custody universe in which the aims of protecting Indian culture and families is in fact accomplished—and with state aid.

In FY10, the year measured in the series, and for the two fiscal years since then, a monthly average of some 4,000 Indian children were no longer living with either of their parents but with kin receiving financial support under TANF. This is the federal government's main family welfare program, but is administered by the state. See Charts 5.5 and 5.6. Still more Indian children live with relatives whose income is above eligibility levels, but we don't have a measure for them. The 4,000 alone is a large number in a state in which the 18-and-under population was 32,000 and the total Native population was just 79,000 in the 2010 census.

As almost all the children with kin have moved out of nuclear families that likely are in crisis for one reason or another, it seems safe to say that many Native American families in South Dakota are under great stress, as discussed in Chapter 2.

Of these nearly 4,000 children, meanwhile, a monthly average of some 300 were under state or tribal court custody. This means that they were placed in the homes of their relatives under a court order in consultation with DSS or tribal social workers. The social workers monitor, support and have legal responsibility for the extended family arrangements. These aren't purely voluntary arrangements, as the rest of the nearly 4,000 are.

5.5: Native And Non-Native Children In Kinship Families Receiving TANF Support, Under And Not Under State And Tribal Court Custody, FY10 and FY11

Source: South Dakota Department of Social Services

These 300 or so children are not formally in foster care, though for the purposes of investigating systematic state bias, they should be considered as if they were. These children are as equally under the custody of the courts and social workers as foster children are. The TANF relatives do not receive Title IV-E foster care stipends from DSS, but the TANF funding, which also comes through DSS, is virtually identical in amount for the first child taken in. Just like a foster family, the TANF families usually become eligible for the aid precisely because they are adding a child. The TANF support drops significantly for additional children, which is why, according to Malsam-Rysdon, DSS often recommends the TANF formula for individual children and foster care for sibling groups. Foster care aid grows constantly per child. A final reason to include the TANF relatives is that they are a privileged alternative. They need no license and undergo no training, as foster parents do.

The financial support levels and the requirements for both TANF and Title IV-E are set by the federal government, not by DSS. Eligibility under the two programs is part of the "decision tree" that social workers and the courts go through in deciding where to place a child, according to Malsam-Rysdon. Other factors include the availability of a kinship family, psychiatric needs or whether a child is particularly unruly, she said. Regimented group centers are often prescribed for the latter. I do not know if this so-called tree is just a sham, but most state and tribal judges surely are versed in the alternatives, too.

Sullivan declined to answer my questions as to why the decision-making process was not part of the story. Leaving it out was a double shame because it would seem that there are genuine potential issues in the weighing of alternatives to explore. Perhaps on a reservation, the TANF income that comes with one child is enough to take in siblings too. Or perhaps what social workers see as a child's socialization or psychiatric needs are growing pains or resentments that can be better resolved in the cultural cocoon of a tribe or extended family. But the pros and cons of these and other such specific case criteria—the real nitty gritty of social work and the whole foster care issue—are unmentioned or obliquely glossed over in the NPR series.

Just as we are deprived of the insights that tribal judges offer, we also are deprived of the ones that looking at tribal social workers might offer. Roughly 60 percent of the TANF family cases under court custody were handled by tribal social workers, and 40 percent by DSS ones, according to Malsam-Rysdon. The tribal workers are on four of the nine reservations. They operate under agreements with the state, so they, too, are part of the state's foster care "system," however judged. Still, I suspect that breaking them out would add critical nuance. It would be valuable to analyze, for example, how their recommendations to the courts on matters of neglect, income, socialization and psychiatric needs might differ from that of state social workers, and what the comparative outcomes of those recommendations over time might be.

What the series gave us instead were interviews with several grandmothers. Their statements carry weight, but unexplored are limited and one-sided. How are we—Native Americans and all Americans—to judge if these grandmothers are wise or uninformed? How are we to know if they are well-meaning but in the end do more harm than good for a child? And even if we all come to an agreement on what constitutes harm, how much must the harm be before we as a society—Native Americans and all Americans—have a right to intervene in an extended family? A fact-based series is supposed to help us all answer these difficult questions.

Meanwhile, the very fact that state and tribal judges are putting Indian children in the home of kin and other Native Americans cries to be reported and analyzed in a series that alleges cultural bias and abuse in court placements. Making the cry even louder is that the number of children being put by the courts in Native homes is roughly equal to the number being put in white foster homes. In FY10, for example, state and tribal courts put 388 Indian children in TANF kinship and Native foster homes, versus 402 in white foster homes. In FY11, the placements in Native homes actually outnumbered those in white homes, before reversing again in FY12. See Chart 5.6.

The difference more solidly favors white placements if you add in group centers, but no matter: the point here is that the number of children being put in Native homes by state and tribal courts — some 40 percent of them at the recommendation of DSS — is substantial by any measure and doesn't square easily with the placement thesis in the series. Some state officials and actions may indeed be biased or racist. I don't know. But in addition to having to prove it, fairness demands placing the white placements in the full context of all placements, especially considering that those in Native homes seem to contradict the allegations of widespread or systematic state abuse. The added irony is that these unreported Native placements are exactly what ICWA seeks.

Then there is the matter of proportion. How big, really, is the white foster home problem? Is a monthly average of 360 to 400 children in white homes a lot? The sense you get from the series is that if for some reason a Native family in South Dakota breaks down, odds are great that the children will end up in white foster care. But it turns out that this is not so. Over the last three years, a back-of-the-envelope comparison shows that the monthly average of 4,100 or so Indian children who left their parents and were living in Native homes receiving some sort of state aid outnumbered the 400 or so children in white foster homes by a factor of 10 or 11 to one. If you add in group centers, the proportion still runs between eight and nine to one. See Chart 5.6, which offers the clearest picture of what is happening in placements in South Dakota.

5.6: Placements Of Native American Children Under DSS Custody Or In Kinship Families Receiving TANF, FY10-12

Source: South Dakota Department of Social Services

I am sure that there are many ways to slice and dice these comparisons, but the indisputable fact remains that the number of Indian children living in the tribal and kinship homes far outstrips the number in white homes and institutions.

Is the number of Indian children in white homes and institutions still too high? Each of us will have our own opinion. But while it is obligatory for NPR to report the views of those who say it is — their argument is strong and legitimate — you can't do so fairly without giving this sense of proportion. That one out of every 10 state-supported Indian children living away from their parents is in a white foster home sounds very different from saying that nine out of every 10 Indian foster children are in white homes. Both proportions are correct and both should be reported to give a complete sense of context. The only number to make the air, however, was the one that seemed to support an allegation of government racism and abuse.

A final reporting note: I have to be fair to the reporters, too. They can't be expected to know everything. The numbers as presented in Chart 5.6 do not appear anywhere else to my knowledge. I myself didn't know about the TANF placements by the courts when I wrote the first draft of this report. I stumbled upon them in back and forths with state officials as I tried to better understand the placement decision tree. The state follows federal reporting requirements and does not record and compare numbers as I have. It took many more patient back and forths, corrections and refined definitions before I was able to complete what otherwise looks like a deceptively simple chart.

Should Sullivan and producer Amy Walters have come up with all these numbers in their own digging? Not necessarily. Some reporting discoveries are just luck. Also, the team planned to return to South Dakota to do more reporting to continue the series. Indeed, Sullivan has been doing just that. But I do think that it is fair to say that if you are going to make the allegations that were made in Part One of the series, then you have to go after the full context, including drilling down into the placement decision tree, which is central to the whole thesis of the series.

A final technical note on Chart 5.6: Exact comparisons are hard to make. Without doing a second manual count, the state says it doesn't know precisely how many Native foster children are in Native homes. Under federal reporting requirements, what the state records is how many of the foster homes have at least one Native parent. The number of foster children in Chart 5.6 is thus a low-end estimate based on the number of these homes. I say low-end because it assumes only one child per home; some homes may have more. A chart that would be a real Cadillac model would also break down how many of the Native foster parents are kin of the children. But asking for a hand count to get this level of detail was far more than I could ask for an ombudsman review. Remember: the comparative numbers are monthly averages, adding to the number of files to open and layers of complication to calculate.

Missing context #3: The shortage of Native American foster homes and ICWA's vague legal requirements

How many properly licensed Indian foster homes are actually available in South Dakota is another obviously relevant question that the series does not answer — or even ask. Rather, Sullivan repeatedly falls back on saying that the state "must" put the children in Native homes except in "the rarest" or "unusual" circumstances. This reporting formula unfairly oversimplifies a known reality.

Jill E. Tompkins, who when she was interviewed by editorial assistant Andrew Maddocks was director of the University of Colorado's American Indian Law Clinic, said that ICWA — and the entire foster care issue in states across the country — largely comes down to an availability question. Are there in fact a sufficient number of Native American foster homes in which to put children? The answer is simple: No. There is an "overwhelming" lack of them, Tompkins said. There were only seven Native foster homes in the entire state of Colorado, she said. South Dakota apparently does better. Malsam-Rysdon said that in July 2012, for example, the state had 62 foster homes with at least one Native American parent. The number hasn't changed much since then, she said.

Tompkins said that it is the state's responsibility to try to come into compliance with national law and enlist more Native homes. As an advisor to many states — not South Dakota — she said that most try to do so, but they run up against high costs and practical difficulties.

Traditional media and advertising to recruit foster parents is largely ineffective on reservations, she said. As a result, state social workers must visit families one-by-one to see if any are interested in the job. This is labor-intensive work that states say is expensive. It also results in few candidates, as some who might want to volunteer do not meet state or tribal standards, Tompkins said. The biggest hurdle, she said, is the requirement for criminal background checks. Any felony, including a long-ago DUI, is usually enough to disqualify someone, she said. And as we have seen, alcoholism and drug abuse are high on many South Dakota reservations. A modern secular trend adds further difficulties. The number of available non-Native and Native foster homes is declining in general across the country because there are fewer stay-at-home mothers and fewer two-parent households, Tompkins said.

To their credit, Sullivan and Walters do put the question about recruiting native foster homes to Wieseler, the head of Child Protection Services in DSS. Wieseler replies on-air, "And we're always trying to recruit them because we need more. We are constantly recruiting in all of our offices, for all kinds of foster families." But then Sullivan discredits Wieseler's statement by next saying on-air: "That comes as a surprise to Marcella Dion." The misleading and to some extent irrelevant interview with Dion and Crow follows. And that's that. The Dion and Crow stories leave an unmistakable conclusion of systematic cultural bias by the state against Native foster parents. There is no exploring of the inconvenient unavailability of properly licensed foster homes.

This is so even though ICWA is in fact vague about what states "must" do. The law says merely that the states must do all that they can to put Native children in Native homes "in the absence of good cause to the contrary." Guidelines issued by the U.S. Bureau of Indian Affairs don't go much further in defining what "good cause" might be. The guidelines say that states can put Indian children in non-Indian homes only if there is an "unavailability of suitable" Native families "after a diligent search has been completed." A "diligent search" and "good cause" are messy terms to define.

Malsam-Rysdon told me that the emerging federal court standard that DSS seeks to meet when recommending white placements is to show state and tribal judges that DSS made an "active effort" to first find a Native foster home. This is a higher bar than the "reasonable effort" that has been required by some courts, she said. In response to a question from me, she wrote: "We are actively working on recruiting more Native American foster homes, particularly in the Rapid City, Cheyenne River and Rosebud tribal areas. We have a contract just starting in Rosebud for tribal staff to help with recruitment and training of Native American foster families, and are in discussions with the Cheyenne River Sioux Tribe to partner in a similar way." Under the Rosebud contract, the state has funded the hiring by the tribe of two recruiters. The results so far remain meager, however, because of the same old difficulties in signing up families, Malsam-Rysdon said.

She said that some advocates and tribal members wrongly claim that DSS demands that a foster home have a separate bedroom for a foster child, which many potential Indian homes don't have. She said that this and rumored income requirements are untrue "myths" that foment criticisms of DSS or lead many potential parents to think that they are not eligible. It is standard, she said, that a family needs the foster funding to cover the extra costs of taking in a child. What is not acceptable, she said, is if the potential foster parents need the foster funding to support themselves, which would mean that there would not be enough left to feed and clothe the child.

Wieseler and Malsam-Rysdon, of course, have a self-interest in defending their department's record. The new recruiting may even have been in response to the NPR series. I don't know.

Victoria Wicks / SDPB

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SDPB

Whether South Dakota is violating ICWA is for a court to decide. None has, but a class action suit filed in March may lead to a first bite at the apple. The American Civil Liberties Union helped two of the tribes — Oglala and Rosebud — and three individuals to file a suit in a federal court against DSS, a state attorney and a county court, for allegedly ramrodding the removal of some Indian children from their families. The suit alleges that the families were not given sufficient time or opportunity to prove their ability to care for their child or question the state. The suit cites ICWA but is carefully limited to the processes in one state court, according to a published interview with the American Civil Liberties Union (ACLU) lawyer who prepared the suit. The named state officials, claiming a lack of evidence, have all filed motions for dismissal.

The U.S. Supreme Court, meanwhile, ruled in late June on a challenge to the constitutionality itself of ICWA, which I will discuss in Chapter 6.

What is sufficiently clear here is that the certainty with which Sullivan and the series talk about how, under ICWA, only the "rarest" of exceptions are allowed for non-Native placements, is unwarranted and unfair without some explanation of the legal vagaries and practical limits surrounding the law. As much as saying what the state "must" do — which itself is disputable — journalistic fairness requires equally addressing what it "can" do, given the obvious difficulties in finding anywhere near a sufficient number of Native foster homes.

This difficulty cuts to the core of the nation's foster care policy. Perhaps the policy pendulum should swing back more to defending the family and not the child, so that fewer foster homes are needed. Or perhaps the state should walk away from Native American child protection cases, leaving the tribes to deal alone with the matter, possibly with state funding. These questions involve profound legal and moral debates. But we in the NPR audience don't get to hear or read them in the investigative series. Indeed, as late as May 2013, in a report on the summit, Sullivan was still saying on-air:

"The Indian Child Welfare Act says if children have to be removed from their parents, they must be placed with relatives, tribal members or Native American foster homes, except in unusual circumstances. State records show nine out of 10 Native kids are placed in non-Native homes."

And that's it — technically accurate but lacking context and totally unfair on the whole placement conundrum.

In sum

Taken together, a detailed look at the two errors and the three areas of missing context present a lesson. They show how anecdotal storytelling, while compelling, can be misleading when the underlying reporting is weak. And the reporting on the alleged cultural bias and abuse by the state of South Dakota in the placement of Indian children in foster homes was very weak.

Download a PDF of the full report.

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