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Tue August 13, 2013

S. Dakota Indian Foster Care 6: Where It All Went Wrong — The Framing

Originally published on Mon August 19, 2013 10:20 am

How could the NPR series have gone so wrong? After all, many talented people with a rigorous dedication to truth worked on it.

I cannot see into their hearts, but nothing I found suggests that any were operating with a hidden agenda. Sure, the reporters sympathized with the Native American families they interviewed. Who wouldn't? But NPR and its reporters do stories every day in which they sympathize with people, including victims, on a human level and yet get the broader policy analysis and context right. Indeed, no other news organization does this better than NPR. And I say this as someone who is not part of the newsroom but who was worked for some of the best news organizations in the country.

No, what went wrong in this series was something else. It was the framing.

Somehow — I don't know how — the investigative team became convinced that the most appropriate and newsworthy lens through which to see the entire issue of Indian foster care in South Dakota was the Indian Child Welfare Act (ICWA). The temptation is understandable. Whatever doubts there may be about the details of state abuse, the state seems at first glance to be in massive violation of at least the spirit of the law, if not the letter. The best I can tell — the editors declined to speak on internal processes — the chain of command went along with that framing. Given how long it took me to deconstruct the story, I can easily understand how busy editors could become convinced. Those jaw-dropping numbers — the high disproportionality between Indian and white children taken from their families, and the overwhelming placement of the Indians in white homes — seem practically to make an open-and-shut case. The history of past racial abuse, cited by Melissa Block in opening the series, made that case all the more believable.

Once you bought into the ICWA narrative, and especially the broad legal interpretation of it in the story, everything else falls into place as part of the storytelling. The illogic of the financial incentive argument gets lost in semantics, but fits neatly as a motive for abuse under ICWA. The reported funding amount of "almost $100 million" was impressive. There was no reason for senior editors to question it.

The idea that the state Department of Social Services was engaged in wrongdoing seemed to be confirmed when the two top DSS officials cut off the reporters' access to the department and the governor refused to meet with them or with editors in Washington. But this also meant that the main sources to challenge the ICWA narrative weren't on the playing field.

The reporters and editors, in other words, had blinders on. The danger of framing a complicated social issue with a single narrative is that it becomes easy to lose sight of other, competing narratives and explanations. And this is what came to pass. A single-minded framing in the series on the violation of ICWA, a law that has the worthy goal of defending Native American culture, resulted in largely ignoring other state programs, the social context, competing laws, the actual availability of Native foster homes and the moral goal of protecting children.

Everyone will have an opinion as to how to balance the cultural needs of a child and a community, on the one hand, with the developmental needs and safety of that child, on the other. In this case, I think most Americans would like to do it all for the child, while still protecting Indian culture. My reading of the country and polls is that for most Americans, diversity and tolerance for all cultures have become foundational American values as much as democracy and the work ethic. Still, I think that even Native Americans agree that, in a choice between culture and child, the higher moral value is protecting the child.

Much, of course, will depend on the circumstances of any one situation. Ideally, a child is better protected staying in the family. Congress passed ICWA to prevent the boarding school abuses at the time. Whether the law is now outdated — or needed more than ever because of foster care — is certainly worth exploring journalistically. Regardless, my point here is that no matter where each of us draws the line of protection between child and culture, an investigative series that frames the foster care issue almost exclusively through the culture lens of ICWA is myopic, and — even for Native Americans — misses much of the rest of the moral picture when judging state actions.

Malsam-Rysdon is certain about what she feels must be the state's priority. "Protecting the child always comes first," she told me. Or as Wieseler says on-air, "We come from a stance of safety. That's our over-arching goal with all children." At the very least, this is an honorable position. Yet, this view, and much of the issue of parental negligence tied to it, was effectively dismissed as largely irrelevant under the ICWA framing that the investigative team imposed on the story.

Their framing was so severe that the series did not even mention the hundreds of Indian children that state and tribal courts put in the homes of relatives under a separate federal welfare program, effectively serving the same purpose as foster care. These children, combined with the small number of foster children that the courts do put into tribal homes, roughly equal the number placed in white foster homes. This runs counter to the state abuse thesis of the story. Indeed, the number of Indian children in foster care is only a small percentage of the total number of Indian children who have moved out of their parental homes in what appears to be a crisis of Indian family breakdown in South Dakota. But because they are not in the formal foster care system, these children are outside an analysis focusing on violations of ICWA. The state gets no credit for achieving just what ICWA wants to achieve. One can argue that the foster care numbers are still too high, but without the broader context we in the audience get a skewed view of what is actually happening in South Dakota.

Similarly, the series minimized or ignored legal questions surrounding Native American sovereignty. These questions have vexed the United States since its founding. States across the country continue to be embroiled in ever-new legal disputes over Indian rights, from gambling to police matters. Issues of child custody and licensing of Indian foster homes in South Dakota and across the country are part of this great, gray legal morass. The confusion is predictable. The relations between tribe and state grow out of a Euro-American conquest done under the morality and logic of one historical era. Yet, we live today in a different time that elevates a moral logic based more on fairness and equality.

Malsam-Rysdon sent me a copy of an email that she sent to Sullivan after their short, ill-fated interview. In the email, Malsam-Rysdon quoted from state law, which cites federal law, and says that the state "shall take immediate, appropriate steps to secure the safety and well-being of the child or children involved." It adds: "When removing children from homes located on the reservations in South Dakota, tribal law enforcement is involved." Hence, state social workers can intervene on reservations but tribal police must accompany them when a child is being taken from a family. What the law doesn't allow, however, is for a tribe to reject a state social worker if it wants to. Tribal sovereignty, in other words, is limited.

It is out of this clash between child welfare laws and the goals of ICWA that the state government and most of the tribes in South Dakota have negotiated foster care agreements. But all this confusion becomes background noise and is largely ignored under the extreme ICWA framing of the series.

This framing also allowed Sullivan to reject the need to distinguish between the rulings of tribal courts and state ones. With that dismissal was lost the insights from the decisions made by Indian judges. Those insights, we saw in Chapter 5, contradict what was the investigative team's use of a high white placement statistic in effectively alleging racism by state officials and social workers.

We have discussed how ignoring the tribal judges is journalistically wrong. It may be legally mistaken, too, under an ICWA framing. The American Bar Association's Indian Child Welfare Act Handbook, by B.J. Jones, Mark Tilden and Kelly Gaines-Stoner, says of the law:

The beginning point for any analysis of the Indian Child Welfare Act in an understanding of what type of proceeding the act is intended to cover. The Act applies only to child custody proceedings in state courts. (My ital. p. 27, 2nd Edition).

And here is what the respected advocacy group, the National Indian Child Welfare Association, a source used in the series, says on its website:

ICWA does not apply to divorce proceedings, intra-family disputes, juvenile delinquency proceedings, or cases under tribal court jurisdiction.

I am not expert enough to take a position on the law, but clearly there is at least enough serious difference that if the tribal courts are to be lumped in with state ones on legal grounds, the story has to say why. It did not. Rather, its framing of its interpretation of ICWA was presented as a given.

Illustrating the imprudence of this stance are the arguments and divisions among honest people surrounding a Supreme Court ruling in June. The case concerned an infant with a miniscule amount of Cherokee blood — three-256ths — who the Latina mother had given to a South Carolina couple for adoption. Instead of any expected left-right divisions on the bench, questions raised by the justices and competing lawyers and child welfare groups reflected how so much of what surrounds ICWA is in fact socially delicate, legally contradictory and morally difficult.

One set of questions in the court's hearing — but not dealt with in the NPR series — revolved around race. Who is an Indian? Is it a cultural construct, or a blood one, and if the latter, what percentage blood is required? Each tribe has its own blood-based rules, but how far out do you go to be treated separately by state and national law? As Chief Justice John G. Roberts Jr., who is himself the father of two adopted children, asked, "Is it one drop of blood that triggers all these extraordinary rights?" The father in the case is three-128ths Indian.

Another set of questions revolved around racial and sexual discrimination. Whether the father had given up custody and abandoned the child was part of the dispute. But he sued and won in South Carolina on ICWA grounds. Lisa S. Blatt, the lawyer for the adoptive parents, told the court: "Your decision is going to apply to the next case and to an apartment in New York City where a tribal member impregnates someone who's African-American or Jewish or an Asian Indian."

"You are rendering these women second-class citizens with inferior rights to direct their reproductive rights and who raises their child," she said.

The court partly sidestepped ICWA by deciding on child custody grounds. It ruled 5-4 that ICWA didn't apply if the father didn't have custody, and so sent the case back to South Carolina to re-decide if he did. This was seen as a partial victory for the adoptive parents because ICWA didn't automatically rule out all other considerations, as the state supreme court had originally ruled — "with a heavy heart," the state court said. Writing for the majority, Justice Samuel Alito seemed to leave the door slightly ajar for further limiting ICWA when he wrote, "The Act would put certain vulnerable children at a great disadvantage solely because an ancestor — even a remote one — was an Indian."

In a dissenting opinion, Justice Sonia Sotomayor, countered that the court's ruling ran contrary to Congressional intent in ICWA to preserve "the familial bonds between Indian parents and their children and, more broadly, Indian tribes' relationships with the future citizens who are 'vital to [their] continued existence and integrity.' "

Each of us will have our own opinion as to which of the two arguments we accept. But the point here is that there are arguments. They are compelling ones that reflect the serious differences of opinion related to ICWA. It is not for the NPR reporters to decide, as they essentially did, that their strict ICWA interpretation trumped all.

The questions raised in the court case, moreover, are unlikely to go away as concepts of race are changing in America. Inter-marriage and personal preference are blurring racial boundaries as more people classify themselves as "other." More than 16 percent of Americans, myself included, are Latino, and almost all of us have a mix of indigenous, black and/or white blood. I myself have Colombian Indian blood through my maternal grandmother. I figure that I am one-16th Wayuu. The "one drop" rule that American society and laws have historically used to define non-whites is giving way to a mestizo concept from Mexico and many other Latin American countries in which racial purity matters less than education and income. At the same time, repeated studies show that the Millennial generation and what corporate marketers call the "New Mainstream" downplay differences of race, ethnicity, gender and sexual orientation in favor of education and income, too.

Make no mistake: race still matters in America. But nowhere is the changing zeitgeist captured better than on NPR itself, in radio reports and a superb cutting-edge blog, Code Switch. It is being produced by a new team of mostly young reporters who focus precisely on what they call the "frontiers of race, culture and ethnicity."

None of this is to denigrate the value of protecting traditional Native American culture. The South Dakota investigative series was correct to emphasize that its protection is important to Native Americans, and thus to all of us, in deciding the placement of Indian foster children. State officials, too, readily agreed in their interviews with me. In addition to respect for Indian history, and its unique place in American culture, there is a practical consideration. An emphasis on traditional rituals and values is seen by many tribal leaders, advocates and social workers as a means to rebuild a sense of identity, pride and self-improvement to combat the grinding ills — the alcoholism, drugs, gangs, teenage suicides, youth pregnancy and sense of defeat — that plague some reservations, though by no means all.

But Native Americans are no different from other racial, ethnic or religious groups in being divided themselves about where to draw the larger conceptual line between emphasizing tradition and encouraging any of a number of concepts of modernity. Among some White Anglo-Saxon Protestants, for example, the fight is over home schooling, or religious fundamentalism. Among Native Americans, the choice in its starkest terms is whether to emphasize reservations as museums of nostalgia or prepare members to cope in the evolving globalized world around us. After all, many, many Native Americans — off and on the reservation, and of different blood levels — are role models of success in mainstream America. Some are decorated military veterans, and I am willing to venture that almost all see themselves as proud Americans. While many take pride in some tribal cultural customs, few are guided exclusively by them. This, too, is no different from most racial and ethnic groups in America.

The narrow-minded ICWA framing in the NPR series meant that none of these nuances surfaced. The short but emotive Part Three, for example, interviewed adult Indians who had been in white foster care as children. As host Ari Shapiro told it, "even in the best circumstances, the loss of culture and identity can leave a deep hole." This is surely true and valuable to report. The rest of us in the NPR audience want to know more about what is happening to our fellow Americans who are native to this land. But then, many children torn from their families and put into foster homes suffer from issues of identity, regardless of their ethnic background. Read, for example, Janet Fitch's gripping novel, White Oleander. It is about a teenage white girl traveling through the California foster care system. For Indian children in foster care, where are the impact lines between loss of culture and loss of the right kind of family support? We — Native and non-Native Americans — deserved to hear more about this.

What certainly would have seemed to fall in the sweet spot of the series, meanwhile, was overlooked. I am referring to attempts by the state and the tribes to improve relations in dealing with foster care. No examination of them happened in the series, except for online links to two past state commission reports. This was a shame. The 2004 Governor's Commission on ICWA was a group of 29 people representing DSS, the nine Indian tribes, and various government agencies. The mutually agreed report outlined bridge-building steps to improve collaboration. The report put most of the onus on the state, as the senior partner, a responsibility that the state accepted. A year later, a follow-up report was issued that said many of the steps had been met. But this time there was a wide division of opinion among the tribes themselves, some agreeing with the state and some not. This division is never reflected in the NPR series, a disservice once again to the complexity within Indian communities and to the state, too.

What we got instead was a story in May on the summit meeting that the Web headline called "historic," even though the state did not participate and no major independent news site in South Dakota that I could find called it that. But given that the summit was mostly organized by advocates and the nine ICWA directors from the tribes, the characterization is justifiable under a rigid ICWA framing.

Cara Hetland, the radio news director of South Dakota Public Broadcasting, gave her own summary of state-tribal relations to my office. "I think that there is always an effort to bridge the gap, but I am not convinced that progress is ever made," she said. The state was partly to blame, but some of the tribes often didn't follow through on their end of bargains either, she said. This may stem from a long-standing distrust of American governments. Still, the mutual distrust affects the ability of the two sides to collaborate on foster care, she said.

This seemed to me to be a valuable insight that was missing from the series. And it came from an NPR resource, an editor at a member station who is on the ground and closest to the situation. But, sadly, the NPR investigative team consulted neither her nor the station. If they had, the NPR series might have been very different.

And so a major investigative series filled with errors and placed within a myopic framework slipped through the editorial cracks and on to the air and the Web. It even won major prizes. As the Stoics say, things happen. Fortunately for NPR, they rarely happen as badly as they did in the South Dakota series. But bad things will happen again. Reporters and editors are human. No shame in that. Sullivan and the rest of the NPR team have done great work on other stories and surely will continue to do so on more. My hope with this report is to show how and why the bad things happened in this particular series, and to help minimize the chances that they will happen again.


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