This story has been updated with comments from Cheyenne River Sioux Tribal Chairman Ryman LeBeau.

SIOUX FALLS, S.D. (KELO) — The sovereign tribal nations of South Dakota are willing to work to improve the welfare of Native American children, with or without the state’s help.

Lower Brule Sioux Tribal Chairman Clyde Estes is not happy with the South Dakota House of Representatives decision to kill Senate Bill 191 that would have created a task force to study and improve the foster care system where Native children are disproportionately represented.

“It’s frustrating to say the least,” Estes told KELOLAND News over the phone on Thursday.

Estes isn’t alone. The Cheyenne River, Crow Creek and Oglala Sioux Tribes have all issued similar statements of disappointment with the legislature for killing a bill that they say is vital to protecting Native children.

“All we want is for that fair, equal treatment for our children and what’s in their best interest in their safety to keep them safe and make decisions to stop the traumatization of our children when they are removed and how we can keep them at home in a safe place and environment,” Estes said.

Cheyenne River Sioux Tribal Chairman Ryman LeBeau told KELOLAND News Friday that the decision from the House is “disheartening.” In January, LeBeau, Estes and Crow Creek Sioux Tribal Chairman Peter Lengkeek were invited to speak to lawmakers about their concerns and priorities, which included the welfare of Native children in the foster care system.

“The state had a great time to partner with the tribes and we feel that wasn’t honored by this killing of SB 191,” LeBeau said. “It creates another massive disservice to the children of South Dakota.”

Despite the failure of the bill, LeBeau is hopeful that the tribes can come together to create their own task force to study this issue without the state.

“And maybe we invite them,” LeBeau said.

Tribes united in common goal

The tribal nations of the state had been meeting long before Senate Bill 191 died in the House earlier this month. Oglala Sioux Tribe Vice President Alicia Mousseau gathered representatives from the tribal nations to be a part of a working group to work to protect and strengthen ICWA in the state.

LeBeau said that there are several groups working together across all the tribal nations. One of the big issues they’re working on is off-reservation ICWA cases which he called a “massive” issue.

“It goes back to who we are as Lakota people: our identity and, more so, our children are sacred, and they should be treated as such,” LeBeau said.

While the tribes are ready to come to the table with the state, they say there is no time to wait for the state’s help and so they’re willing to work on this issue on their own until that time comes.

“So, we do care very much about our children and the future of our children and have a really collaborative working group here to keep up with the best interests of our children and to keep fighting for them to keep them safe and prevent them from becoming another statistic in the system,” Estes said.

The Cheyenne River Sioux Tribe and the Lower Brule Sioux Tribe both have an ICWA department that includes an attorney as well as a child protection unit and an additional tribal attorney that are already working to provide protection to the children of the tribe. Estes noted that he’s thankful to the late United States Senator James Abourezk who authored ICWA in 1978.

“The tracks he laid down was a good foundation, but I think he knew that also there was still work to be done to keep revising it and strengthening it also,” Estes said.

The Oglala Sioux Tribe issued an executive order last summer to be able to navigate the issue with more resources and the Cheyenne Sioux Tribe is considering something similar.

“We’re looking at all options at this point to try to save our children from being lost in the foster care system of South Dakota,” LeBeau said.

Estes hopes that together the state and the tribes can strengthen its relationship to work on this issue so that it’s not inherited by the next generation to solve.

“The reality of how I feel is we need to work together with the state, but they also have to see us as equals and listen to our voice and our concerns because the fact of the matter is our children’s lives depend on it,” Estes said. 

Currently, ICWA is being heard before the Supreme Court where it could potentially be overturned. State lawmakers cited that case as a reason not to act this session on Senate Bill 191 because the SCOTUS decision could impact state laws. Estes, and other tribal officials, say the decision is immaterial to the end goal.

“Whether or not ICWA gets overturned, the fact of the matter is our Native children still need that voice and us, as tribal and state leaders, need to find a way to work together to keep them safe as far as them being in the system,” Estes said.

If ICWA is overturned, LeBeau is not confident that South Dakota lawmakers will codify it into state law to uphold the 40-year precedent.

“After what happened [with] this legislature, all these bills getting killed regarding ICWA, you know, it’s unfortunate but I don’t have any confidence that they’ll uphold ICWA in South Dakota,” LeBeau said.

Estes and Mousseau would both like to see improved communication between tribes and the state.

“We have to find ways to put aside our differences to do what’s best and that’s the frustrating part,” Estes said.

The cultural impact of being in the system

At the heart of the issue is the trauma that children, especially Native children who make up more than half of all foster care placements in South Dakota, may experience when removed from their homes which can follow them into adulthood. Estes said he heard from a tribal member this week who went through the state’s foster care system and was eventually adopted outside of the tribe.

“She said she felt she was lost along the way with her culture, her language, her family. She feels she has to live in two different worlds,” Estes said.

For the tribal member, being removed from her home and tribe as a child and returning as an adult means that she no longer knows other members of the tribe and they don’t know her, which she said is difficult. Estes said that the loss of identity and culture can lead to a feeling of being disconnected for those children which can impact them in their adult lives as they try to reconnect with their tribe and their family.

“When you are raised in a tribal community you feel that sense of belonging; it’s where you call home, it’s where you feel safe,” Estes explained. “It’s learning those cultures and traditions that have been passed down for many generations to keep that alive and keep that circle of life and that way of living, growing within our own community and our tribal members.”

For LeBeau, the practice of removing Native children and placing them in non-Native foster care homes reminds him of the quote from Captain Richard H. Pratt: “Kill the Indian, save the man.”

“That whole mantra seems like it’s being perpetuated into today,” LeBeau said. “We’re seeing our children getting taken away from their families and put in this system that they lose who they are, they lose their identity, they lose their language, their culture.”

Mousseau said that removal from the home at a young age when brains are still developing can have “dramatic effects” on a person.

“We know from the Adverse Childhood Experiences Study that, you know, those early traumatic experiences in children’s lives, leads to negative health outcomes, run ins with the law, you know, substance use, look up the ACEs study, that that has been foundational,” Mousseau explained.

One way to alleviate that trauma can be kinship placements, which Mousseau said can reduce recidivism and delinquency with children in the foster care system.

“It is a practice in social work that has been shown to have amazing effects,” Mosseau said. “And we wanted all the children of South Dakota to have the opportunity to be placed with their relatives. That didn’t even make it out of committee.”

In Lakota culture, family is everything, LeBeau explained.

“That’s who we are and it seems like the state doesn’t value family as much as we do,” LeBeau said. “When a child is off in a foster care system, away from their family, they’re not learning their language and not learning their identity, their culture, their spirituality. They’re basically taking the Indian out of them by displacing them in a non-Indian foster care system.”

The court proceedings can also be difficult to navigate for families, according to Estes.

“It’s true that a lot of them are not notified within that certain amount of time, especially if they have no known address for those parents or guardians of that child,” Estes said. “So, it complicates the process and we want to make sure that every child has a voice at the table fighting for them. Especially on the tribal level.”

A class action lawsuit in 2013 found that Pennington County court proceedings would often take between one and five minutes before decisions were found in the state’s favor. A judge validated claims that the parents of the children taken into state custody were not provided with the required documentation.

Estes said that in addition to protecting the rights of these children, there is also an obligation to show the children that they belong and always have a home within the tribal communities.

“We need to do everything we can to fight for them, to protect them, preserve that right for them. Especially those who can’t speak,” Estes said. “That’s really important because they’re our future leaders, our employees and most of all they’re tribal members.”