Alexis Tiyona with her grandchildren Charlie Rue, 3 months, and Felizcia, 7, at their home in Sioux Falls, South Dakota, Oct. 21, 2014. Andy Richter for Al Jazeera America

SIOUX FALLS, S.D. — Lois Thunder has been trying to bring her grandchildren home ever since the state removed them in 2007 on charges of neglect. State social workers placed all five children in foster care after Thunder’s granddaughter told a teacher their mom was never home. The children’s parents, who were abusing drugs and alcohol, were incapable of caring for them, Thunder admits, but she can’t understand why the children weren’t released to her. “My husband and I, we took care of all them kids when their parents were on the outs, drinking and doing whatever,” she says. “We took care of them kids.” The placement was a violation of the 1978 Indian Child Welfare Act (ICWA), a federal law that stipulates Indian children be placed with extended family members, tribal members or in a home with at least one Native foster parent. But experts say the majority end up in non-Native homes. “Removing a child is the most invasive thing the government can do to a family, short of the death penalty,” says Kendall Marlowe of the National Association of Counsel for Children. “ICWA was meant to address the longstanding, systematic process of removing Native American kids from reservations, with no legitimate basis, destroying Native American families and cultures in the process.” Too often, he cautions, social workers punish parents for being impoverished. They might find an empty refrigerator or a dirty house or a kid who hasn’t received prompt medical care and then accuse parents of neglect. “We’re not too fond in this country of helping poor people,” says Marlowe, who adds that the standards used to gauge child welfare are racist and classist. Thunder and her grandchildren are part of the Standing Rock Sioux tribe of North and South Dakota. Last month the tribe received a $300,000 federal grant to set up a tribal-run foster-care program — a glimmer of hope for Thunder and other Native American families across the country who have had children placed in non-Native foster homes.

They didn’t even try to call me or look for me to see if I would take those kids … I asked the judge, ‘How come I wasn’t given the chance to raise my grandchildren?’ Lois Thunder seeking custody of grandchildren in foster care

Placements weren’t supposed to operate this way. The ICWA was intended to make it more difficult to remove children from Indian homes at a time when over a quarter of them were placed into adoption, foster care or boarding schools. More than a century of forced removals has resulted in generations of institutionalized and displaced Indian Americans. Native children, 35 years after the passage of ICWA, are still staggeringly overrepresented in state foster care placements across the country. Although Native Americans make up only 8.9 percent of the child population in South Dakota, they constitute 51 percent of children in foster care in that state. In North Dakota the numbers are 5.4 percent versus 28 percent, and in Montana it’s 6.5 percent versus 35 percent. The federal grant, administered under the Baucus Act, can be used to develop the infrastructure needed to set up a tribal-run foster care program. The funding can make a big difference for tribes that are often too financially strapped to intervene in custody hearings. “The law empowers tribes to run their own child welfare programs,” says Terry Cross, director of the National Indian Child Welfare Association. The newly appointed interim project coordinator for Standing Rock’s program, attorney Chase Iron Eyes, hopes the resulting federally funded tribal programs will be able to bring the tribes’ children home. “There are nine tribes in South Dakota, and we’re all in trouble,” Iron Eyes says of the tribes’ missing children. “We’re in crisis response mode right now.”

A class-action lawsuit

Even though it has been seven years since social workers placed her grandchildren in state custody, Thunder refuses to give up hope that her family will be reunited. Had Thunder been at home in Sioux Falls when the state intervened, she would have insisted on a kinship placement for the children, all under the age of 7 at the time. But she was on the Rosebud Reservation 250 miles away to bury her husband, who had just died, and found out about the removal a week later. “They didn’t even try to call me or look for me to see if I would take those kids,” Thunder says, still incredulous. It was a friend who called to say there were photos of her grandkids, listed as for adoption on a government website. When she returned to Sioux Falls, she petitioned the court for custody. “I asked the judge, ‘How come I wasn’t given the chance to raise my grandchildren?’” she recalls. “You know what he said to me? ‘Sit down. I’m the boss in this courtroom.’” Thunder’s courtroom experience isn’t unique. Last year the ACLU filed a class-action lawsuit on behalf of the Oglala Sioux and the Rosebud Sioux tribes. They are suing South Dakota officials for systematically placing Indian children in state custody, violating the ICWA and denying their families and tribes due process. The lawsuit alleges that parents weren’t allowed to hear the allegations against them, testify or present evidence in their own defense during the hearings. One of the plaintiffs, also a member of Standing Rock, had a custody hearing that lasted just 60 seconds, according to the ACLU. In August the Department of Justice filed an amicus brief in support of the tribes’ case. In Thunder’s case, social workers advised the judge against returning the children to their grandmother, she says, because she was “too poor.” On the other hand, the white couple eager to adopt Angel and Genea, her two granddaughters, told the judge that they could provide for their financial, educational and medical needs — a justification that is explicitly condemned by the ICWA. “All too often,” the law reads, “state public and private agencies, in determining whether or not an Indian family is fit for foster care or adoptive placement of an Indian child, apply a white, middle-class standard, which, in many cases, forecloses placement within the Indian family.” (The other three grandchildren — Ryan, Jason and Jaeden — remain in foster care homes in Valley Springs, South Dakota.)

Tiyona, center, meets with Tanya Hill, right, and legal adviser Rosanna Schoneman at the Good Shepard Ministry in Sioux Falls, Oct. 22, 2014. Hill was successful in getting custody of three of her eldest daughter’s children and six of her son’s children. Andy Richter for Al Jazeera America

About a third of Native families with children live below the poverty line, according to the U.S. Census Bureau. Data collected by the National Child Abuse and Neglect Data Center show 89 percent of Indian child welfare cases involved neglect; only 16 percent involved physical abuse. In 2008 and 2009 more than half of tribal ICWA offices — created in accordance with the law to handle allegations of child abuse and requests from parents who live outside reservations to transfer their cases to tribal court — surveyed by the Lakota People’s Law Project identified placement as “the single most serious area of noncompliance with ICWA.” But Joanna Smith, a non-Native case manager for the federal health clinic of Colorado’s Ute Mountain Ute Tribe, thinks that courts should be allowed to remove Native children. She argues that the ICWA fails to serve the best interests of Native kids; most of the children she worked with, she says, have lived chaotic, unstable lives dictated by sequential crises. “We have a lotta, lotta, lotta, lotta half-blind, half-deaf 85-year-old women raising wild teenage grandchildren who got dumped on them over the years, and they would never turn those children away,” Smith explains. “But they are in no way capable of taking care of them.” Her stance comes as no surprise to Marlowe. “The history of child welfare shows that Native Americans were treated with blatant hostility and racism,” he says. “The dramatic removal of their children, the way we took their lands and engaged in genocide, has left Native American communities devastated.” Two of the defendants in the ACLU lawsuit, Kim Malsam-Rysdon and Judge Jeff Davis, did not return calls seeking comment; a third, Mark Vargo, declined to speak on the record.

Leaning on each other

Unable to afford legal representation to help her gain custody of her kin, Thunder joined a support group in Sioux Falls. The women, all Native American grandmothers, meet periodically to strategize how to get their grandchildren back from foster care placements. Early one morning, Thunder attended a meeting in the home of Alexis Tiyona, who successfully regained custody of her grandchildren in 2011. Tiyona’s 3-year-old grandson played on the rug as they talked, collecting toys to pile in his dump truck and then emptying each load with a squeal of delight. “It’s so hard going up against the state,” Tiyona says, “I almost gave up several times. That’s why I started a support group.” The women lean on one another during messy custody battles, trading advice and sympathetic hugs.

Tiyona helps her Felizcia with her church studies while Nakei, 3, watches with infant Charlie Rue at their home, Oct. 21. Andy Richter for Al Jazeera America

Several of the grandmothers are painfully familiar with the child welfare system. Some were taken from their families as children; others have lost some of their sons and daughters. Tiyona remembers cycling through 32 foster homes as a child, many of them abusive. “I would say … ‘You’re not supposed to hit me,’” she recalls. “I got to the point where if you’re going to hit me, I’m going to hit you back.” When the state moved to place her grandchildren in foster care, Tiyona — unable to bear the thought of history repeating itself — requested custody but was denied. She refused to give up and petitioned to have the custody case transferred from state court to Crow Creek’s tribal court, a right she had under the ICWA. In the face of opposition from the Department of Social Services, it took two and a half years to transfer the case and for Tiyona to finally be granted custody. “The judge said, blood is thicker than money, and I’m going to grant her her grandchildren back,” she remembers. “I about fainted.”

Seeking custody

Inspired by Tiyona’s success, Thunder tried to apply for guardianship through her own tribal court. But the ICWA director failed to submit the paperwork (he later told her it had been lost), so the judge awarded custody of Angel and Genea to the adoptive parents. Three years after the girls’ removal, she was finally granted visitation rights. “We didn’t even know how to react to each other when I saw them because it had been such a long time.” Today Thunder sees Angel and Genea only twice a month. Along with new parents, the girls have received new names. She describes the girls as withdrawn during their supervised visits. Thunder has continued to seek custody of Ryan, Jason and Jaeden, begging three successive ICWA directors for help, to no avail. During her monthly visits with her grandsons, she says, they seem hungry and underfed, but no one seems to care whether Thunder can prove she is a fit parent. “I don’t know if I’ll ever get my grandchildren back,” she says, looking down at her hands. “Probably when they’re 18 … Hopefully, I’ll still be alive.” Her sixth grandchild, Landyn, was born after his siblings were taken away. When Thunder noticed that his parents were still using drugs, she intervened to prevent another involuntary placement in foster care. She has been raising him since he was 3 months old. While she is making a dance costume for the toddler, now 3 years old, sadness coats her voice when she describes the children dancing and speaking their native language at powwows. Of her older grandchildren, she says, “They’re missing out on all that.” Still, Thunder hopes the Standing Rock Sioux Tribe can bring its children back through tribal court and place them with their families. After hearing about the federal grant the tribe received, she says she is considering moving back to the reservation in the hopes of getting custody of Ryan, Jason and Jaeden. “[The state] won’t be able to keep them from me forever,” she says.