In South Dakota, 51% of children in foster care are Native American but one woman turned de facto legal counsellor is using the law to change that

Sitting on the quiet plains of South Dakota, the Crow Creek reservation is buried in snow. Janice Howe’s tiny home, nested in a sparse enclave of houses, is a warm haven against the winter chill. She slips bits of dough into a sizzling pan as her granddaughter and nieces joyously chase one another. As the girls tumble over one another, Howe talks about her work: her role is to bring Native American children back to the reservation. They were, she says, stolen by the state – and the story starts with her own family.

“They take children away [from families] because there’s no food in the house so I find a way to help them get food, keep their lights on, get their rent paid,” she says. “I remember that heartache. I don’t want any other families to go through that.”

The former public health nurse is still outraged about the day, five years ago, that representatives from the state’s department of social services (DSS) showed up on her daughter’s doorstep without warning and hauled her grandkids away. Howe says the allegations of neglect were flimsy, and ultimately unsubstantiated. By placing her grandchildren in state foster homes outside the tribe, DSS also violated Howe’s rights under the Indian child welfare act (ICWA), a federal law that is supposed to protect children of Native American tribes from state interventions and removals.

That law, experts say, is a way to shield native families from allegations of neglect based on poverty. It reads:

In judging the fitness of a particular family, many social workers, ignorant of Indian cultural values and social norms, make decisions that are wholly inappropriate in the context of Indian family life and so they frequently discover neglect or abandonment where none exists.

It took 21 months for Howe to get her grandchildren back – enough time for her to study and use the act to her advantage by transferring her case to a tribal court. Afterward, she started a support group on Facebook for Native American mothers and grandmothers who are fighting their state courts for custody of their children.

“Is very comforting to know that there are others who have walked down this path in regards to our children,” posts Brenda Charger, a Lakota grandmother from Pierre, South Dakota. “So thankful to have found this group helps to know that I am not alone in this deal. Wopila, ladies!”

Facebook Twitter Pinterest Janice’s copy of the IWCA. Photograph: Sue Purchase

After hearing about Howe’s success, families across the state started asking for her help. Most of the parents and grandparents Howe counsels don’t have legal representation and are unaware of their rights. As such, she has become a de facto legal counselor in her community. Howe says she has advised upward of a hundred families, answering calls from places as far away as California, Arizona and Tennessee at 1 or 2am.

In South Dakota, where Howe lives, 51% of children in foster care are Native American. A majority of them were removed from their families on charges of neglect.

“[The state of South Dakota] has instituted a system whereby they take long-term custody of Indian children based on allegations of neglect, sometimes abuse, without providing the parents a fair hearing,” says Dana Hanna, an attorney for the Cheyenne River Sioux and the Oglala Sioux tribes. “The parents are simply not allowed to present any evidence on their own behalf in these hearings.”

State violating the law?

Hanna is representing two South Dakota tribes in a class action lawsuit filed against state officials for systematically violating the act. Last week, the Bureau of Indian Affairs issues updated ICWA guidelines for state courts for the first time since 1979, specifically citing the lawsuit.

In December, the US attorney general, Eric Holder, announced a new initiative to “actively identify state-court cases where the US can file briefs opposing the unnecessary and illegal removal of Indian children from their families and their tribal communities”. Holder promised to strengthen the act by ensuring compliance with the federal law with the caveat that “barriers erected over centuries of discrimination will not be surmounted overnight”.

Many native families and advocates say the commitment is long overdue. After decades of assimilation-oriented policies, ICWA was passed in 1978. By then, one in four Native American children were removed from their families and placed in boarding schools, adoption or foster care placements.

Despite the law’s intentions, the removal rate of all American Indian children increased to 35% over the following decade, 85% of whom were placed in non-Indian homes. Thirty-five years later, these children remain staggeringly overrepresented in state foster care placements across the country.

Some cases have garnered considerable media attention over the last few years, including the baby Veronica case that went all the way to the supreme court in April 2013. But most remain messy battles fought in tiny state and county courtrooms, where poor families are subject to the capricious whims of judges and social workers who are woefully under-informed about the federal law or use state law to circumvent the act’s requirements.

Facing such barriers can be daunting for native families, most too poor to afford legal representation. For many of them, Howe becomes a lifeline. When she learns about mothers in danger of losing their children or grandparents trying to regain custody of their grandkids, she does her best to reach out and offer advice. “Just that little bit of stuff I know,” she says. “When I get involved in a case, we get the kids back.”

Facebook Twitter Pinterest On the Crow Creek reservation. Photograph: Sue Purchase

Howe keeps a thickly bound copy of the ICWA law, its pages highlighted with notes scribbled in the margins. When a mother or grandmother calls her for advice, she thumbs through the book to find useful passages to build their case.

As she cooks fry bread one afternoon, Howe turns to open a kitchen cabinet and pulls out her copy. She dictates sections into the receiver and encourages the caller to memorize it. The law becomes a tool to quote when they plead their case in front of a judge. Minutes later, she pulls out the golden puffs with tongs, setting them on to a brown paper bag to cool on the kitchen counter.

“Once I got a hold of this book,” she thumps the cover, “that opened my eyes. It has helped me so much to say, this is what it says on this page, so why isn’t this happening? I’ll give you the number. You look it up and call me back.”

Howe described one bewildered mother who contacted her after the sheriff and social workers took her son away when she brought him to the hospital. Andrea White Hat worried when her son, sick with a fever, began simultaneously vomiting and had diarrhea, especially considering he was born with pontocerebellar hypoplasia and required a feeding tube. She feared he was in danger of becoming dehydrated. Indeed, by the time she was able to hitch a ride to the Sanford Children’s clinic in Sioux Falls, SD, about 250 miles from the Rosebud Reservation where she lived, the baby had lost weight.

“[The doctor] reported to the DSS that I didn’t feed him that much,” she says, “but I do feed him on a schedule of every three hours, even throughout the night.”

The 20-year-old called Howe in a panic and told her the state had taken him from her at the hospital, accusing her of neglect and saying she was incapable of meeting his needs.

While Howe started making a round of phone calls, White Hat followed her son. By the time Howe heard from her again, she was camped out near the foster home where state officials placed her baby.

“She hitchhiked to Coleman, lived under a tree, starved for a whole week – just to see her baby,” Howe says, shaking her head. “You can’t tell me that’s a mom who isn’t hurt; who’s determined to keep her baby?”

Andrea White Hat still can’t talk about the day her son was taken from her at the hospital without crying. It is hard to find the words to describe what happened because no matter what way she looks at it, she still doesn’t understand why they stole her baby.

“[Janice has] been helping me learn what to do,” White Hat says in a voice laced with grief and gratitude.

Facebook Twitter Pinterest Janice and her family. Photograph: Sue Purchase

The premise of ICWA supports the importance of preserving native customs and society. Even if the parents’ rights are ultimately terminated, the law requires children be first placed with relatives, within their tribe or with an Indian family, to preserve their cultural identity and community. Tribes also have a right to intervene in custody decisions and can transfer jurisdiction of a child welfare case to tribal court.

“Culturally, we don’t have a concept of termination of parental rights,” says Nona Etsitty, a Navajo Nation tribal court advocate. She has actively helped bring children back to the reservation, whom she describes as grappling with internalized racism adopted from mainstream stereotypes of Indians.

“Children lose their identity when they are placed outside the family and they begin to identify with the aggressor,” she explains. “It changes how they think of their tribe and family. Children raised by outside families, if asked what they think of the tribes, they think they are dumb.”

Damaging stereotypes further alienate children, she attests, which results in shockingly high suicide rates in her community. According to the National Congress of American Indians, one in six Indians attempts suicide before turning 18. Etsitty argues the dissolution of American Indian identities has been gradual,and most effectively achieved by the destruction of native families.

Political game v culture clash

Opponents of ICWA argue that preserving cultural heritage should not factor so heavily in adoption or foster care placements and claim the new initiative will do more harm than good.

“It’s not about the kids, it’s really about maintaining tribal sovereignty,” says Elizabeth Morris, chairwoman of the Christian Alliance for Indian Child Welfare. She describes ICWA as a political game, a way to preserve “tribal kingdoms and get federal money. They get to meet with the president … If they seriously wanted to protect children, they would have to send them off the rez and give them to white foster homes.”

Morris’s organization is one of several working to dismantle ICWA by lobbying legislators, saying that the law is playing politics with families’ lives. “ICWA goes after the grandkids,” she explains. “When tribal governments want the child, there’s nothing you can do about it except get ready to hand him over.” The group also helps non-native adoptive or foster parents seeking custody of American Indian children by paying for legal consultations with attorneys well-versed in circumventing the act.

Morris’s husband was born on the Leech Lake reservation, which makes her children half Ojibwe. Children raised on the reservations fare poorly, she says, highlighting dismal rates of alcoholism, homicide and sexual violence on many reservations.

“Nobody’s pining for Indian country,” Morris elaborates. “Life on the rez isn’t Dances with Wolves. We’ve got to quit this fantasyland.”

Howe disagrees, saying the state-run child welfare systems do far more harm than good to native children. The consequences are evident when considering how many American Indians in state prisons were formerly wards of the state as children. “It just blows my mind, every time someone calls and I start talking to them, hearing their stories,” she says. “I’m just like ‘were you in foster care?’ and they say ‘yeah.’ That says a lot, you know?”

Howe worries about the difficulties American Indians face when they return to reservations after adoption, trying to reconnect with their families after years, sometimes decades, of separation. “The Mormons and missionaries took a lot of our kids,” says Navajo Nation’s Etsitty. “The majority of them come home to look for their family.”

‘Never give up your rights’

It is hard for the families to keep fighting. Often it takes years to get children back once the state takes custody. White Hat has since moved back to the Rosebud reservation, hoping to get her case transferred to tribal court instead of remaining in the state’s jurisdiction. The young mother is a full-time student at Sinte Gleska University and refuses to voluntarily terminate her parental rights. “Never give up your rights,” she says. “Never give up on your children. Stay strong.”

Her son remains in state care, and she hitch-hikes 120 miles to Chamberlain once a month to visit him. Every three months, she says, the foster family will bring him to the reservation for a couple hours so she can visit with him.

White Hat’s Facebook profile is a montage of photos with her son, recording every visit they spend together. The majority show them cheek-to-cheek, cuddling on couches or snuggled in bed, and the accompanying posts detail the nuances of caretaking through sleepless nights or reflect on the emptiness of his departure, the too quiet house in his absence.

“By now I thought she might have given up but she hasn’t,” says Howe, who is proud of White Hat’s persistence. “That’s his mother, you know?”