Public Defense

Native Americans in Child Protection

The Rapid City Journal is running a two part article on the interaction between the Native American community and South Dakota's child protection system.

Part One
Law seeks to keep children's tribal identity intact
Editor’s note: This is the first in a two-part series of stories about placement of American Indian children removed from their homes. Tomorrow: Commission prompts improvements.

By Steve Miller, Journal Staff Writer

As an American Indian boy growing up in Ainsworth, Neb., Dwayne Stenstrom knew he was different from everybody else. And not in a good way.

In 1968, when he was 8 years old, Stenstrom was taken from his mother on the Winnebago Reservation in eastern Nebraska. She had a drinking problem. He and an older brother were placed in foster homes, ending up with white foster parents in Ainsworth.

Part Two
State improving compliance with Indian Child Welfare Act
By Steve Miller, Journal Staff Writer

The article focuses on the identity issues caused when a Native American child is removed from his birth parents and placed with a non-Native American family. In 1978, Congress passed a law called the Indian Child Welfare Act (ICWA) in an attempt to combat this problem. However, critics of South Dakota's system say that state officials are not complying with ICWA. Two years ago, the state formed a commission to investigate the problem.

ICWA can give rise to some awkward moments in our courtroom. When a new case comes into our court, the State is obligated to investigate whether ICWA's requirements might apply to that case. The first time a parent appears in court, the prosecutor asks the parent a series of background questions. Name, address, date of birth, etc.

The next question often prompts some puzzled looks and funny answers if I don't have a chance to warn my client that it will be asked:

Prosecutor: Are you or any member of your family a member of any Native American tribe?
Parent: Um....Do I look Indian to you?

No. No, she doesn't. She actually looks very white/black/Asian. But if I don't warn my clients about the question ahead of time, they make a face that seems to say "Why the hell would you ask me that question?" and often say something inappropriate.

Of course, aside from the technicality that the State has to make a good faith inquiry into ICWA issues, there is also the practicality that one's heritage is not always apparent from looking at them. For every ten confused looks or sarcastic answers, we get at least one person telling us that, yes, she is 1/2 Native American.

Other good responses I've witnessed have been:

Prosecutor: Are you or any member of your family a member of any Native American tribe?
Parent: Yes, I'm a U.S. citizen.

Prosecutor: Are you or any member of your family a member of any Native American tribe?
Parent: What does that mean?
Prosecutor: Do you have any Native American ancestry?
Parent: Huh? What is Native American?
Prosecutor: [stammering, trying with all his might to resist the urge to put one finger behind his head and start chanting "woo-woo woo-woo"] Um, I mean, are you Indian?
Parent: Oh. No.

posted by Public Defense @ 1/10/2006