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Bob Mercer

MERCER: ICWA, for better or worse

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opinion Mitchell,South Dakota 57301
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MERCER: ICWA, for better or worse
Mitchell South Dakota 120 South Lawler 57301

PIERRE -- The decisions of the South Dakota Supreme Court contain many cases involving the federal law known as the Indian Child Welfare Act.


They are always a sad story.

One purpose of ICWA is to give tribal courts jurisdiction over parental rights of Indian children on reservations.

Another purpose is to provide tribal jurisdiction, in concurrence with state court, over parental rights when the Indian family lives off-reservation.

Sometimes ICWA works. Sometimes it doesn't.

An Indian woman, adopted by non-Indian parents as a child, was eligible to enroll as a member of the Crow Creek Sioux Tribe but never did.

Decades later, when her youngest child was taken from her by the state Department of Social Services, because she indisputably was a drunk, she tried to use ICWA to fight for custody.

In 2011, the tribal ICWA director said the federal law didn't apply to the mother. She wasn't a tribal member. Her son wasn't a tribal member.

She went to state court, but the Supreme Court justices ruled against her. The justices said they had no authority to overrule the tribe's determination on eligibility.

In a 2004 case, a state circuit judge decided a mother's appeal for custody shouldn't be transferred from Vermillion to a tribal court at Fort Thompson.

The justices reversed him, saying it indeed was for a tribal court to decide.

Last fall, in another case, the justices ruled against the Cheyenne River Sioux Tribe as the tribe sought that ICWA be applied at a temporary custody hearing.

Three Indian children had been removed from a Rapid City home. They were alone. The oldest, age 16, was drunk and suffering from seizures. The two other children were ages 12 and 3.

The justices said the tribe's lawyer didn't show a case when ICWA applied at a temporary custody hearing.

In another case, the Rosebud Sioux Tribe filed to intervene in the termination of parental rights for four children. The filing was Aug. 9, 2001. But the lawyer didn't seek a transfer to tribal court until July 29, 2002.

The state circuit judge held a hearing on the transfer request. The tribe didn't send anyone.

The justices said the judge didn't err in denying the transfer.

The justices also agreed with his determination to sever the parental rights. The parents hadn't made adequate progress in 19 months, the justices said. In 2005, the justices decided an established ICWA witness wasn't sufficiently expert in the ways of the Cheyenne River Sioux Tribe. His experiences were with the Yankton Sioux, Ponca and Flandreau Santee Sioux. These decisions, and many more by the justices, show the challenges in following ICWA.

Another problem that popped up several times was key definitions were weak or missing from the federal law. Meanwhile leaders in several tribal governments, and various people seeking to protect Indian children and families, accuse the Department of Social Services of wrong-doing. They allege that Indian children are put with non-Indian foster parents, in defiance of ICWA, for financial gain. If such proof exists, it will make quite a story. They want control.