No matter how difficult the circumstances, no matter what struggles led up to the moment, it’s hard to fathom a more painful situation than losing custody of your child. Imagine if you were given no say in the matter, no opportunity to ask questions or state your case or receive parenting assistance of any kind. Imagine if the presiding judge took less than 60 seconds to “review” your case and hand over custody of your child to a complete stranger hundreds of miles away. This is the harsh reality for countless American Indian parents every year, even though it is against the law and has been for more than 40 years.

In South Dakota alone, thousands of Native American children have been removed from their homes in this way to be placed in foster care. It is considered normal for child custody hearings involving Indian parents to last less than 5 minutes. They often take 60 seconds or less, a fact confirmed by a federal judge as part of a lawsuit filed by the American Civil Liberties Union (ACLU) that challenged the state’s child removal procedures. 

According to the lawsuit, hearings in state court often took place less than 48 hours after children were removed from their homes. Parents did not receive a copy of the petition and were given no opportunity to speak nor call witnesses to testify on their behalf. Typically no state employees testified, either, and the state won every single case. Nobody cared what Indian parents thought or felt – they weren’t even told why their kids were being taken – and the courts were essentially a rubber stamp for the removal process. 

Follow the money

More than half of the children in South Dakota’s foster care system are Native even though American Indians make up less than 10 percent of the state’s population. Indian children in the state have historically been 10 times more likely to be placed in foster care than white children. Nine out of every 10 Indian children placed in foster care are sent to live with white families. There are any number of reasons why this is the case, from structural racism to individual bias to lack of parental support programs in reservation communities. And then there’s the money.

For every Indian child placed in foster care, the state receives nearly $80,000 annually in federal funds – about $100 million in total – while foster parents who “care” for the children are paid less than $10,000 per year. Do the math. If the state were to follow the law as proscribed by the Indian Child Welfare Act (ICWA) that windfall would be gone overnight.

South Dakota’s foster care system has produced a long list of horrific cases of abuse and neglect with little action taken. The most shocking instance is likely that of Richard and Gwendolyn Mette, a white couple from Aberdeen. The Mettes fostered numerous Lakota children and subjected them to more than a decade of ritual sexual abuse and physical violence. The details of the case were so horrific that observers had to be removed from the courtroom after becoming physically ill during testimony. Shockingly, the state dropped 23 of the 24 felony charges against Richard Mette, who eventually pled guilty to rape of a child under 10 years of age. He cut a plea deal and was eligible for parole after just six years in prison. Some 11 felony charges of physical abuse against his wife were dropped and four female children were returned to her custody. It was later revealed in court that authorities had engaged in a far-reaching coverup to conceal massive negligence on the part of the state and avoid potential liability.

Photo: Library of Congress.

Ignoring the law

The unauthorized taking of Indian children had been going on for nearly two centuries before non-Indians started paying attention. The historic abuse of Indian children in residential schools has only recently begun to receive coverage in the mainstream media. When these institutions of indoctrination began to close in the 1960s, the separation of Indian children from their parents shifted and a wave of adoptions by white families took place that removed thousands of Indian children from their communities. Officials claimed these programs were humane efforts to help forgotten children find good homes. Some might have actually believed that.

By the late 1960s, Native children accounted for more than 40 percent of all adoptions in South Dakota even though American Indians made up less than 7 percent of the population at the time. Children were removed from their homes with brute force. Parents and grandparents who resisted were arrested and jailed.

“…white people cruising the reservation in search of children.

The numbers in other states with a significant Native population were similar throughout the 1960s. In North Dakota, for example, about a third of all Indian children were placed for adoption, put in foster homes or sent away to institutions. About 90 percent were raised by non-Indians, and many would never see their biological families again.

The U.S. Congress held 28 days of hearings in the late 1970s to address the adoption issue. Elected officials listened to testimony from more than 90 tribes, and what the elected officials heard shocked them. They learned that few preventative or support measures had ever been put in place to help Indian parents. Testimony revealed, for example, that in 80 percent of the cases in Minnesota involving the custody of Native children the state had provided no services at all. None. Officials would simply wait for Indian families to reach a crisis point before intervening and usually then only to initiate parental termination proceedings. When services were provided these were only rarely sensitive to tribal culture or traditions. The hearings led to passage of the Indian Child Welfare Act in October of 1978, groundbreaking legislation that was supposed to remedy the situation.

Many tribes believe that children are the responsibility of the tribe as a whole,  not just the biological parents. The Indian Child Welfare Act confirmed that this was the legal right of the tribe, and designated tribes to act as parents for their children just as states do when their biological parents cannot. The law gives preference for adoption by members of tribal communities over white adoptions. 

IWCA seemed like a huge step forward at the time, but that’s not how it turned out. Over 40 years later, the Indian Child Welfare Act might be the single most ignored federal law in the history of the United States. Today, it is under attack by conservatives and their proxies who believe it discriminates against white people. 

The definition of genocide

Parents aren’t perfect. Reservation life is scarred by the ravages of poverty, drug and alcohol abuse, and trauma passed down through the generations. Often there is no disputing the notion that children should be removed from the homes of their biological parents. Some adults simply don’t have the skills or resources to be good parents. The issue then is who should care for the children when the parents cannot?

In spite of the ICWA, the separation of Native children from their families continues at alarming rates. In states like South Dakota, authorities are still doing the things they have always done and parents rarely have a say in the matter. According to international law, the forcible transfer of children from one group to another constitutes genocide. A century ago, residential schools served as a means to strip children of their culture and indoctrinate them into the white world. Today, it is the adoption and foster care systems that do the same.