Yesterday, Meteor Blades posted a thoughtful and impassioned diary concerning Laura Sullivan’s story that aired on NPR Tuesday, Wednesday, and Thursday of this week: "Native Foster Care: Lost Children, Shattered Families".
Our Lakota People’s Law Project (LPLP) has been working with the Lakota, Nakota, and Dakota People in South Dakota since 2005, focusing especially on rescuing Lakota children from the abusive, state-based foster care system. As the lead attorney and general counsel for LPLP, I want to respond to an important question MB posed in his diary and also elaborate on strategies for beginning to redress the atrocities in South Dakota.
Meteor Blades ended his diary by asking:
But why should lawsuits be necessary? There is a law against what's being done. It's just not being enforced....The 1978 Indian Child Welfare Act appears to us to be just another ignored bit of paper, like hundreds of treaties, and nobody official is doing squat about it. When it comes to invisible Indians who enforces the enforcers?
I know that it seems like there should be no need to have to file a federal lawsuit to enforce the provisions of the 1978 Indian Child Welfare Act (ICWA) since, on its very face, the law so plainly states that its provisions are “mandatory.” However, section 1914 of the Act (its “enforcement” clause), while granting the express authority to federal district courts to enforce its provisions, inadvertently failed to expressly enumerate Section 1915 of the act as being enforceable in federal court. Section 1915 is the part of the law which mandates that Indian children taken from their parents by state authorities be preferentially placed with their Indian grandparents, their Indian relatives, or a member of their Indian tribe. It is precisely this section of the act that is being so flagrantly violated in South Dakota and elsewhere.
As a result of this flaw in ICWA’s enforcement provisions, Indian grandparents or other relatives who are denied the opportunity to care for their relative children are unable to sue for redress in federal court—even though the act is clearly being violated!
The Lakota People’s Law Project believes that two complimentary approaches can help resolve some of these problems: 1) Amend the Indian Child Welfare Act to repair its enforceability provision; 2) Litigate to enforce ICWA either under the new amendment or in any other manner that can be developed.
We know that the weakness of the enforcement provision in ICWA was a mere oversight on the part of Congress because former South Dakota United States Senator James Abourezk, who was the principal author of the 1978 Act and is the Chairman of the Board of Advisors of the Lakota People’s Law Project, said so. He expressly informed Congress of this oversight immediately after the United States District Court for the Southern District of South Dakota, back in 2006, ruled, in the case of Collins v. Bern (Case No. Civ-04-4182 KES). In that case, the court ruled that until such time as Congress amends Section 1914 of ICWA to expressly include Section 1915 of the act as enforceable in a federal court, the South Dakota federal courts would not grant standing to any Indian relative of any Indian child seized by the South Dakota Department of Social Services in seeking restitution.
The Lakota People’s Law Project is currently working to compile court-admissible evidence to support a lawsuit against the Department of Social Services for violation of the Indian Child Welfare Act (ICWA).
Ultimately, we believe that a truly lasting solution will come only when the People of the Seven Council Fires (Oceti Skowin) reassert their sovereignty and right to self determination, and when the Untied States government returns to them both their children and their traditional tribal lands, as guaranteed to them by the 1868 Treaty of Fort Laramie.
Over the last 30 years I have had the opportunity to participate in litigating multiple cases against the reactionary forces within the American power structure, including The Karen Silkwood Case; The Iran/Contra Case; The American Sanctuary Movement Case; The Pentagon Papers Case, and many others. Overcoming these reactionary forces in the State of South Dakota will require the employment of every tactic that the Lakota People and the progressive forces of our nation can muster.
It is true that neither the Lakota People nor their progressive allies can be naive in the face of the long history of the blatant violation, by every branch of the federal government and by every state, of the laws and treaties enacted to benefit Indian people. But we and our Lakota allies in South Dakota have, in the past, successfully employed legal tactics to help move forward the objectives of oppressed communities.
Currently we recommend three action steps for members of the DailyKos community to take:
1. Contact the following congressional leaders on Indian affairs, in addition to your local representatives in both the House and Senate, and demand that they take action to amend ICWA so as to make it more enforceable:
U.S. Senate Committee on Indian Affairs:
http://indian.senate.gov/...
(202) 224-2251
Daniel Akaka (D-HI)
Chair of United States Senate Committee on Indian Affairs:
http://akaka.senate.gov/...
(202) 224-6361
John Barrasso (R-WY)
Ranking Minority Member of United States Senate Committee on Indian Affairs:
http://barrasso.senate.gov/...
(202) 224-6441
Doc Hastings (R-WA)
Chair of United States House Committee on Natural Resources:
https://naturalresourcesforms.house.gov/Contact/default.aspx
(202) 225-5816
Ed Markey (D-MA)
Ranking Minority Member of United States House Committee on Natural Resources:
http://markey.house.gov/...
(202) 225-2836
2. Spread far and wide the NPR story by award-winning journalist Laura Sullivan:
http://www.npr.org/....
Visit the Lakota Peoples Law Project website to learn more about our work and ways that you can get involved.
Thank you very much to Meteor Blades and DailyKos,
Attorney Daniel Sheehan
