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May, 2015:

I would like to take this opportunity to thank the Bureau of Indian Affairs for strengthening the ICWA guidelines. This will help address the ongoing child seizure crisis in South Dakota. We here in the state have a very clear-eyed view of how rules are implemented in the state and we are convinced now more than ever, that South Dakota officials cannot be trusted to maintain the welfare of Indian tribes, our families and above all our children. The remaining five tribes must be funded with HHS IVE planning grants to develop their own Child and Family Service Programs.  South Dakota tribes want to bypass the abuses of the state and run our own programs for Lakota, by Lakota. 

However, we believe in strengthening ICWA not only for the good of the Lakota, but for all Indigenous peoples in the United States. With this in mind we would like to recommend five items designed to strengthen the existing ICWA guidelines or provide ones that don't currently exist. 

1. "Active efforts" needs a legal definition. Furthermore, active efforts must contain all reasonably available efforts. There should be a definitional burden placed upon the state so there are no questions, and state officials cannot make one routine phone call and claim they have made active efforts. PROTOCOLS for ICWA must be articulated and enforced.

2. Similarly, in keeping with active efforts, the idea of preferential treatment should extend beyond the nuclear family and include extended family such as aunts, uncles and grandparents. ICWA was designed to keep Indians rooted in their tribes and culture if the nuclear family breaks down. ICWA mandates preferential placement for the nuclear family, the extended family, the tribe, and other tribes.  DOJ should insist that the Congress include those placement mandates in the “enforcement section” of ICWA, thereby giving relatives legal recourse when they are unfairly ignored and denied placement.  

3. The DOJ must counter Supreme Court Judge Samuel Alito's misguided assertion that a parent or relative needs to apply for and qualify as a foster parent in order for the preferential treatment portion of the law to be applicable. Indian relatives should not need to apply to become a foster care parent or an adoptive parent. This provision runs contrary to the spirit of ICWA. 

4. Indian people must be removed from the State Index for crimes committed over 5 years ago.  The DSS refuses a relative placement for DUIs or mistakes they made decades ago.

5. Most important, the DOJ knows the level of illegality in and around Indian Child Welfare in South Dakota where the care of Indian children is a lucrative industry for the state economy, the pharmaceutical companies, the medical industry, and top state elected leaders.  It is imperative that the DOJ urge the HHS to give the IVE Planning grants to the Lakota tribes to develop their own Child and Family Service Programs.

Thank you for your time and attention.  Lakota People’s Law Project