Governor’s ICWA Commission
September 9, 2005, Pierre, SD
Meeting Minutes
Commissioners
Present:
Raymond Cournoyer, Bob Walters, Dave Valandra, Garrie Kills A
Hundred (on behalf of Guy Zephier), Sara Olson, Lynn Sudbeck (on
behalf of DJ Hanson), Judge Jack Von Wald, Judge Kathleen Trandahl,
Judge BJ Jones (Co-Chair), Judge Janine Kern (Co-Chair), Tracey
Manywounds, Cordelia White Elk, Renee Eggebraaten, Ann Holzhauser,
Mike Schad, Virgena Wieseler, Sr. Mary Curran, Bill Whitelance, Doug
Herrmann, Steve Emery, Jim Bradford, Teresa Nieto
Commissioners Absent:
Rose McKauley, Deb Fischer-Clemens, Tami Maroney Bern, Joni Cutler,
Bob Gray, Theresa Two Bulls, Keith Bonenberger
Others present:
Margaret Bad Warrior, Pamela Bennett, Duane Jenner, Tom Magedanz,
Roger Campbell, Marge Two Hawk, Robert Becker, Aske Whitebird, Lori
Walking Eagle
-
Welcome
The meeting was
called to order at 9:11 a.m. Bob Walters said the opening prayer.
Virgena Wieseler introduced the new Secretary of DSS – Deb Bowman.
Deb thanked the co-chairs for continuing the endeavor, and also
thanked the Commissioners for the work that has been done. She
described her background and experience. The governor has decided
to have the Commission look at the top 30 recommendations and
prioritize the ones that have not been acted upon yet and also come
up with ways to implement them. She also briefly described what DSS
has done to comply with the recommendations.
-
Overview of 2004 Legislation (UJS and DSS)
Judge Kern
summarized why the Commission was reconvened. Governor Rounds would
like to have a report by November 30, 2005. The Commission will
now review which of their 30 recommendations have been implemented
and which have not. They will look at the ones that have not been
executed and think of ways in which they can be implemented. Much
has happened since the December 2004 meeting. The 2005 legislature
enacted several statutes effecting ICWA compliance and the Supreme
Court rendered three important decisions. Judge Kern also discussed
SDCL 26-8A-33 which was originally submitted to the Supreme Court by
the ICWA Commission as a proposed rule. The Court held a hearing on
February 17, 2005 and adopted the rule. Commissioner Emery
testified in favor of the rule. It is now codified as 26-8A-33, and
allows Tribes to appear in ICWA proceedings either through counsel
or by a representative designated by the Tribe. DSS has made a lot
of steps forward.
Lynn Sudbeck (UJS) talked about recommendation numbers 12, 29, and
24. The three recommendations are intertwined. Judge Gors has
agreed that the Green Book needs to be updated and he will be in
charge of making the revisions. Judge Gors has copies of checklists
from the National Council of Juvenile and Family Court Judges and
the NCSC recommendations to incorporate into the Green Book. NICWA
has a credit card sized list of what happens during court. UJS has
received permission to copy and hand out to families. Keith
Bonenberger has been named the state-wide ICWA Coordinator to work
with DSS. Judges have training sessions twice a year; the next
spring training will have an ICWA component. Lynn also brought up
that North Dakota state judges meet with the tribal judges three
times a year. DJ Hanson will attend this next week. The training
is in New Town, North Dakota
and the contact person is Jim Ganje (jganje@ndcourts.com).
Judge Jones asked how judges from the state and tribes can speak to
each other about an ICWA case (ex-parte communication). Judge
Trandahl said that judges can do that between states (Uniform Child
Custody Jurisdiction and Enforcement Act). Judge Kern suggested
that tribal judges should be included in this type of legislation.
Ann Holzhauser (DSS) briefly went over the four bills that were
passed.
HB 1226 –
notice bill. Notice can be made by telephone or fax, 48-hour
hearing to be sent to tribe, ICWA requirements to be tracked by
certified mail (sent to parents, tribe, Secretary of Interior, BIA,
Indian custodian). The files now include a sample form so that each
file is uniform.
SB 55 – relative
placement.
This does not only apply to ICWA cases, but to all cases. Relatives
are given preference for foster care and adoptive placement, as long
as it is in the best interest of the child. This also applies to
custodians such as: stepparents, adoptive parent of sibling of child
in question – in order to keep children together. If a non-relative
is chosen over a relative (adoptive placement) then that relative
has a right to request a hearing. This bill doesn’t prevent the
tribes from intervening in an A & N.
SB 12 – appearances.
This bill authorizes a parent to appear telephonically for a hearing
to voluntarily terminate parental rights.
HB 1258 – expands
definition of an abused and neglected child to include one who
knowingly exposes the child to an environment that is being used for
the manufacture, use or distribution of methamphetamine or other
drugs.
-
Summary of South Dakota Supreme Court decisions
Judge Jones summarized the three SD Supreme Court decisions that
were rendered and discussed an important case pending in California.
JSB-Rapid City.
Does the Adoption and Safe Families Act apply to Indian Children?
The SD Supreme court is the first court in the nation to resolve
this. ASFA does not relieve “active efforts”. If it’s an Indian
child, DSS is not relieved of duty
to provide services to Indian families. DSS doesn’t have to apply
ASFA, but the tribe has to apply ASFA to kids coming through the
court system.
M.H. – Sioux Falls.
Who is a qualified expert witness? The Supreme Court held that just
because someone has general knowledge of ICWA that does not qualify
someone as an expert witness. The Supreme Court also held that
expert witnesses must have knowledge of that particular Tribe’s
child-rearing practices and not just generic knowledge.
The People of the
State of South Dakota in the Interest of O.S.
Who is a qualified expert witness? The Supreme Court upheld use of
a DSS social worker who had four years experience in DSS where half
of her cases involved ICWA. Social workers are generally going to
be qualified expert witnesses (QEW). The courts will probably have
a problem with lawyers being a QEW. The Supreme Court denied QEWs
testifying by phone because tribe had not made prior arrangements.
Doe v. Mann
(California) – challenges to court decisions.
Mother took case to Federal court through 1914 – Indian parent or
child may challenge state court decisions to overturn decision. Now
there is a case in front of Judge Schreier filed by the
Crow Creek Sioux Tribe. Currently because of habeas corpus
(cannot use to challenge termination of parental rights), but 1914
may be used to do this.
Break – 10:26 am to 10:51 am
-
Department of Social Services – status of efforts
to implement recommendations.
Virgena Wieseler
(Director, CPS) went through a PowerPoint Presentation regarding the
efforts of DSS to comply with the ICWA Commission’s top 30
recommendations.
-
#1 - Governor Rounds met with Secretary
Bowman, Virgena Wieseler, and Ann Holzhauser about the ICWA
Commission in January. They suggested doing follow-up
meetings this year. He reappointed the Commission through
Executive Order and wants a report by November 30, 2005.
-
#2 - Hire Child Placement Investigators
(Family Locators) housed in Pierre and Rapid City. The
focus will be on kids coming into care, contacting tribes,
contacting other relatives – and asking relatives how they
wanted to proceed in terms of kinship care, licensed foster
care, etc,. The investigators will help the families
through whichever process they choose. The positions were
filled in August.
-
#3 - Statewide ICWA director for DSS. Duties
were reassigned in CPS State Office to free up an FTE for
the ICWA Program Specialist. DSS hired Teresa Nieto; she is
located in Rapid City. Among others, her job duties are: to
conduct an ICWA knowledge assessment review within the CPS
department – 22 question assessment of knowledge for staff
to establish a baseline as to ICWA knowledge in the office
to focus training efforts; ICWA compliance case reviews by
office; ICWA director’s meetings; identifying expert
witnesses and making a listing available; and visiting
tribes to review ICWA office.
-
#4 - Contracting. Currently have contracts
with the Sisseton Wahpeton Oyate. Working with the Oglala
Sioux Tribe and the Rosebud Sioux Tribe on an Integrated
Child Welfare System.
-
#6 - ICWA info on CPS website. Providing a
listing of all ICWA offices, their contact information, and
tribal judges so offices can go to website when dealing with
an ICWA case. The info was also sent to Chuck Shroyer and
was forwarded to all state’s attorneys. ICWA resource
material was distributed to all state’s attorneys offices at
a training seminar. The Green Book will contain a chapter
on ICWA, a copy of the BIA guidelines, a copy of the notice
bill that had been passed, and federal regulations. The
State Bar Association also did A & N training with an ICWA
component; the training is available for all attorneys.
-
#7 – Create family placement specialist teams
with representatives from the DSS. DSS has hired two social
workers; their sole responsibility is to locate relatives of
children entering care. They are also working with ICWA
directors to assist in locating relatives. They hope to
meet with tribes about case planning, child care, etc.
-
#8 – presented by Kathy Deserly, who has been
working with Virgena’s office since last November. She is
working with CPS to design collaborative circles and a
recruitment/retention strategic plan. They want to bring
back the State-Tribal effort. The State-Tribal work group
to be looked at as more of a collaborative effort. They are
asking themselves what activities this group would tackle.
What is coming out of the ICWA Commission and how can they
be sure it lives on after the Commission ends. The next
meeting will take place on the 21st and 22nd.
Tribes are submitting names to participate and the state has
identified people as well. Virgena stated that the same
people must show up to the meetings consistently for things
to get done. Judge Kern asked for a copy of the members of
the collaborative and a copy of the draft plan for all the
Commission members. Aske will send it out to all the ICWA
Commissioners after the next Collaborative Circle meeting
scheduled for September 21st 22nd,
2005.
-
#9 – resolved through HB 1226
-
#10 – revise format of PRIDE. PRIDE is a
copyrighted curriculum – and cannot be changed. PRIDE
Adaptation Project which is an ongoing initiative by the
PRIDE Advisory Workgroup to develop a PRIDE curriculum
focused on Native American families. South Dakota is one of
the states being looked at to pilot the curriculum.
Extending families through UNITY, available through Casey
Family Programs and some CPS trainers have been trained.
SRST, CCST, SWO, and FSST have licensing agreements with the
State. CRST, RST, and OST have draft licensing materials.
-
#13 – create a statewide ICWA office within
state government. No office has been created but DSS has
hired a statewide ICWA coordinator and UJS has named Keith
Bonenberger as the ICWA contact person.
-
#14 – court reports go to ICWA director and
tribal judges.
-
#16 – MOU between Casey Family Programs and
CPS in Mission and Pine Ridge to implement Family Group
Decision Making. Implementing Group Family Decision Making
in Rapid City as a pilot program with assistance of Casey
Family Programs in Pine Ridge. Need to obtain outcome data
to support expansion in other areas.
-
#18 – develop a protocol for transfer of
cases.
-
#19 – DSS contracts with the Children’s Home
Society to complete all kinship home studies, home
locators. CPS has had a 25% increase in relative placements
between July 2004 and June 2005 (this number does not just
include Native American children, but all children that come
into CPS custody). The CPS staff is striving to improve
that number.
-
#21 – implement ICWA resources within state
and private adoption agencies. DSS and UJS should designate
people who are expert witnesses and disseminate information.
-
#22 – develop a network of ICWA experts.
-
#25 – ICWA affidavit – update in Green Book.
Ongoing discussion with State’s Attorneys regarding updates
in the Guidelines. Have ongoing dialogue with several
counties on the ICWA Affidavit.
-
#28 – Certificates of Mailing should clearly
indicate which documents were sent to the tribes. Efforts
have been made to attach the Certificate of Mailing to the
document mailed in the DSS file and to develop a tracking
log to be contained in each case record.
-
#30 – protective capacity assessment being
piloted. Directly relates services to issues causing
children to be unsafe in home – behavior vs. compliance
based. DSS wants to reconnect children with their families
and keep them safe. Plans are to begin the pilot this fall.
Lunch – broke at
12:02 pm and resumed again at 1:05 pm.
-
Report from the Great Sioux Nation ICWA
Consortium
Lori Walking Eagle
and Raymond Cournoyer from the Great Sioux Nation ICWA Consortium
gave a PowerPoint Presentation on their organization. The
organization is comprised of tribal ICWA directors/employees. They
are a work in progress – they have developed by-laws and a charter,
and have done Honoring the Children ceremonies. They leverage funds
for attorney’s fees and travel; they are coordinating a list of all
ICWA offices on the reservations. They are planning a workshop in
December in Rapid City. They are meeting in Rosebud in September
(the 3rd or 4th week in September). The GSN
ICWA Consortium extended an invitation to the Commission to attend
and speak at their meeting.
Raymond Cournoyer
added that in Charles Mix County, he must submit a tribal resolution
for each case he is appearing on in Circuit Court. Judge Jones and
Judge Kern said that one resolution designating him as the
representative of the Tribe should be sufficient. They offered to
write letters to Chief Justice Gilbertson to discuss training for
UJS staff on his issue.
-
Report from Tribes
Standing Rock
Sioux Tribe – Tracey Manywounds
Her office currently has agreements with North Dakota and South
Dakota. They don’t terminate parental rights – as termination is
not a part of their code and tradition. There is a strong court
system – a licensed Standing Rock Sioux Tribal attorney gets the
forms or court orders. There are administrative reimbursements from
4E from ND, currently trying to access from SD. They are focusing
on suicide prevention and received a grant to assist in suicide
prevention efforts. OST has come up to help Tracey in the
communities as well as the State of North Dakota. She will be
having a meeting with the SD Health and Human Services department to
help with suicide prevention. Her office is funding a lot of
programs which promote positive activities and assisting families
with burial expenses. She has a good working relationship with ND
and all four tribes in ND run their own programs. It’s approved
through the state and federal 4E agreements.
Oglala Sioux Tribe
– Cordelia White Elk
For the past four years they have been building an integrated child
welfare program. It is designed to work with a number of
disciplines: courts, public safety,
mental health, etc. They organized a leadership committee who drive
this and are now seeing the results. They will be having a
judiciary retreat to provide training on this new program. They are
also pulling in custom laws which include community members and
spiritual leaders. There are also interagency meetings with I.H.S.,
CPS, and Dakota Plains Legal Services. The ICWA Commission has
helped them tremendously and the Tribal/State committee will help.
Crow Creek Sioux
Tribe – Dave Valandra
Dave’s office has a good working relationship with the State of
South Dakota. His office deals strictly with ICWA cases. He
monitors 70 cases in various states other than SD. 16-17 cases are
from SD. He does licensing of foster homes (currently 11 licensed
foster homes), does home studies, etc. All foster homes are full.
He also gets 250-300 notices from other states for enrollment
eligible children related to ICWA.
Cheyenne River
Sioux Tribe – Bob Walters
The tribe is currently working on standards for licensing programs.
In 2000 they passed standards and sent them to the state, but
nothing was done. They are in the process of working on changes
with a tribal lawyer. CPS is needed. Children are being put into
non-Indian foster homes far away (98+ miles). They are working on
getting foster parents on the reservation.
Yankton Sioux Tribe
– Ray Cournoyer
He thinks there have been a lot of positive steps to help tribes.
He has been running into problems with the State’s Attorney
regarding notification. Currently, the State’s Attorney requires
Ray to have a separate tribal resolution for each child. This poses
a problem for the 48 hour hearing.
Flandreau Santee
Sioux Tribe – Garrie Kills A Hundred
Stated he is very impressed by what he’s heard today. He is willing
to make a commitment to this process. They are currently trying to
get a Boys and Girls Club started.
Rosebud Sioux Tribe
– Steve Emery
Steve spoke on a number of topics throughout the day and therefore
did not give a separate report.
Sisseton Wahpeton
Oyate – Judge BJ Jones
The Oyate has had 4E agreement with the State since 1978 – which
helps with placement. They also have BIA funding and the tribe
kicks in $500,000 per year for children. They receive about 100
cases to transfer jurisdiction. He says that in regard to the
transfer protocol, that the local law enforcement and social workers
have a duty to cooperate with tribes to help enforce the
presentation of the case. He also brought up that AFSA applies to
children on reservation but does not apply to children off of the
reservation. They are also beginning to have problems with the
“disestablished reservation” label.
Lower Brule Sioux
Tribe – Rose McKauley
Rose was not present at this meeting.
Judge Kern then
asked if any other Commissioners wished to speak on behalf of their
agencies.
Sr. Mary Curran:
the Catholic Family Services program is still looking to see if any
of the recommendations apply to them. They have found a couple of
things they should be doing. Their program does not deal with A&N
cases, however this has been educational for them.
Jim Bradford:
he asked if the legislation has done anything good for the
children. Steve Emery commented that generally it has done some
good; however he does not like SB 12. This bill is ok for folks who
are beyond the authority of SD judges (people who are in federal
custody); on the other hand for those who are within SD
jurisdiction, this may pose some problems. Jim was worried that
this legislation wouldn’t help the kids. Ann Holzhauser said that
the effects of these bills may be hard to judge right now because
the bills were just enacted.
Mike Schad:
His office deals primarily with A&N cases and they’re doing their
best, but doesn’t know if it’s good enough. As far at the 48 hour
hearing and tribal affiliations of kids – sometimes tribal
affiliation is still not know by the time the hearing takes place.
The biggest issues that he’s run across is the notice of the 48 hour
hearing. Adding exposure to methamphetamine as grounds to file a
petition will have an immediate effect because the meth problem is
huge in Pennington County. Overall he thinks that the communication
between the State and the tribes can still be improved and a
conscious decision to improve communication is a matter of
developing new relations with people again. Biggest benefit he’s
seen is the building of communication. Steve Emery commented that
this is the first time that he’s aware of that the State Bar has
addressed ICWA. Steve appreciates what Mike’s been doing and thinks
it’s tragic that the Commission ends on November 30. The ongoing
dialogue that has been taking place is very helpful because the
State’s Attorneys and Tribal administration have a lot in common.
Steve also commended DSS for being on the job 24 hours a day 365
days a year. Mike Schad added that with the revised Green Book
there should be more training on ICWA. Ann Holzhauser said that she
e-mailed the State Bar Association and said she’d help with the
training on ICWA but that there ought to be other people involved
also. Mary Curran brought up that it shouldn’t be advertised as
just for ICWA abuse and neglected cases, but also made available to
all attorneys.
-
Small Group Breakout
The Commission broke out into three groups to discuss
the 30 recommendations and to prioritize the recommendations that
have not been touched upon yet.
-
Small Group Reports
Prioritization of recommendations:
Group 1:
#4 – recommend having Secretary Bowman send out a letter to the
tribes on this point. #5 – tribes and DSS should work at
identifying potential expert witnesses. This is an urgent concern.
#12 – priority placed upon protocol developed by each tribe, state’s
attorney, and UJS. #15 – public defenders offices identifying
someone who specializes in ICWA cases for parents (Minneapolis does
this and they have an office set up for it) – governor would send a
letter to tribes asking them if they would be interested in
receiving more help in receiving funding from the federal level to
help with ICWA cases (assistance in advocating for funds). #18 –
transfer of records and funding (4E) should follow the child. This
should be addressed soon and look into developing protocol for
addressing other funding issues. Assure expert witness testimony
for foster care placements – look into and follow how it’s being
developed across the state – expert testimony presented within 90
days – 1912E needs additional funding/compliance – could happen at
the adjudicatory hearing – an area where we need to improve and
build it into the Green Book and maybe state law as it’s already
federal law. #30 – active efforts – distinction between reasonable
efforts and active efforts at the court level. Possibility of
Commission members commenting on what the National Center for State
Courts report said. Judge Jones and Judge Kern requested that
Commissioners send their comments to them.
Group 2:
mainly talked about Mike Schad’s case – training DSS workers to seek
the info out (possibly an Indian custodian) as soon as they get the
case. Asking social workers to look into that and at the same time
having the tribes do a record check (for an Indian custodian).
Protocol on transfer and the need for it – judicial training, bar
training, continuing CLE’s – training every 5-8 years is not enough.
Group 3:
#18 – transfer protocol – getting cooperation from law enforcement,
DSS, etc. in presenting in tribal court. Bringing kids back from
another state possibly by using interstate compacts to follow child
rather than not having access to funding. Availability for tribal
judge to use state court room where family is, providers are,
resources are, witnesses are. Develop a check list for private
adoptive agencies and judges to use. Funding for developing the
expert witness list available by tribe needs to be looked into.
Training in SB 12 at the annual conference for Clerk of Courts –
talk to UJS people on Commission on doing the educational training.
Develop a form for relatives to help them get a hearing. Develop a
resource listing by tribe on: mental health departments,
alcohol/drug departments, traditional healers, housing, etc.
Laminate cards with ICWA info on it and the ICWA offices info on it.
Things to
accomplish before the next meeting: summary of what was reported by
the end of next week (Mike Schad, Ann Holzhauser, and Virgena
Wieseler). Virgena will send out an e-mail of her PowerPoint
Presentation and a draft of Collaborative Circle along with who is
involved with it. At the next meeting the written document needs to
be talked about (how to draft it). Report progress and look at
recommendations that weren’t addressed and how they can be
implemented.
Jim Bradford
brought up that he would like to see some of the Commission members
on the Collaborative Circle. The input to the Governor and
Legislature is very important. He would like to know how to take
what the Commission has done and keep people vested in what has been
talked about. Judge Trandahl said that a lot of progress has been
made but a lot of people don’t know about it and a lot of good
things have been done by the state and tribes. Judge Kern suggested
that maybe there ought to be a press conference. Judge Jones
suggested a summary of great accomplishments from DSS, a slide show,
discuss what hasn’t been done yet and which entity is responsible,
and talk about the report.
-
Strategic plan – next meeting date
The next meeting date was discussed (October 8, 2005)
in Rapid City. This date was suggested as the majority of
Commission members will be there for the Black Hills Powwow.
Sr. Mary Curran concluded the meeting with a prayer.
The meeting ended at 4:15 pm on Friday September 9, 2005.
Back to the top
|
