Abstract

Excerpted From: Bryce Drapeaux, Towards a More Meaningful Future: an Indian Child Welfare Law for South Dakota, 69 South Dakota Law Review 119 (2024) (255 Footnotes) (Full Document)

Since the inception of our nation, state and American Indian tribal relations have been recognized as unfriendly and even hostile. While this characterization equally applies to tribal-federal relations, there has been considerable tension between tribes and states that is deep-rooted and enduring. The hostility between tribes and states is so ubiquitous that a prominent Indian law scholar has attributed a name to the current model of tribal-state relations: the “deadliest enemies model.” Regardless of this tension, it is in everyone's best interest to work together in the spirit of cooperative federalism, so long as tribal sovereignty is not weakened in the process.

The argument that tribal-state agreements can pose significant dangers to tribal sovereignty is surely at the forefront of the minds of those who look to enter into these agreements to preserve and even expand tribal sovereignty. However, this concern cannot prevent tribes and their allies from manifesting the resilience necessary to improve the conditions of Indian people and communities throughout American society. And it seems it has not, as tribal-state agreements are becoming ever-present, even the norm in some respects, with some asserting that these agreements may even enhance tribal sovereignty.

These tribal-state agreements have the potential to develop new political relationships that empower tribal communities. As long as the tribal-federal political relationship is not negatively affected, tribal-state agreements appear constitutionally viable. Because the constitutionality of these agreements is likely not at issue, protecting tribal sovereignty is vital as more states reach agreements with tribes. The fact that states are negotiating with tribes demonstrates the legitimacy of tribes as sovereigns and supports the notion that tribal-state agreements are not de facto diminutions of tribal sovereignty.

Congress has, to some extent, delegated authority to the states in Indian affairs by passing the Indian Child Welfare Act (“ICWA” or the “Act”). ICWA structurally requires respect and cooperation between state and tribal judiciaries to achieve the Act's overarching goal, which is to “protect the best interests of Indian children” while also “promot[ing] the stability and security of Indian tribes and families ....” The enforcement of ICWA relies heavily on state judges and court personnel. Significantly, in advancing tribal self-determination and tribal sovereignty, ICWA contains a provision that authorizes states and tribes to enter into agreements to effectuate the federal Act.

To date, sixteen states have enacted their own versions of ICWA, in furtherance of the federal scheme, ensuring that their state courts and actors follow the law while also safeguarding tribes as the primary decision-makers in the welfare of their children. These state Indian child welfare (“ICW”) laws benefit both tribal and state systems and simultaneously benefit Indian children--the most vital resource “to the continued existence and integrity of Indian tribes ....” ICWA is considered by many to be the “gold standard” of child welfare, suggesting that states would be better off adopting their own ICW laws to supplement the federal Act. This gold standard brand also suggests that states would benefit from enacting baseline child welfare protections like those in ICWA that apply not just to Indian children, but to all children. Yet ICWA, like many federal laws, is not perfect and has room for improvement. This comment will focus on providing a pathway for improved tribal-state relations in South Dakota and will conclude by advancing a pragmatic model for a statute fit for South Dakota and the Tribes within it.

In February 2023, the South Dakota House of Representatives failed to move a bill out of committee that created further protections concerning placement preferences for Indian children. Making it out of committee, but ultimately failing on the House floor, were two bills--one that would have defined “active efforts” and another that would have “established a task force to address the welfare of Indian children” in the State. Augmenting placement preferences, defining “active efforts,” and creating a task force to address Indian child welfare would all be incredibly beneficial to streamlining the federal Act and improving Indian child welfare in South Dakota. Although none of the bills succeeded, this comment is intended to keep the conversation about Indian child welfare at the forefront of South Dakotans' minds, especially after the Supreme Court's decision in Haaland v. Brackeen upheld Congress's power to enact ICWA. Even though ICWA has alleviated much of the systemic removal of Indian children from their homes that transpired prior to its passage, out-of-home placement for Native American children still occurs at higher rates than that of non-Native children. Therefore, further action in this realm is still necessary--South Dakota has a real opportunity to further protect South Dakota families, children, and Native American culture.

In providing a roadmap that guides South Dakota towards an ICW statute of its own, this comment begins by summarizing the historical underpinnings and the general composition of ICWA in Part II. Part III provides an overview and analysis of three states that have already passed ICW statutory regimes in furtherance of the federal ICWA. Finally, in Part IV, the comment provides pragmatic recommendations for South Dakota by offering a pathway for improved tribal-state relations that will optimistically lead to the enactment of an ICW law in South Dakota.

[. . .]

The advancement of tribal-state relations in South Dakota relies upon, in large part, cultural understanding. Tribal nations have generally been required to understand American culture through forced assimilation, but states have not been forced to understand tribal culture. If tribal-state relations are to improve, South Dakotans should educate themselves on tribal customs and familial norms of the tribes within the State. Cultural development and understanding between the Tribes and State can certainly help foster negotiations with regard to Indian child welfare. That process can ignite healing, potentially eradicating the “ignorance that has taken root in the arid historical and political soil that permeates much of the region.”

Tribal-state agreements are potentially one way to bridge the cultural gap and protect Indian children. Tribal-state agreements may indeed be easier to accomplish than legislation because legislation requires far more political capital than sovereign-to-sovereign cooperative agreements. However, South Dakota's enactment of its own ICW law would be superior to a tribal-state agreement because state law would reach all nine Tribes in South Dakota, whereas a separate tribal-state agreement for each of the nine Tribes would be necessary to obtain the same effect as a state ICW law. Further, a state ICW law would be better for the long term. The federal ICWA provides crucial minimum standards for the protection, well-being, and preservation of Indian tribes and families. But state ICW laws can advance these overarching goals, augment the federal Act, and formally establish as a state policy that states are prioritizing Indian nations and their people.

ICWA has drastically cut down the disparities between non-Indian and Indian removal from their families; however, similar problems still persist, underpinning the continuing necessity for the Act's protections. Many times, state resistance to ICWA leads to the complete bypass of its provisions. By enacting its own ICW law, South Dakota can facilitate fidelity to the federal Act. Ultimately, South Dakota, and all states, should critically consider enacting a state version of ICWA, thereby furthering the protection and preservation of Indian tribes, families, and children, and creating a more meaningful future for everyone in South Dakota.

J.D. Candidate, 2024, University of South Dakota Knudson School of Law; enrolled member of the Ponca Tribe of Nebraska.