PIERRE, S.D. (KELO) — Native Americans make up less than 10 percent of the state’s population but in State Fiscal Year 2022, Native children accounted for 60% of the South Dakota foster care system.

The overrepresentation of Native children in the care of the state was the catalyst for Senate Bill 191, which sought to establish a task force comprised of tribal leaders, the Department of Social Services (DSS), the Unified Judicial System and state lawmakers to work together to promote the welfare of Native children. The bill, which faced no opposition in legislative committees, failed 42-26 in the House of Representatives Wednesday.

The decision to not address the welfare of Native children through a task force at this time was an affront to the Oglala Sioux Tribe who called the action “deplorable.”

“We tried to come to the table, we tried to work with the states,” Oglala Sioux Tribe Vice President Alicia Mousseau told KELOLAND News Thursday. “We’re more than disappointed because our children are relying on this, our families are relying on this, our nations are relying on the ability for us to work with the state. But if the state doesn’t want to work with us, you know, we’ve done that part.”

This issue is so important to the tribe that in 2022 they issued a State of Emergency for the Indian Child Welfare Act Program and Child Protective Services. They are encouraging the other tribal nations of South Dakota to do so as well.

“That declaration of a state of emergency will allow the other tribes to use any and all measures to ensure the health safety and welfare of our wakanyeja (children), which we need to do at this point since the state does not want to work with us,” Mousseau said.

No progress for welfare of Native children

The last time the state addressed the welfare of Native children in South Dakota was in 2004 when then-Governor Mike Rounds established a commission to take action.

“Governor Rounds in 2004 established an ICWA coalition to look at these issues and in 2005, they put out 30-plus recommendations and only a few of those recommendations were put into law,” Mousseau said. 

Since then, Mousseau said that the number of Native children in the care of the Department of Social Services has remained the same.

“Nothing has changed,” Democratic Representative Peri Pourier said over the phone Thursday.

Pourier was the House sponsor for the bill and gave a passionate testimony Wednesday to persuade fellow lawmakers to vote to create the commission. But her emotional speech and the bipartisan support wasn’t enough to advance the bill.

Republican Tony Venhuizen spoke against the bill saying that the Indian Child Welfare Act (ICWA) is currently pending before the Supreme Court of the United States and now is not the time to reconsider state laws when it’s not yet clear what the future looks like for ICWA. Venhuizen also took issue with the composition of the task force as it would be comprised of representatives from all nine tribal nations, two DSS representatives, two representatives from the state courts and four lawmakers.

“Four legislators on a seventeen-person committee but we’re paying for it, we’re staffing it and again it would be meeting at least twice as much as a normal committee,” Venhuizen said.

Pourier said that Venhuizen’s comment on funding is not true.

The bill, Pourier explained, was amended to be staffed and funded by the Executive Board as an interim legislative committee that would have met eight times and dissolve on November 15, 2024. She said that the legislature would have only been responsible for paying for the lawmakers and Legislative Research Council staff while the other stakeholders would have mechanisms to fund themselves to attend the meetings.

“They all had reasons to not support so I fixed all those reasons,” Pourier said. “So there was no valid reason to vote no on this bill.”

As far as Brackeen v. Haaland, Pourier said no matter what the Supreme Court decides, the state of South Dakota needs to address this issue here at home.

“We have to decide as South Dakota lawmakers what is important to us,” Pourier said. “Is the disproportionate rates of Native children in the state system an issue that is a priority to the state of South Dakota?  And the state of South Dakota said no; the House of Representatives said there’s not a problem here.”

Bringing everyone to the table

During a Republican leadership conference on Thursday, Representative Will Mortenson said while this issue is close to his heart, the bill was untenable.

“You don’t need a bill to have meetings,” Mortenson continued. “If you want to be able to get the people in the room to start addressing these topics, we can do that and we don’t need a law to do that.” 

Throughout the 2023 legislative session, the legislature has passed four bills to create task forces on various topics.

Pourier said that the decision to create a task force rather than going through the Executive Board for a summer study, which Mortenson referenced in the conference, was to bring the tribes to the table to communicate with the state. A summer study, she explained, would only be comprised of legislators.

“And if the logic is we don’t need a bill to have meetings, then I would say, well, we don’t need task forces; we don’t need legislative studies. We should be just… we should just stop doing that,” Pourier said.

States do not know how to be diplomatic when dealing with us.

Alicia Mousseau

Mousseau and Pourier both said that the tribes are struggling to get the state to the table to talk about this issue, which is why SB 191 was crucial.

“If it was simple as calling somebody up, we would have done that but there’s no collaboration in fighting it, so we wanted to bring a bill that would look at it,” Pourier said.

While the tribes are sovereign nations, there are many treaties in place between them and the United States government that provides a bureaucratic framework between the two entities. But that relationship doesn’t extend to services relating to children, Mousseau explained.

“They continue to have us work with states when states are not sovereign nations,” Mousseau said. “States do not know how to be diplomatic when dealing with us.”

During the State of the Tribes in January, Mousseau said the governor’s office disrespected Crow Creek Chairman Peter Lengkeek when Governor Noem’s chief of communications, Ian Fury, responded with a fact check of the chairman’s address relating to the often-tenuous relationship between the state and tribes.

“That would never happen had we gone to another nation, right? When you’re invited by another nation, you’re allowed to give your statements and it’s not criticized,” Mousseau said. “I would also like to point out some of their fact checks were wrong, you know, so that that was very disrespectful. That was not diplomatic.”

Communications with the state have been difficult for the Oglala Sioux Tribe. Mousseau said that when they reached out to the Department of Social Services to get in touch with the ICWA representative, they received few answers and continue to struggle to get in touch with the state on these issues.

“I understand governments are bureaucracies, right, but yes there needs to be better communication. We thought this taskforce that would be established through Senate Bill 191 would help with that communication,” Mousseau said.

On the other end of the spectrum, Mousseau said communication with other tribal nations has been easier.

“So, we’re gonna have to figure out how to how to continue to, you know, open up communication and work together,” Mousseau said.

The Oglala Sioux Tribe is calling on the eight other tribal nations in South Dakota to declare a State of Emergency on ICWA to provide them with the resources to navigate the issue together as sovereign nations.

“We all have to come to the table to come up with these solutions together, to put our minds together to see what we can do for our children and that’s what we’re doing here at the Oglala Sioux Tribe,” Mousseau said. “And we just wish the state had wanted to come to the table with us and put our minds together so we can see what we can do for our children in the state of South Dakota. Because they’re our children as tribal nations but they’re also children of South Dakota as well.”