A bill that would codify provisions of the Indian Child Welfare Act has been approved by the South Dakota House Judiciary Committee on a vote of 9 to 3. The bill requires the Department of Social Services to make active efforts to prevent removal of children from families. ICWA currently requires that measure, but the federal law has been challenged before the U.S. Supreme Court, with an opinion pending.
Rep. Peri Pourier introduced HB 1168. She told the House Judiciary Committee that poverty underlies many of tribes’ challenges, and the vast majority of Native children removed from their homes are removed for neglect.
“Neglect can often look like poverty to some people,” she said.
ICWA requires “active efforts” from states to keep indigenous families together, but South Dakota law is largely silent.
“There’s nothing in code that outlines active efforts,” Pourier said. “All it says is that the state must have due regard to ICWA.”
Pourier said Native children and families could be better served if the state and tribes built a relationship based on trust, and this addition to state law might help.
DSS was represented at the hearing by its general counsel, Jeremy Lippert. He said DSS currently follows the “active efforts” mandate from ICWA, and so HB 1168 is redundant.
He noted that the U.S. Supreme Court is currently deliberating the constitutionality of ICWA, and when its opinion comes out, the state might have to recalibrate.
“We may very well have a complex array of specific portions of the federal statute that stand or fall, to which the state’s courts, legislature, and agencies will have to respond in a thorough, comprehensive, and thoughtful manner,” he said.
After witnesses testified, Rep. Tim Reisch spoke in favor of the bill. The first-time legislator is a former long-time Secretary of Corrections. He said South Dakota’s prison population is disproportionately Native, and studies show that factors such as unemployment, poverty, and dropout rates in school contribute to those numbers.
“I’m not convinced that passage of this bill is going to change anything in a huge way,” he said, “but I think we’ve got to try everything we can.”
The committee approved the bill, and it now goes to the full House, where it is currently set on the calendar for Monday, Feb. 6. If it survives there, it heads to a Senate committee.
