Slandering the Red States, Part II: An Astonishing Omission

NPR recently ran a three-part series on South Dakota’s child protection system, specifically as it relates to Native American children. The series was a scathing indictment of South Dakota’s Department of Social Services, which NPR accused of kidnapping Indian children for profit. The series included an attack on the current Governor of South Dakota, Dennis Daugaard (coincidentally, a Republican).

On Sunday, I previewed my own series on the quality of NPR’s reporting. Tonight’s installment focuses on the central theme of NPR’s programs: that South Dakota’s Child Protection Services agency (a division of DSS) kidnaps Indian children for the purpose of putting them into foster care, usually with white rather than Indian families.

If you think the word “kidnap” is absurd, you’re right. But NPR uses that word several times. Moreover, NPR’s narrative tries to support that characterization. Repeatedly, NPR depicts the South Dakota agency appearing out of nowhere to snatch Indian children from their homes or off the street. NPR’s first installment, titled “Incentives And Cultural Bias Fuel Foster System,” begins with the story of the Howe/Yellow Robe family, which lives on the Crow Creek reservation. One day, Child Protection Services comes for their children:

And then one evening two years ago, Howe’s phone rang.

It was a social worker from the Department of Social Services. She said her daughter Erin Yellow Robe was going to be arrested for drugs.

Howe couldn’t believe it. She had never seen any sign of drugs or any other problems.

And then the social worker changed Howe’s life. She said she was coming to take Howe’s grandchildren away. …

And yet not only did they take the two babies, two months later, Howe waited at the school bus stop. But when the bus came, the girls weren’t on it. A social worker had taken them from school.

“They didn’t even call and tell me. Nothing,” Howe says.

NPR doesn’t let anyone miss the point:

“It’s kidnapping,” [Crow Creek tribal council member Peter Lengkeek] says. “That’s how we see it.”

That is the sad story that begins the three-part series, but NPR keeps the kidnapping theme going throughout:

Department Secretary Kim Malsam-Rysdon says they’re dealing with abject poverty and substance abuse and have to do what’s best for the kids, which sometimes means driving onto a reservation and taking a child. …

The children were taken off the reservation by South Dakota’s Department of Social Services for a year and a half after a social worker heard an unsubstantiated rumor about their mother’s possible abuse of prescription pills. …

As the singing started, they slowly swayed, knowing that even now, social services can come back. Even now, at anytime, they can take the children.

But the idea that the Department of Social Services sends social workers onto reservations to snatch children is ludicrous. It has no such power; in fact, it has no jurisdiction at all inside any reservation. Every time the state agency takes custody of a child, it is under the supervision of a court. And if the child is on a reservation, South Dakota’s courts have no jurisdiction either–the order must come from the tribal court. So, in the case of the Yellow Robes, if the Department took custody of the children, it was because tribal law enforcement or the Crow Creek tribal court directed it to do so. If the Howes have a grievance, it is not against Child Protection Services, it is against their own tribal court. And you can be sure that the tribal court did not issue its order without a hearing.

If you know anything about the law, this is mind-numbingly obvious. But NPR’s programming is not directed to knowledgeable people. It is, rather, intended to fool the ignorant.

The legal framework that governs the relationship between Child Protection Services and Indian children is relatively complex. Some South Dakota Indians live on reservations; others do not. Suppose that Child Protection Services receives a report of neglect or abuse of a particular Indian child who does not live on a reservation. The agency investigates, and usually finds the report to be without merit. But if it concludes that the child is, in fact, abused or neglected, local law enforcement–not DSS–can take custody of that child. But that emergency custody can last for no more than 48 hours, within which time there must be a hearing before a circuit court judge. The case will then proceed in the state circuit court–except that the tribe to which the child belongs can petition to transfer the case from circuit court to the tribal court, a procedure that the Department of Social Services encourages.

With respect to children who live on reservations, the state government, including the Department of Social Services, has no jurisdiction. It is laughable to suggest that a child protection worker can drive onto a reservation, snatch a child, and put him or her in a foster home. The only reason why DSS gets involved in reservation cases at all is that some tribes prefer to outsource the child protection function. There are nine tribes in South Dakota. Three of them operate their own child protection and foster care programs. A fourth operates foster care programs, but not child protection. The Department of Social Services provides child protection services to the six tribes that prefer not to operate their own, and foster care services to the five tribes that do not operate their own. The only reason why South Dakota’s child protection employees set foot on a reservation is that they have been requested to do so by the tribe in question. And if they are there for the purpose of taking custody of an Indian child, it is because they have been told to do so by tribal law enforcement or the tribal court. Any subsequent proceedings (e.g., placing the child in a foster home) are carried out under the supervision of the tribal court.

So NPR’s “kidnapping” claim is one of the most outrageous slanders I have ever encountered.

Another principal theme of the NPR series is that South Dakota is flouting the Indian Child Welfare Act (ICWA) by placing Indian children in non-Indian foster homes. This is portrayed as a particular disservice to children who live on a reservation. But NPR fails to inform its readers that ICWA has no application at all on reservations. It relates only to proceedings in the state courts. Once again, NPR’s indictment is based on ignorance, not fact.

The NPR reporter responsible for the South Dakota story is Laura Sullivan. She traveled to Pierre with her producer to interview Kim Malsam-Rysdon, Secretary of the Department of Social Services, and the Director of Child Protection Services, Virgena Wieseler. The interview lasted for around an hour, and Ms. Sullivan taped it. I discussed the NPR series with Ms. Malsam-Rysdon, and asked her about the interview. She told me it was obvious that Sullivan was determined to put South Dakota in a bad light, and thought that she already knew the facts. She kept phrasing questions, “Isn’t it true that…,” a typical formula for cross-examining a hostile witness. Most significantly, Ms. Malsam-Rysdon told me that she explained the legal framework under which DSS operates to Ms. Sullivan, so that there is no excuse for Sullivan’s failure to understand that if an employee of the agency takes custody of a child on a reservation, it is always because the agency has been directed to do so by the tribal court.

So tonight I sent this email to Laura Sullivan:

Dear Ms. Sullivan:

I am conducting an investigation into NPR’s three-part series on Indian child protection in South Dakota. I have spoken with Kim Malsam-Rysdon, who told me that 1) she explained to you that the Department of Social Services has no jurisdiction on Indian reservations, except insofar as it has been asked to assume responsibility for child protection or foster care programs by the relevant tribe, and that whenever DSS takes custody of a child on a reservation, it is pursuant to an order of the tribal court or a request from tribal law enforcement; and 2) you taped your interview with her and Ms. Wieseler.

Accordingly, I have a question and a request. My question is, why did you tell NPR’s listeners that DSS “kidnaps” Indian children from reservations, when in fact DSS can act only pursuant to an order of a tribal court or a request from tribal law enforcement?

My request is for a copy of the tape of your interview with Ms. Malsam-Rysdon and Ms. Wieseler.

I look forward to hearing from you.

John Hinderaker

There is much more to come.

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