State should confront Indigenous foster care and prison numbers

A mural painted on the side of a boarded up apartment complex in Eagle Butte depicts an infant holding the hand of an elder. (Makenzie Huber/South Dakota)

The Indian Child Welfare Act is a federal policy that seeks to keep Indigenous families and communities intact by regulating the removal of Native American children from their homes and the placement of children in foster care or adoptive homes. The goal of ICWA is the preservation of Indigenous communities and the safety and health of Native children.

In 2023, the U.S. Supreme Court reviewed ICWA through the case Haaland v. Brackeen, which challenged the constitutionality of ICWA based on discrimination. The U.S. Supreme Court ruled that ICWA is constitutional.

The Lost Children

Read The Lost Children , a series exploring the causes, effects and potential solutions to the decades-long overrepresentation of Native American children in South Dakota’s foster care system.

During this time, the South Dakota Legislature considered adopting state-based protections similar to ICWA but decided to hold off until after the Supreme Court ruling. During the 2024 legislative session, the Legislature passed a bill to establish an advisory council to reflect on ICWA proceedings and begin to spark change.

This is the first step in a necessary approach to increasing protections for Indigenous communities, families and children. South Dakota is the only state in the Upper Midwest and Northern Plains that does not have state-based ICWA protections. This demonstrates a lack of attention to ICWA and the issue of the removal of Indigenous children from their homes.

In South Dakota, Native American children account for 13% of the child population but represent 74% of the foster care population. This reflects disparities faced by Indigenous children and their families and the importance of strengthening ICWA protections on a state level.

This is a systemic issue, and it is also deeply connected to the mass incarceration of Indigenous people in South Dakota.

There is a foster care-to-prison pipeline . Children placed in foster care are faced with a disproportionately higher risk of being incarcerated later in life. In South Dakota, Native Americans account for at least 35% of the prison population, but only 9% of the state’s adult population.

This shows that the disproportionate use of foster care placement for Indigenous children may be connected to the disparities in the incarceration of Indigenous individuals. There must be an effort made to conduct research on this connection and to craft policies that protect Indigenous children, families and communities.

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