Monthly Archives: October 2011

Regarding NPR’s accusations

Let’s start with a small one. Darned if this reporter can remember when Bill Napoli was Senate Appropriations Committee chairman. The National Public Radio reporting about Gov. Dennis Daugaard, foster care for American Indian children and Children’s Home Society, however, says Bill was. Mistakes happen.

On a bigger scale, the NPR reports charge that Children’s Home Society received no-bid contracts and “did not compete for the contracts or bid against any other organization.” Daugaard, who prior to being elected governor a year ago was chief executive for Children’s Home Society, including eight years while he served in the part-time role as lieutentant governor, issued a statement pointing out that the non-profit organization won the contracts through a process known as request for proposals — RFP — that is standard practice in state government in South Dakota for many contracts. No other organization submitted a proposal when the requests were made, according to Daugaard.

What the reporting by Laura Sullivan shows repeatedly is a lack of understanding about government operations. One premise of her reporting is that state government is making money by removing American Indian children from homes where there is evidence or accusations of neglect. Actually, placing the children in foster care directly costs the taxpayers of South Dakota, because the state must provide a partial match for the federal payments for foster care. Every dollar spent from the state treasury for foster care is a dollar that can’t be spent for Medicaid or school aid or hundreds of other potential uses. State government is providing the protection of foster care in instances where tribal governments aren’t.

As to the allegation there is bias against American Indian foster care providers — the NPR reporting says 90 percent of American Indian children in foster care in South Dakota aren’t placed with American Indian foster parents — there are two obvious answers. First, in terms of population statistics, having 90 percent of foster-care placements with non-Indian foster parents isn’t out of line, when roughly 90 percent of adults in South Dakota are non-Indian people. If there were more American Indian people willing and capable of qualifying as foster parents, more American Indian foster children would be placed with them. That American Indian children make up approximately half of the children in foster care, when they comprise about 15 percent of the general population, reflects many of the same problems that have led to a disproportionately higher percentage of American Indian people in the state and federal court systems and state and federal prisons.

Second, the American Indian population of South Dakota is scattered great distances, making foster placements more challenging. Which is better: Placing a child from northeastern South Dakota somewhere in southern or western South Dakota, so that child can be with American Indian foster parents, or placing that child with non-Indian foster parents in northeastern South Dakota, so that the child can remain among friends and relatives if possible? Therein rests the dilemma and the challenge.

The piece missing in the NPR series is what tribal governments are doing in South Dakota regarding this matter.

Last, it is worth noting that American Indian people in South Dakota enjoy dual citizenship. They enjoy the rights and hold the responsibilities as members of their respective tribes’ governments, and they enjoy the rights and hold the responsibilities as members of South Dakota’s state government. The State of South Dakota as created by the U.S. Congress overlays the tribal lands and reservations that likewise were designated by the U.S. Congress. How to make this system work effectively is a daily challenge. The conflict over American Indian foster children is but one part. People in the NPR series complain that state social workers are taking tribal children. The social workers will tell you they are acting to protect South Dakota children. Actually, what they’ll probably tell you is they’re trying to protect children, period.

What should be done next is appointment of a team of lawyers who can review the cases of every American Indian child currently in state government’s foster placement in South Dakota. The reviews should determine whether the Department of Social Services and state courts have complied with the federal Indian Child Welfare Act that strictly governs the processes and placements. A second team should be appointed to audit the work of the initial review team and to spot-check a random group of reviews for accuracy. It is apparent we need facts. From those facts can come findings and recommendations. If there are changes that we learn are needed in Social Services, they should be made. If there are changes that we learn are needed in tribal governments, they should be made. If there are changes that we learn are needed in state and tribal courts, they should be made.

As an addendum, it’s also intriguing that on Oct. 21, an organization based in Santa Cruz, California, issued a news release regarding the San Francisco-based reporter’s stories, which had yet to air. “Based on interviews and discussions, the Lakota Peoples Law Project is expecting Laura Sullivan’s award-winning investigative reporting to make some astonishing revelations in her series on the South Dakota Lakota Sioux on NPR on October 25 and 26 on All Things Considered and on October 27 on Morning Edition,” the release, posted on PR Newswire, stated. On the website for The Lakota People’s Law Project the NPR series also was promoted prominently in advance. On the same front page of the organization’s website is this statement: “Over 2,200 Lakota children need us to help them get out of State institutions and back to their relatives.” Last week, Daugaard likewise issued a pre-emptive background paper to South Dakota news organizations and reporters via his spokesman, Tony Venhuizen. In that document, Venhuizen stated, “Everyone who interacted with the NPR reporter commented that she came into her interviews with a clear bias and predetermined outcome, and she was not interested in contrary facts.”

The Lakota People’s Law Project’s top attorney is Daniel Sheehan, who is identified as president and general counsel for the Romero Institute, which is funding the project. According to his biography on the project’s website, “Sheehan has developed the strategy for and is leading The Lakota People’s Law Project civil suit against the State of South Dakota for its violations of the Indian Child Welfare Act.” The website also provides the biography for the project’s tribal liaison, Madonna Thunder Hawk, a member of the Cheyenne River Sioux Tribe. She is identified as an original member of and spokesman for the American Indian Movement and a co-founder of Women of All Red Nations; the biography says she was featured in several documentary films including the recent PBS series We Shall Overcome.

The Lakota People’s Law Project team of advisers is also listed on the website. The three are former U.S. Sen. Jim Abourezk of South Dakota, tribal judge and University of North Dakota law school faculty member B.J. Jones and Donovin Sprague who is director of education at Crazy Horse Memorial.


Did the Legislature err in a sexual-abuse matter?

Over at the always interesting blog there is a must-read post about South Dakota’s laws that limit recovery of damages by victims of childhood sexual abuse. The section of law added by the Legislature in 2010 says no one who has reached the age of 40 may recover damages from any one or any entity other than the person who perpetrated the actual act of sexual abuse. The DakotaWomen post addresses what critics see as the shortcomings of that additional limit. What is most interesting is the actual legislative history of the law. No one testified against the proposal, brought by then-Rep. Thomas Deadrick, R-Platte, on behalf of lawyer Steve Smith of Chamberlain and the late Jeremiah Murphy, a lawyer from Sioux Falls who had been deeply involved defending against sexual-abuse allegations involving the Catholic Church in South Dakota and where appropriate helping the victims. That’s right: No one came forward at the House hearing; no one came forward at the Senate hearing.

Despite the silence from opponents, legislators did gradually amend the legislation, HB 1104. As introduced, it would have set the special limit for any victim of at least 25 years old. The House committee changed the age threshold to 35. That motion came from then-Rep. Rich Engels, D-Hartford, who is a lawyer, and Rep. Kevin Killer, D-Pine Ridge. Engels went on to support the bill in the committee and on the House floor, while Killer opposed it. The House committee endorsed the bill as amended on a 10-3 vote. The full House of Representatives was less decisive, passing the measure on a vote of 42-23. The House opponents tended to be many of the House Democrats and, among Republicans, mostly women.

In the Senate Judiciary Committee, the bill was endorsed 7-0 without change and placed on the consent calendar, meaning it would automatically pass as a routine matter and wouldn’t even be debated by the full Senate unless a senator asked to do so. The three lawyers on the Senate committee, all Democrats — Maggie Gillespie of Hurley, Nancy Turbak Berry of Watertown and Scott Heidepriem of Sioux Falls — and all long shown to be smart people generally, supported the bill and supported the consent calendar treatment.

Behind the scenes something began afoot, because the full Senate decided to take further action on the bill, adopting an amendment from Sen. Cooper Garnos, R-Presho, to change the age threshold to 40. The Senate vote for the Garnos-amended bill was 26-7. This time, Turbak Berry opposed it, while the other Republican and Democratic lawyers in the Senate supported it. Because of the Garnos amendment, the bill needed to return to the House for a decision whether to agree with the Senate version. House members voted 52-14 to concur; this time the only opposition came from House Democrats.

What is most intriguing is that a bill which dealt with legal damages and sexual abuse drew no testimony from anyone other than the two lawyers who wanted it — and that a bill which had no opponents in public was amended twice in significant ways — and that nearly every lawyer in the Legislature but two, Turbak Berry and Rep. Marc Feinstein, D-Sioux Falls, voted for the bill on final passage in each chamber. This seems to add credence to the old saying that life sometimes works in mysterious ways.

The costs of losing

The modifications made in the AA high school football playoffs didn’t go far enough from an expense perspective. The results of Tuesday night’s first round, in which eight teams played and four teams received byes, showed once again the futility of the current system. The four favored teams, all playing at home, won. Rapid City’s two teams, Stevens and Central, traveled across the state to play at Brandon and Brookings. Pierre made the ride down to Yankton. Aberdeen Central had the shortest of the four trips, going to Mitchell. The combined scores: Favored home teams 148, traveling teams 63. Next round the four bye teams — aka the four Sioux Falls teams — play the role of hosts. Will the combined margins of victories be greater or smaller than the first round’s 85? The SDHSAA might want to consider setting a simple bar for high school football playoffs: A team must be .500 or better to qualify.

Lawmakers select agencies for 2012 review

The Legislature’s Executive Board decided today to review the state Department of Health and the Human Services Center in 2012 as the next agencies in the ongoing process. The Bureau of Finance and Management is the only agency that hadn’t been reviewed yet. Making the case to take a look at BFM too in 2012 was Rep. Gene Abdallah, R-Sioux Falls. Half-agreeing was Sen. Larry Tidemann, R-Brookings, who suggested waiting one more year on BFM until all of the federal stimulus money has moved through state government’s budget. “Good point,” Rep. Chuck Turbiville, R-Deadwood, the board’s chairman, said. The motion to review Health and HSC passed on a voice vote with Abdallah dissenting.

Legislators to fill Dakota Corps slots

Rep. Chuck Turbiville, R-Deadwood, asked Senate President Pro Tem Bob Gray, R-Pierre, and House Speaker Val Rausch, R-Big Stone City, for three names apiece — two Republicans and one Democrat — from their chambers as possible appointees to the Dakota Corps scholarship selection board. Turbiville, who is chairman of the Legislature’s Executive Board, said he plans to send the program’s annual report to the six legislators so they can better determine their levels of interest. “My thought is we need to make this more public because it is an excellent program. It is very well run,” Turbiville said. The program receives more applications than there is funding. The program aims at higher-demand occupations that fill critical public needs. “We will have a couple of names for you at our next meeting.” Turbiville said he hopes more money can be raised from donors for the privately funded, state administered program. During the transition from the Rounds to the Daugaard administrations, and the transfer of the Dakota Corps scholarship to the Board of Regents for management purposes, it was discovered that the two legislators seats went unfilled during the past year. Among those who have served in the past is Sen. Jim Hundstad, D-Bath.

The Tornow “no”

Rep. Shawn Tornow of Sioux Falls was the only Republican who voted Monday against the redistricting plan for the Legislature. His reason was procedural. He explained his position afterward: The legislation needed an emergency clause so that it could take effect immediately or at least before Jan. 1 when candidates for the Legislature can start their petitions. The normal 90-day waiting period for the law to take effect will instead run through at least Jan. 23. The upshot is candidates could be circulating petitions before the new districts take effect, which could raise legal questions about the validity of their petitions. While Secretary of State Jason Gant reportedly advised the redistricting committee last month that the January gap shouldn’t be a problem, there are more legislators than just Tornow who are concerned about whether the secretary of state can actually provide that flexibility.

An emergency clause requires a two-thirds majority in each of the House and the Senate, and the redistricting bill passed Monday by more than two-thirds in each chamber. The political risk for Republicans in seeking an emergency clause was that a small group of Republican legislators who didn’t like the plan could have tried to hold the bill hostage to get changes. The other criticism circulating among some other (non-Rep. Tornow) House Republicans is that debate was ended in the House before they were allowed to speak.

Senate adopts redistricting plan without changes

The state Senate just voted 31-4 for final passage of the Legislature’s new boundaries for its 35 districts that will be used for the 2012 through 2020 elections. The Senate rejected four amendments and adopted the plan as recommended last month by the redistricting committee. The debate lasted 55 minutes.

House passes amendment-free redistricting plan

The state House of Representatives voted 50-18 along political party lines this afternoon for the redistricting plan as it was recommended by the Legislature’s committee. None of the six amendments offered by minority Democrats in the House was accepted. The measure now moves to the Senate for consideration yet this afternoon. House members worked two hours and a few minutes on the debate and final passage.

I’ll second the motion for scrambled eggs

Early risers, they are, the members of the Legislature’s committee reviewing the state Department of Human Services. The third and final meeting of the New Breakfast Club today was set to begin at 7:30 AM, so as to finish by 8:30 AM, when the Legislature’s redistricting committee holds its presumably last, final public hearing before the full Legislature assembles at 10 AM to conduct its special session on redistricting. Back to the review panel: Just as an aside, this scribe can’t recall another committee where the women so clearly outnumber the men. Chaired by Sen. Jean Hunhoff, R-Yankton, with Rep. Jacqueline Sly, R-Rapid City, as vice chair, the panel’s members total seven women and four men. The other interesting sidelight is that only one of the 11 also happens to serve on the redistricting committee. For Sen. Jim Bradford, D-Pine Ridge, the day promises to be long indeed.

The 1893 education requirements

We came across this nugget the other afternoon while looking at some other old laws. In 1893 the Legislature adopted a law that required South Dakota schools to provide instruction in “reading, writing, orthography, arithmetic, geography, English grammar, history of the United States, physiology and hygiene, with special instruction as to the nature of alcoholic drinks and narcotics and their effects upon the human system, and civil government.”