ICWA and Foster Care in South Dakota: What Every Foster Parent Needs to Know

South Dakota has a foster care population unlike almost any other state in the country. While Native Americans make up roughly 11% of the state's general child population, they represent approximately 75% of children in foster care. This means that if you become a licensed foster parent in South Dakota — regardless of your background — there is a high probability that you will care for a Native American child, and that ICWA will govern the placement.

Most prospective foster parents encounter ICWA as a legal term they don't understand. Here's what it actually means for your daily life as a foster parent.

What ICWA Is

The Indian Child Welfare Act (ICWA) is a 1978 federal law that recognizes the unique political status of Native American children and establishes minimum federal standards for the removal and placement of children who are tribal members or eligible for membership in a federally recognized tribe. It was enacted in direct response to decades of state-driven practices that systematically removed Native children from their tribes — often into white foster and adoptive homes — at rates that constituted a cultural crisis.

ICWA is not a race-based law. It applies based on a child's political membership in, or eligibility for membership in, a federally recognized tribe — not race or appearance.

South Dakota has nine federally recognized tribes: the Oglala Sioux, Rosebud Sioux, Cheyenne River Sioux, Standing Rock Sioux, Sisseton Wahpeton Oyate, Crow Creek Sioux, Lower Brule Sioux, Yankton Sioux, and Flandreau Santee Sioux. Each tribe has its own child welfare program that plays a direct role in placements involving their members.

The Placement Preference Hierarchy

When a child is determined to be an "Indian child" under ICWA (25 U.S.C. § 1915), the law mandates a specific order of placement preference that the court must follow. DSS cannot simply place the child wherever there's an available licensed home.

The ICWA placement preference order:

1. Extended family — grandparents, aunts, uncles, adult cousins, and other relatives of the child
2. Tribal members — other families within the child's specific tribe
3. Other Native families — families from any other federally recognized tribe
4. Non-Native foster homes — considered only as a last resort

If you are a non-Native foster family, you are in the fourth preference tier. This does not mean you cannot receive a Native American child — it means that available placements in the higher preference tiers must be exhausted first, or a court must find "good cause" to deviate from the hierarchy.

What "Good Cause" Means

Courts in South Dakota can deviate from ICWA placement preferences when there is documented "good cause." Established grounds for good cause include:

• The child has specific medical or behavioral needs that cannot be met in a higher-preference placement
• The available preferred placements are geographically too far for the "active efforts" reunification work to be feasible
• The child is of sufficient maturity (typically 12 or older) and expresses a preference for a specific home

Good cause is not automatic and not assumed. It requires a court finding with specific documentation. If you are receiving a Native American child in a non-Native home, your caseworker should be able to explain the basis for the placement.

Active Efforts: What Non-Native Foster Families Must Do

One of the most consequential ICWA requirements for foster parents is "active efforts." This is the obligation placed on the state — and, practically, on you as the foster parent — to provide meaningful services aimed at reunifying the child with their birth family and preventing the permanent breakup of the Indian family.

Active efforts go beyond "reasonable efforts" (the standard for non-ICWA cases). They require active, affirmative steps: facilitating family visits, working with tribal social services, connecting the birth family with appropriate support programs, and documenting all of it.

For you as a foster parent, active efforts mean:

• Supporting and facilitating visitation with birth parents, even when travel to reservation communities is required
• Maintaining and supporting the child's cultural identity and tribal connections
• Engaging with tribal ICWA coordinators when they are involved in the case
• Not obstructing or passively undermining reunification efforts

The "Spirit of ICWA" — maintaining a child's heritage, community connections, and tribal identity — is not just a legal requirement. It directly affects a child's long-term wellbeing, particularly when reunification is the goal.

Tribal Notification and Court Involvement

When a child who may be an Indian child is removed from their home in South Dakota, DSS is required to notify the relevant tribe within 10 days (or sooner in emergency situations). The tribe has the right to intervene in the court proceedings involving that child.

This means that in foster placements involving Native American children, tribal representatives may be present at court hearings, tribal courts may assert concurrent jurisdiction, and tribal child welfare staff may visit the placement or make recommendations to the court. This is not adversarial — it is the tribe exercising its legal rights and fulfilling its responsibility to the child's community.

Nine tribes in South Dakota have their own IV-E agreements with the state, allowing them to license their own foster homes and manage child welfare cases under tribal jurisdiction while receiving federal funding through state pass-through mechanisms. If a child you're fostering has their case transferred to tribal jurisdiction, this will be communicated through your caseworker.

Tribal Court Background Checks

For placements involving tribal members, DSS or the tribal child welfare agency may conduct a search of tribal court records in addition to the standard DCI and FBI checks. Tribal court records are not automatically shared with state or federal databases due to jurisdictional separation — a conviction in tribal court may not appear anywhere else.

Your licensing worker will advise if tribal court checks are required in your situation.

What ICWA Means for Foster-to-Adopt

ICWA significantly affects the foster-to-adopt pathway when the child is Native American. Even after a child has been in your home for months, an ICWA placement preference challenge can result in the child being moved to a tribal relative who has since become available.

This is painful. It is also the law, and it reflects a considered policy judgment about the long-term importance of tribal and cultural connections to a Native child's identity.

If you are a non-Native family fostering a Native American child under a concurrent planning arrangement, your caseworker should have an honest conversation with you about the ICWA dynamics in that specific case — including whether extended family or tribal placements were exhausted and whether the tribe has been engaged. Going in clear-eyed about this reality is not pessimistic; it is the only way to make a fully informed commitment.

ICWA and the South Dakota DSS Process

The South Dakota DSS ICWA unit in Pierre coordinates compliance oversight for tribal placements. The tribal agent/director directory is published on the DSS website and includes contact information for each tribe's ICWA coordinator.

PRIDE training in South Dakota includes a dedicated session on ICWA, cultural identity, and tribal competence. That training covers the legal framework. What it doesn't always cover is the practical day-to-day reality of being a non-Native family fostering a Native child: the cultural cues, the family structure (where a child may have multiple "grandmothers" who are culturally significant but not legally recognized), and the relationship with reservation communities.

The South Dakota Foster Care Licensing Guide includes a plain-language ICWA section covering placement preferences, active efforts requirements, and what to expect when a tribal court becomes involved — along with the full licensing roadmap for both urban and rural South Dakota families.

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