In the middle of a lengthy speech to Native American tribes last week, Attorney General Eric Holder planted the Justice Department firmly on the side of tribes against states, as the tribes struggle to keep their families together.
Holder said the Justice Department was "redoubling" the department's support of the Indian Child Welfare Act, a nearly four-decade-old law that attempts to keep Native children close to their relatives and tribes, even in cases where they may have to be removed from their parents.
Holder said the department is hiring more attorneys and working with other federal agencies in an effort to "protect Indian children from being illegally removed from their families," which he said was done sometimes "by those acting in bad faith."
Those possible bad actors are state social service agencies and even judges who push for the removal of Indian children in cases where removal may not be warranted, or they fail to place Native children with their relatives, their tribes or Native American foster families when they are removed.
An NPR investigation in 2011 found that in South Dakota Native American children were being removed from their families at rates far higher than the national average and that the vast majority of them were being placed in non-Native homes or group homes.
Holder said the department will begin culling through state court cases looking to file briefs "opposing the unnecessary and illegal removal of Indian children from their families and their tribal communities."
The department is also hoping to work with other federal agencies to better train social service agencies and state judges on the law.
This summer the Justice Department intervened for the first time in its history in a federal district court case in South Dakota, concluding that the state has violated the rights of Native American parents.
Two of the state's largest tribes argued that the state has removed children in hearings where parents were rarely allowed to speak and often lasted less than 60 seconds. The children were then placed indefinitely in largely white foster homes.
Stephen Pevar, a senior staff attorney at the American Civil Liberties Union, which brought the suit along with the Oglala Sioux and Rosebud Sioux tribes, called the hearings "kangaroo courts."
"There was nothing — nothing — that any of the parents did or could have done," Pevar said. "It was a predetermined outcome in every one of these cases."
In one case cited in the lawsuit, children were taken away from a mother who the state said was neglectful. The father, who was then divorcing the mother, appeared at the hearing and told the judge he was the father and was eager to take the children home. But the judge placed them in foster care anyway.
In another example, a mother returned home from work to find her children had been taken away when her babysitter got drunk. She went to the hearing to explain she was the mother. Her children were also placed in foster care.
Holder said the department is now stepping up to "take appropriate, targeted action to ensure that the next generation of great tribal leaders can grow up in homes that are not only safe and loving, but also suffused with the proud traditions of Indian cultures."