In South Dakota, Officials Defied a Federal Judge and Took Indian Kids Away From Their Parents in Rigged Proceedings

ACLU client Madonna Pappan hugs her daughter Charlotte. (Photo: Kristina Barker/Rapid City Journal)

During the mid-1970s, Congress confirmed what Indian tribes had been saying for decades: State and local social workers and judges were aggressively using child custody hearings to take Indian children away from their families and tribes and place them in foster or adoptive homes, more often than not with white families.

According to a congressional investigation, between 25 and 35 percent of all Indian children in the U.S. had been taken from their homes — a rate that jeopardized tribal culture if not the very survival of the tribes. Investigators determined that many removals were unwarranted and unnecessary.  In 1978, Congress responded by passing the Indian Child Welfare Act (ICWA), which established minimum federal standards to guide when and how state agencies could remove Native American children from their parents’ custody and their cultural environment.

Nearly four decades later, state and local social workers and judges in Rapid City, South Dakota, are violating the rules in open defiance of ICWA, the Constitution, and now a federal judge. The reason for their noncompliance is unclear but the consequences are striking. Since 2010, more than 1,000 Native-American children in Pennington County, home to Rapid City, have been removed from their families by state welfare workers and placed in foster care, disproportionately in non-Indian homes.

In addition, statistics compiled by the South Dakota Department of Social Services (DSS) show that although American Indians comprise less than 9 percent of South Dakota’s population, 52 percent of the children in the state’s foster care system are American Indians. An Indian child is 11 times more likely to be placed in foster care than a white child in South Dakota.

The child custody hearings typically lasted fewer than five minutes — some were done in 60 seconds — and the state won 100 percent of the time.

In 2013, the ACLU  agreed to help challenge this. We filed a class action lawsuit on behalf of two South Dakota tribes, the Oglala Sioux and Rosebud Sioux Tribes, and on behalf of all Indian families living in Pennington County South Dakota, challenging the state’s child removal procedures of Indian children. The defendants are the presiding state court judge, the state director of DSS, the Pennington County director of DSS, and the state attorney filing the removal petitions.

In March 2015, Chief Federal District Court Judge Jeffrey L. Viken confirmed what our complaint had alleged: State employees were removing children from their homes and then holding hearings in state court within 48 hours, in which parents were not assigned counsel to represent them, were not given a copy of the petition accusing them of wrongdoing, and no state employee was called to testify. Moreover, the parents were not permitted to testify, call witnesses, or cross-examine any state employee. The hearings typically lasted fewer than five minutes — some were done in 60 seconds — and the state won 100 percent of the time.

That’s right, 100 percent.

Often, Judge Viken found children would remain in foster care for two months or longer before their parents were given an opportunity to challenge the removal at a subsequent hearing. The judge held that the removal hearings violated ICWA as well as the Due Process Clause of the 14th Amendment to the Constitution. He invited both the plaintiffs and the defendants to suggest remedies for the violations. However, the defendants not only failed to submit any proposed remedies but largely ignored Judge Viken’s ruling.

In August 2016, Viken convened a compliance hearing, which revealed the scope of the defendants’ inaction. He followed in December 2016 with a 27-page decision finding that the defendants “continue to disregard his prior rulings” and ordered “an immediate halt” to further violations. This time his ruling was accompanied by a formal injunction, which means that failure to comply could result in a contempt of court citation.

During the 1970s inquiry that led to the establishment of ICWA, Congress found that state officials, including judges and social workers, often removed Indian children based on biased and culturally insensitive grounds. To many Anglo-Americans, for example, leaving a child for extended periods of time with a grandparent or other relative may seem like abandonment, but such conduct is accepted and even encouraged on many Indian reservations. It’s worth noting that in his December 2016 ruling, Judge Viken cited the 1954 Supreme Court decision in Brown v. Board of Education, which required the integration of public schools. As we know, that decision was met with explicit and orchestrated defiance from some state officials who opposed it. Judge Viken’s reference to Brown is fitting.

Since the defendants never drew up their own remediation plan, in his recent ruling Judge Viken specified the actions they needed to take in order to rectify past procedural violations and to fully comply with ICWA  and the Constitution. But the defendants prefer to dig in their heels: They are appealing Viken’s injunctions to the U.S. Court of Appeals for the Eighth Circuit in St. Louis. Their briefs are due March 10th.

The South Dakota officials who are resisting Viken’s orders are the ones most responsible for ensuring that Native American children and their families are treated fairly and properly. To that end, they must obey federal law. We intend to make sure that they do.

Stephen L. Pevar’s book, “The Rights of Indians and Tribes” (Oxford 2012), is available here.

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Anonymous

What world do you live in?wow

Anonymous

What world do you live in where ANY president cares about Native Lives... Wake up...Oh and Obama didn't face criticism? WOW!!! #WakeUpPlz

Anonymous

This isn't about former President Obama now. This is flagrant state abuses and then finally revisions to the 1978 ICWA (1979 the federal Guidelines were published) in 2015. However, state based abuses are only going to continue, since the adoption industry which is worth $15 billion in 2015 and is predicting a 10% growth rate every year thereafter. This is why I wrote "An Alternative to the Indian Child Welfare Act" and have been advocating for a sub-child protection system that focuses on voluntary legal Guardianship. Voluntary legal Guardianship is expressly exempt from and does not trigger ICWA. This is something the tribes should consider by beefing up their legal / judiciary systems to handle the surge in Guardianship. Guardianship becomes effective only when the parent(s) can't provide care and parental rights can't be removed. To read more, look here: https://www.linkedin.com/pulse/alternative-indian-child-welfare-act-publication-pending-helen-nowlin

Anonymous

Am I incorrect in thinking "human trafficking" when adoption costs are funds for the government?

Anonymous

The person criticizing President Obama for not interfering in South Dakota state government's handling of these cases is probably the same person who believes gun rights should be decided by the State. Hypocrite whiner.

Anonymous

Great work, Mr. Pevar!

Anonymous

Thank you, ACLU!
I can't imagine being a parent and having my children stolen from my arms.
It is disgraceful to SHOVE American Culture down these children's throats! They DESERVE and have THE RIGHT to RELISH THEIR HERITAGE.
We came as foreigners and conveniently called the indigenous people "savages" so
we could kill them off; steal their land; and place them on parcels of land called reservations. HAVE WE NOT ALREADY DONE ENOUGH TO THE INDIANS? MUST THEY BE ILL-TREATED FURTHER?
I stand with the ACLU. Protect those children; protect their family units; protect their rights to live on the parcel of land we so-called "gave them", however they please.
I have read your lead stories today about these poor children; about TRUMP HAVING IMMIGRANTS ROUNDED UP LIKE ANIMALS, AND TRYING TO KEEP THEM FROM THEIR RIGHT TO A HEARING. The ACLU said it is going to take a lot of manpower, but they are going to HELP THESE PEOPLE JUST SEEKING A BETTER LIFE, AS SO MANY OF OUR FOREFATHERS DID.
I also read about the STOP AND
FRISK PROBLEM.
THANK YOU, ACLU, for being at every UNCONSTITUTIONAL turn that this Trump Administration makes.
I am a widow of a kind, good policeman. I lost Harry to cancer. I haven't lots of "extra" cash, that is for sure. But, you know what else is SURE???
EVERY TIME TRUMP-INDUCED UNCONSTITUTIONAL ACTIONS ARE DIRECTED AT CITIZENS, REFUGEES, MUSLIMS, RELIGIONS OR IMMIGRANTS,

I AM GOING TO MAKE A DONATION, BECAUSE THE ACLU WILL USE IT WITH TOTAL FINESSE, AND "GIVING" gives me a sense of control over the disturbing events. THE ACLU NEEDS OUR SUPPORT TO FIGHT ALL THOSE HORRID THINGS WE STAND AGAINST.
I'M GOING TO GO GIVE $20.00
right now. I'm going to buy some peace of mind for myself, but above all, FOR ALL THE MISTREATED.

Theophania

I am sorry for the loss of your husband and member of the police force.

Anonymous

Well, I just made that $20.00 donation I promised, I have a few quick questions.
Are there those among us who are Professional Winemakers; Oenologists; Opticians; or who hold a SCIENCE DEGREE (of any branch)?????
Are any of you scientists and the scientifically-trained perturbed by Trump's skewed view of our world and its environment? Do you also find it ludicrous for him to appoint non-scientists to positions ALWAYS filled by scientists?
Since he knows nothing of Science, he brushes it aside.
What a pathetic Cabinet.....truly pathetic.
I was a Professional Winemaker; an Oenologist; an Optician and I hold a Degree in Biology, with a concentration in Microbiology, Magna Cum Laude.

All of you Winemakers, Oenologists, Opticians, or ticked-off people of SCIENCE.....
I CHALLENGE YOU TO HELP THE IMMIGRANTS BEING HERDED LIKE CATTLE, with officials trying to not give them their rightful court-hearing; the
"Stop and Frisk" VICTIMS of a process gone BAD; the poor Indian children being swept from their families. I SAY TO ANYONE WHO HAS READ THESE ACLU STORIES TODAY AND BEEN OUTRAGED, YOU ARE ALSO CHALLENGED TO GIVE TO THE ACLU.
It doesn't have to be $20.00, as I donated. It can be more or far less. BUT, every little bit counts; EVERY penny adds up to help the ACLU RUSH TO ASSISTANCE when it is needed.
Giving will give you a heartened feeling that YOU are able to help the disenfranchised. You will be surprised at the feeling of control you get over the terrible happenings because YOU KNOW THAT YOU ARE DISPATCHING THOSE LAWYERS TO THE SCENE.
HAVE A GOOD NIGHT, PEOPLE.
YOUR CIVIL RIGHTS FIGHTS ARE IN THE RIGHT HANDS.
AHHHH......

Anonymous

What's the incentive here? Who benefits?

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