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

As a psychotherapist who works with young people, it is almost always preferable that if a child's welfare would be improved or safeguarded by removing them from their parent or parents, that an appropriate family member who is already supporting that child is the best alternative. Keeping a child within their family is best whenever possible. Fostering outside the family or community should only ever be the very last resort, and then the child must be supported in other ways throughout their fostering experience. What is going on in South Dakota is barbaric. Indiginous peoples have been treated this way around the world and over the centuries. Supposedly we live in a world now where people's consciousness has been raised about this as an issue, but apparently not. The people who continue to perpetrate these attrocities should be removed from their posts and put in prison.

Susan

Has South Dakota considered codifying the ICWA in to their state statutes? That's what Wisconsin did when they were found to be in noncompliance. We created a documentary about it to inform the public about the lasting effects on the Native American child who is removed from their home and culture and the impact on their tribal culture. The film was also structured to provide a road map for other states considering codifying the federal law into their state statues. It is available to view for free on YouTube. https://www.youtube.com/watch?v=ZCLUbS4FxWo&t=67s

Bill Michtom

This is genocide.
Convention on Genocide
Article 2 (final item)

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Michael

Why doesn't the Federal Judge issue civil warrants, or even criminal, for non-compliant officials?

Anonymous

Leave it to the racist ACLU to o lyprovide half the story! Why aren't they e to ING more often than others there IS a valid lawful reason why the children are removed to begin with. Alcoholism drug use unemployment neglect child abuse & sexual assault numbers are higher among Native American Indians on the reservation than elsewhere.
The ACLU can paint this loving picture of children being raised by all the members of the tribe, going from home to home, but if you've ever witnessed this fist hand you have no idea the negative impact this has on a child. Imagine at two yrs old going from house to house, being dumped off and your mom leaves for weeks at a time. Dad is not in the picture. You're two years old and have a developmental delay like autism, you can't speak to say you're hungry & when you do get food you can't really feed yourself yet so you go hungry. Instead of getting milk you're given pop or kool-aid and only after someone in the house of six adults can get off their behind and realize you might be thirsty after they see you drink from a pop bottle with cigarette butts in it. Kids crawling around in the filth and dirty floor because grown adults are too lazy to get up let alone clean the house. You have no idea when/if your mom is coming back because you're two and have no concept of time. Nobody knows what a structured environment is or how important a simple schedule is esp to a small child because NOBODY PAYS ATTENTION TO THE CHILD!
The ALCU thinks the tribe should have a say in this issue.... for ever one case of an adult being bitter because they didn't know their heritage there are ten cases of children being hurt even dying because of the ICWA being enforced because of a foster family wanting to adopt the Indian foster child who has been with them since 1 yo. The tribe didn't care until the white family started adoption proceedings. Google ICWA cases https://www.google.com/url?sa=t&source=web&rct=j&url=https://thinkprogress.org/why-a-conservative-legal-organization-is-desperately-trying-to-kill-the-indian-child-welfare-act-762ba8e62d5b&ved=0ahUKEwjomcSM7LrSAhUT24MKHWVuAN4QFgg9MAs&usg=AFQjCNGgxKTBnnTSEDPpp0ZcUgLa8C2Z8g&sig2=CNxeQuhoOWfBl_GXuRqnYQ just one example but again more examples of the ICWA harming children more than helping them.

Maybe the tribes should just be honest for once: this isn't about heritage this is about Tribe population numbers and how much MONEY they'll receive from the Federal Government

Janice Mitich

Both the Dakota States seem to be highly prejudiced towards Native Americans , and their state governments seem to have little problems with violating Civil Rights, Human Rights, the Bill of Rights, and the US Constitution. If this was happening to other American children, you would be able to hear the uproar across this nation. The protests at Standing Rock, N Dakota, has made millions of people around the world aware of the mistreatment of indigenous peoples. As soon as my SS check arrives, I'm donating to the ACLU.

Anonymous

I was a child removed from my Anishinaabe family when I was 5. My sister and I were put into a white foster home for over 2 years in 1967. It becomes a long road to trying to recover ones identity once removed. Anishanaabe children need to be with family. Immediate or extended. Loss of identity contributes to a depressive state, in which I have been fighting for many years. It's hard to understand who you are, when as a young child you are torn from your family. Stereotypes of Anishanaabe families and other indigenous people, is just wrong. We are all different and there will always be misunderstandings of how different people live. Trying to assimilate our children to become an all white race is ludicrous.
"The mind will always follow the heart."

Peter

In 1997 the Australian Human Rights Commission published a report on longstanding practices of removal of Indigenous children from their parents at: http://www.humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/publications/bringing-them-home-stolen

This report might resonate with Native Americans.

Anonymous

Why don't you start removing judges .i would make documentary ,by surviors (adult children) to expose thus injustice .Dimilar practices exposed in Australia ,against indeginous people

Anonymous

When I read statistics about how many children have been taken from their homes or placed in foster care, I have to wonder WHY... but none of my questions are addressed, or even remotely wondered about in the article. Some vague idea of because of race or culture is pure nonsense, and not supported with fact. The real reasons need to be addressed... and it is usually poverty and education. THAT is a fact that is SADLY NEGLECTED in this article...

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