Why Are These Indian Children Being Torn Away From Their Homes?

Imagine entering family court and knowing that what's at stake is the person you hold most dear – your child. Now imagine having a judge tell you that he's removing your child from your custody, from your home. When you ask him why, the judge's replies, "I honestly can't tell you." The judge then signs an order giving custody of your son to Social Services.

You might think that such a court proceeding could never happen in the United States – but you'd be wrong.

It happened not long ago to the father of an American Indian child in South Dakota. What's more, many similar hearings in which Indian children are removed from their homes for no reasons given to the parents occur at least 100 times a year in Rapid City, South Dakota, alone.

Congress passed the Indian Child Welfare Act (ICWA) in 1978 in an effort to stop American Indian families from having their children removed by state and local officials for invalid and sometimes even racist reasons. Yet 36 years later, Indian children in South Dakota are 11 times more likely to be removed from their families and placed in foster care than non-Indian children.

The ACLU filed a lawsuit in March 2013 in federal court on behalf of the Oglala Sioux and the Rosebud Sioux tribes in South Dakota and on behalf of a class of all Indian families living in Rapid City, South Dakota, the state's second largest city. We sued state and local officials who, we contend, repeatedly violate ICWA.

We recently examined 120 transcripts of initial custody hearings – known as "48-hour" hearings – held during the past four years involving Indian children. Nearly 100 percent of the time, Indian children were removed from their homes in those hearings. The average length of time those hearings took was less than 4 minutes. Within that time, of the six different judges that oversaw the hearings, not one judge ever told one Indian parent that they have a right to contest the state's petition for temporary custody of their children in the hearing on the petition.

During those hearings, the parents were not told the reasons for the removal, not provided with an attorney, not allowed to submit any evidence, and not allowed to cross-examine the Social Services worker who had submitted an affidavit against them. In most cases, the parents were not even allowed to see the affidavit.

And what were the parents in these hearings "guilty" of? Here is a snapshot of some of the cases discussed in the transcripts:

  • A mother abused by her boyfriend lost custody of her child even though the abuser was not being allowed to return to the home. Before the judge's decision, the mother pleaded with the judge not to punish her for what the abuser had done.
  • A father going through divorce was denied custody of his children solely because his estranged wife got into trouble with the police, even though no evidence was introduced suggesting that the children would be at risk staying with the father.
  • A mother lost custody of her daughter merely because the daughter's babysitter had become intoxicated, without any showing that the mother knew that such a thing might occur.
  • A father who tried to discuss the merits of his case was interrupted by the judge and told that the details of child custody removals were not to be discussed in 48-hour hearings, and then the judge signed an order removing the child from the father's custody.

Our lawsuit seeks to stop state judges and social workers from continuing to remove Indian children from their homes unless the parents are provided with basic guarantees of due process of law and rights afforded 36 years ago in ICWA These include the right to a fair and prompt hearing, the right to notice of the charges against them, the right to an attorney, the right to present evidence, and the right to cross-examine the state's witnesses.

Based on the 120 transcripts, we recently filed motions asking the federal court to rule that South Dakota officials engage in a pattern and practice of denying Indian families and Indian tribes their basic rights to fairness under ICWA and the Constitution. And next month, the UN Committee on the Elimination of Racial Discrimination will consider a report submitted by the ACLU on U.S. failure to meet its international treaty obligations to end pervasive and institutionalized discrimination, including the lack of due process in American Indian child custody proceedings in South Dakota.

Ultimately, we hope to restore justice to a group of people who our legal system has repeatedly failed.

Learn more about American Indian rights and other civil liberty issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

View comments (14)
Read the Terms of Use

Georgette Pickarski

Honestly, the same things, in the same way, happens to white American families every single day. No court has to tell you why they are taking your children away....


The answer in 2 words, psychiatry and psycho pharmacology, $-

"Please Keep Sharing and become a Member at http://lakota.cc/1kvf8ka to help create a foster care system run by Lakota, for Lakota and end the corrupt practices of the state of South Dakota.

Illegal over-drugging of Lakota children. Many Lakota children in foster care are being involuntarily administered as many as five adult psychiatric drugs every day, including: Zyprexa, Geodon, Prozac, and Abilify—all of which are not allowed, by the FDA, to be administered to children without consent from their parent or guardian. The use of such powerful anti-psychotic pharmaceutical drugs on Indian children by the State of South Dakota has, in fact, increased by over 1300% since the year 2000! Due to this, and other problems with state-run foster care, when these Indian children “age out” of the state foster care system in the State of South Dakota at the age of 18, over 63 percent of these children are, by the time they are 20 years old, either homeless, in prison, or dead.

Children should not be drugged into submission and made to feel like zombies because they have been taken from their families and their communities. This must stop. Please show your support by becoming a member!"-via Jim Keiser, pg admin, Mental healh/psychiatric watchdog & reform activity- https://www.facebook.com/jpkeis


ACLU, shouldn't the term be Native Americans? This is clearly not a report about India.


ALCU really?? Should the term be Native American? This is clearly not a report about children in India.

susan axtell

When is this bs going to end.


First, this isn't a political correctness issue, it's one of definition. Please stop calling Native Americans "Indians". I had thought that actual Indian families (who are here in the states in large numbers for work, immigration) were being targeted.

Now, while the race or nationality of the family doesn't matter in this type of persecution, this should underline the fact that Native Americans should never have been called Indians, and should not be referred to them as now. Completely different culture, region, language, etc.

Charvak Karpe

Can we stop calling them Indians already, especially in the headline?


I know it sounds crazy... but maybe.... It's about dismantling these families - because after a while - who will be left to carry on - to keep up the rights to what land they have left.... their rights - period. The kids are taken - they don't learn from their families and tribes - they go different roads than the tribe and family. The land, the rights - all of it... who will be left to fight for it? The systematic dismantling of a people. Slow but sure process. That's the general idea of what I think it might be. Yes... I do think our government is capable.




As the adoptive mother of a child we found out MUCH later was Native American from the family who apparently didn't recognize indicators, I am sensitive to this issue. My son is 26 and quite successful. I am quite proud of him. I think you need to examine the issue of codependency and the outcomes on children because of the effect this has on their resilience to coping later. Will they perpetuate a cycle of abuse or will they lead their families to a healthier way of life when empowered to do so? One can only hope and pray they make the right decisions. Native Americans are a very generous and lovingly supportive culture with an originally very healthy and natural lifestyle. Examine what is different between our culture and what is holistically appropriate to the situation, don't you think?


Stay Informed