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.

Add a comment (41)
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Anony

I am surprised that in eight years of President Obama's term he did not do anything about this. We criticize every little misdeed of President Trump but we seem to have given President Obama a free pass.

Anonymous

The US filed a brief supporting the tribes in this case, and in the last administration, did a lot of other things to support compliance with the Indian Child Welfare Act. So that isn't a fair criticism.

Anonymous

Wow... Just wow. THAT uneducated bullcrap is what you comment on this article with. Shame on you and your lack of research.

Anonymous

Wake up. Don't be duped.

Anonymous

What would you have had Obama do? This matter is an ongoing legal case in federal court. The POTUS cannot interfere. Separation of powers dies not allow the POTUS to interfere in an ongoing legal matter.

Enjay

I'm sure Donald Trump will rush to these kids' rescue. His first month in office has made his positions crystal clear. No doubt he will be a champion of justice for minorities (I mean, white minorities, but yeah).

Anonymous

The tag line explicitly states no partisan comments

Anonymous

This doesn't have anything to do with either president and it is a legal effort that has been going on for some time.

Anonymous

Follow the political career of Obama closely. He tried to do many things but the GOP always tried to stop him. He was lucky if he could go to the bathroom. I know that is an over exaggeration but nonetheless, it was the first time in history that elected officials sat on their butts and refused to work. Don't go back and criticize now. We need to live in the now. That's all we get. The past if gone.

Anon08

Firstly, I don't see anything about not posting any partisan comments...? I understand that such can be deleterious towards effectively discussing certain subjects without meandering into anger, America standing as divided as it is now, but I also don't think it's explicitly in the site's terms...
"The only postings that we ask that you refrain from posting and that we cannot permit on our website are requests for legal assistance and postings that could cause ACLU to incur legal liability."

Secondly, while Obama did accomplish positive ends in legislation, like the establishment of the ACA (which not only allows many Americans to literally cheat death in this economic depression, but also for organizations such as the CDC to continue operation [3--pardon that these are out of order, but I am lazy]), Obama did happen to allow the repeal of habeas corpus, which directly impacts civil rights. I don't think he should be needlessly defended where he has negatively impacted the rights and opportunities of American citizens. Impunity in that regard is detrimental to a holistic understanding of government policies. What's worse than that, however, is to consider what the new administration (and those following suit with its rhetoric) could accomplish by abusing the lack of habeas corpus. (1) Luckily what happened in Arizona didn't come to pass (referring to the bill, here) otherwise the advancements towards the complete denial of civil rights would become even more normalized. (2)

(1) https://www.rt.com/usa/obama-ndaa-detention-president-288/
(2) http://bigstory.ap.org/article/376138ae0f7f4c2584b27afe013d4782/arizona-...
(3)https://www.hhs.gov/about/budget/budget-in-brief/cdc/index.html

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