Three Indian parents, the Oglala Sioux Tribe, and the Rosebud Sioux Tribe filed a class-action lawsuit to challenge the continued removal of Indian children in Pennington County, South Dakota from their homes based on insufficient evidence and without proper hearings, in violation of the Indian Child Welfare Act of 1978 and the constitutional right to due process.
Congress enacted ICWA to put in place federal safeguards for the removal of Indian children from their homes to both protect the interests of Indian children and give Indian tribes a voice in the process, because of an alarming number of Indian children who were removed from their homes and their tribes. Family separation can be particularly difficult for Indian children because not only are children separated from their parents, but because they are often placed with non-Indian families, they also experience separation from their culture.
When children are removed from their parents based on an allegation of neglect or abuse, a substantive hearing should normally be held in order to determine whether their children should continue to be separated from them. Instead, the lawsuit contends, Pennington County officials hold a cursory hearing in 48 hours that sometimes lasts no more than a minute, where all of the documents are kept a secret from the parents and they are not permitted to introduce any evidence, and their children are then removed for a minimum of 60 days and usually 90 days, according to the complaint. Most parents are also unfairly coerced by the court to "work with" the state Department of Social Services (DSS), which essentially authorizes the department to hold the children for at least two months under whatever terms DSS wants. DSS rarely seeks to assist the family.
The ACLU filed the lawsuit in 2013 along with the ACLU of South Dakota and Dana Hanna of the Hanna Law Office in Rapid City. The lawsuit was filed on behalf of three parents in Pennington County, as well as the Oglala Sioux Tribe and the Rosebud Sioux Tribe, which are federally recognized Indian tribes with reservations in South Dakota.
Status: On March 30, 2015, in a sweeping victory for Indian families, a federal court ordered South Dakota officials to stop violating the rights of Indian parents and tribes in state child custody proceedings on several grounds.
In a 45-page ruling, Chief Judge Jeffrey L. Viken wrote that "Indian children, parents and tribes deserve better," agreed with all seven of the ACLU's claims, and ordered the state to:
- Provide parents with adequate notice prior to emergency removal hearings
- Allow parents to testify at those hearings and present evidence
- Appoint attorneys to assist parents in these removal proceedings
- Allow parents to cross-examine the state’s witnesses in the hearings
- Require state courts to base their decisions on evidence presented during these hearings.
The court also found that the state violated the Indian Child Welfare Act (ICWA), a federal law designed to ensure the security and integrity of Indian tribes and families. The law is intended "to curb the alarmingly high rate of removal of Indian children from Indian parents."
Victory!March 31, 2015
In a sweeping victory for Indian families, a federal court ordered South Dakota officials to stop violating the rights of Indian parents and tribes in state child custody proceedings on several grounds.
Lawsuit Can ProceedJanuary 28, 2014
A federal court ruled that the lawsuit can proceed to trial.