Originally published in Indian Country Today in March 2013.
On March 21, the Oglala and Rosebud Sioux tribes and three tribal members filed a federal class-action suit in Rapid City, seeking a ruling that would compel Pennington County, South Dakota, courts to provide prompt and meaningful hearings when Indian children in the county are removed from their homes because of neglect or abuse accusations.
The lawsuit follows a 16-month American Civil Liberties Union investigation that found Pennington County courts routinely prevent parents in custody hearings from seeing the affidavits making claims against them, from cross-examining those who filed the documents and from introducing evidence on their own behalf, according to ACLU attorney Stephen Pevar. Hearings may be as short as one minute.
This practice causes great suffering and long-lasting trauma, said Bryan Brewer, president of the Oglala Sioux Tribe, which has declared a child-welfare state of emergency. “This abuse of state power has tragic results,” said Brewer.
Plaintiffs and others attending a Rapid City press conference to announce the suit gave emotional accounts of being separated from their children for months or years. “Give my grandson back. I want him back. Please, someone help me,” cried Bernice Spotted Elk, from Wounded Knee, South Dakota, on the Pine Ridge Indian Reservation.
South Dakota’s Native children, families and tribes are impacted by these policies because Indian children are taken in numbers way out of proportion to their percentage of the state’s child population. However, Brewer and others noted, the suit is aimed at greater fairness for all. “This is not just an Indian issue,” said Pevar. “It’s a constitutional issue. No one can afford to have these rights taken away. The Oglala and Rosebud tribes are leading the charge on behalf of all families.”
According to the complaint, Pennington County judges routinely give the state custody of children for at least 50, or as many as 120 days, even going so far as to make dubious claims in their orders. A hearing for plaintiff Madonna Pappan, her husband and their two children lasted about 60 seconds, said the complaint, which further says that the court did not permit the Pappans to see the petition that state officials had filed against them.
At the end of the Pappans’ minute-long proceeding, the judge entered an order claiming—apparently without hearing evidence of this—that “active efforts have been made to provide remedial services and rehabilitative programs” to the Pappans and that taking their children was “the least restrictive alternative available.”
Much is known about the high number of Indian children taken into foster care in South Dakota and their placement in non-Indian homes and group facilities, according to Pevar. However, he noted, the current suit is not about these problems—though they may be alleviated if parents get proper hearings.
This suit is about systemic change, he said: “It’s about procedural fairness, about guaranteeing rights set forth in the U.S. Constitution and the Indian Child Welfare Act. The Supreme Court has long held that when the government takes anything from you, even your driver’s license or your furniture, you get a full accounting. If it’s true in those cases, it’s certainly true when government takes your children.”
The defendants (who are sued in their official capacity) are an official of the state’s Department of Social Services, the Pennington County state’s attorney and the county’s presiding judge. The ACLU investigation did not determine whether Pennington County is the worst jurisdiction in South Dakota but rather that the situation there is very bad, said Pevar. The other plaintiffs’ attorneys are Dana Hanna, of Rapid City, who represents the Oglala and Rosebud tribes in ICWA and other matters, and Robert Doody, of the South Dakota ACLU.
If the state perceives the merit of the suit, it could proceed to a settlement, said Pevar. If the state chooses to fight, the lawsuit moves into the discovery phase, in which case the plaintiffs would be able to take depositions and obtain documents about the number, timing and results of custody hearings in Pennington County.
The ACLU has not ruled out future lawsuits. “We’re in this for the long haul,” said Pevar.
c. Stephanie Woodard.