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Swept Away, Part 2: Suing South Dakota to Protect Native Children

From the beginning, he sensed that something was off. Soon after Rapid City attorney Dana Hanna saw two Indian parents lose their children into the South Dakota foster system in less than a minute during a routine court appearance in October 2011, he began asking questions and requesting records from the Pennington County Court Clerk's office.

RELATED: Swept Away: South Dakota's Native Children Denied Due Process in Custody Cases

Initially, his assistant had gone to the courthouse to obtain case numbers, transcripts and dates of the 48-hour hearings on behalf of his clients, the Oglala and Cheyenne River Sioux Tribes in Pennington County Indian Child Welfare Act (ICWA) cases. The requests were rejected by the court clerks, who refused to hand over any information, in spite of the fact that accessing these documents is commonplace in the course of legal proceedings for parties to a case. Word came back to Hanna that the clerks would not release the transcripts to anyone other than he.

Hanna then went to the court clerk's office himself to retrieve what should have been a routine request. He was acting directly on instructions from his clients by attempting to discover exactly how many tribal members, and which ones, were being affected by the 48-hour hearings in which hundreds of children were disappearing into state custody.

Again, he was denied, even though he was the attorney of record for the tribes, both of whom had filed Motions of Intervention on behalf of their members in ICWA cases pending before the court in Pennington County.

Hanna, by now becoming aware of what he suspected was a growing, systemic problem within the state, had already been in contact with the American Civil Liberties Union (ACLU). After his requests for court documents and transcripts were refused, he decided to meet with Judge Jeff Davis, the presiding judge for the Seventh Judicial Circuit in South Dakota, to discuss the procedures for these 48-hour hearings and to ask again for the records he had been requesting for weeks.

Hanna, who attended law school at the University of Nebraska, is a veteran litigator who spent 15 years as a criminal defense attorney in New York City before moving to South Dakota. He and Davis knew each other professionally, though they had only occasionally met in court. According to Hanna, Judge Davis and his clerk were cordial, professional and very courteous during their meeting.

“We were trying to avoid filing a lawsuit, so I met with Judge Davis once in his chambers to discuss the Tribes’ objections to the way 48-hour hearings were handled in general,” says Hanna. “I respectfully advised him that we wanted to come to an agreement with the court and the state as how these hearings should be handled in a way that would not give DSS unfettered discretion to take Indian children into state custody. And I respectfully advised him that unless we could agree on some changes in the procedures, the Tribes would have to seek relief in a higher court, either the State Supreme Court or federal court or both.”

Hanna says that during this meeting, it became clear to him that Judge Davis had no real interest in pursuing changes in court procedures in regards to the 48-hour hearings.

The conversation then turned to the records request, with which both the judge and the attorney had had a point of contention. “We also discussed his order denying the Tribes what I believed was their statutory right to order transcripts of the 48-hour hearings in which the Tribes were parties in the case,” says Hanna, whose requests for such transcripts had been repeatedly denied.

“Judge Davis had ordered that the Tribes could only order transcripts of 48-hour hearings of cases that were still pending in court, not cases that were closed, although state statutes gave the Tribes and any other parties the right to get court records—which would include transcripts of hearings—in abuse and neglect cases in which they were parties. He would only allow me to read those transcripts in his chambers, but would not allow me to have a copy of any hearing transcripts or take notes while reading them.”

“The discussions [with Judge Davis],” Hanna adds dryly, “were not fruitful.”

The Hard Way

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Four months later, Stephen Pevar's flight touched down at the Sioux Falls Regional Airport in South Dakota. After nearly six months of research, conference calls and discussions with a number of Indian law and civil procedure experts across the country, he had come to discuss a state-tribal compact in regards to South Dakota's alleged violations of the Indian Child Welfare Act and the federal Due Process Clause in removing Native children from their homes.

Pevar, national staff counsel for the American Civil Liberties Union, had flown in from Connecticut, while Hanna had driven across the state from Rapid City to pick him up at the airport. The two men had scheduled a meeting with J.R. LaPlante, who had been appointed in 2011 by Governor Dennis Daugaard as Secretary of South Dakota Department of Tribal Relations.

LaPlante, who is a member of the Cheyenne River Sioux Tribe, is also an attorney and former tribal judge. In his official capacity as a cabinet-level member of Daugaard's administration, he had agreed to meet with Pevar and Hanna in Vermillion the following day, March 14, 2012.

As Pevar and Hanna drove to Vermillion, they discussed the case at length, strategized their approach with the state, and how they intended to handle the meeting and the subsequent course of action, should the state refuse to address the litany of issues that were on the table.

“There's a provision in ICWA [25 U.S.C. 1919(a)] that allows states to enter into written agreements [with tribes],” says Pevar. “So Dana and I met with J.R. in an effort to avoid a lawsuit. We laid out all the complaints we ultimately included in the lawsuit, as well as some other issues, and asked if the state would commit to improving things in a written agreement.”

At this juncture, Hanna, Pevar and their colleagues had not yet decided which legal course they would pursue, and there were no identified plaintiffs in the case. Additionally, it was undecided whether they should—or even could—have the tribes sue on behalf of their members, which had never before been attempted in a federal suit in relation to ICWA. But they were determined to open the dialogue to assess whether the state was amenable to an agreement.

Hanna had sent a detailed letter to LaPlante advising him of the key points and issues he and Pevar wanted to discuss and what they had hoped could be addressed in a tribal-statement agreement. “Most of the issues focused on the 48-hour hearings, but not all,” says Hanna. “I wrote that letter so that [LaPlante] would be prepared to discuss the issues and so that he could have something to show to the Governor, the Attorney General, DSS, and anyone else on the State side, so they would know our position on these specific issues.”

Pevar and Hanna spent the better part of a day with LaPlante going over their concerns regarding the policies and procedures involved in the 48-hour hearings, as well as the fact that the children were being placed in non-Indian foster homes, among other things. They say LaPlante told them that although his office had no authority or administrative capability to implement or even suggest the sort of changes that would be needed to address the ongoing removal of children from their families, he would take their concerns with the administration to see if any out-of-court remedies were attainable.

In response, on May 31, 2012, Hanna received a polite letter from the state that began, “Thank you for your interest...” and ended with an invitation to the legal team to “evaluate” the South Dakota Guidelines for Judicial Process in Child Abuse and Neglect Cases as a basis for any further discussions, “since the crux of your letter was about court procedure.”

“States generally don't want to settle with the ACLU,” says Pevar. “Many politicians often find it difficult to settle with us and would rather have a judge order them to do it. Whether that played a role here, I'd have no idea."

With that letter, Pevar and Hanna believed the state had sent a clear message. “They gave no reason to believe that they were willing to seriously pursue an agreement that would avoid litigation,” he says. “Stephen and I interpreted their response as meaning, 'Go sue us if you want.'

“So we did.”

In March 2013, Pennington County state's attorney Mark Vargo, the state's Secretary of Social Services Kim Malsam-Rysdon, Pennington County Social Services Director Luann Van Hunnik or District Court Judge Jeff Davis were all named as defendants, in their official capacity, in Oglala Sioux Tribe v. Van Hunnik.