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

This is Part I in a series about Oglala Sioux Tribe v. Van Hunnik, which charges South Dakota State and local Pennington County officials with violating the rights of Indian parents and tribes in state child custody proceedings.

The class-action lawsuit challenges the alleged systematic removal of Indian children in South Dakota from their families and tribal communities without proper hearings, violating the constitutional right to due process and the Indian Child Welfare Act (ICWA).

The American Civil Liberties Union (ACLU), the ACLU of South Dakota, and Dana Hanna of the Hanna Law Office in Rapid City, South Dakota, filed the lawsuit in March 2013 on behalf of two tribes—the Oglala Sioux Tribe and the Rosebud Sioux Tribe—and three Indian parents who allegedly suffered the loss of their children without regard for state law and without receiving timely and adequate hearings as mandated by the Fourteenth Amendment's due process clause and ICWA.

On January 28, 2014, a federal court denied a motion by South Dakota officials to dismiss the case.

On October 25, 2011, Stephen Pevar was driving home from work in Hartford, Connecticut, doing what he always does: unwinding by listening to NPR. But on this chilly, overcast evening, there was one story that grabbed his attention, made it hard for him to relax. It was a report out of South Dakota, where he had worked in the early 1970s as an attorney with the South Dakota Legal Services on the Rosebud Sioux Indian Reservation.

As details of the story unfolded, Pevar's mood darkened. He turned up the radio and listened intently to accounts of Indian children allegedly being taken from their homes by South Dakota social workers, often disappearing into state custody that apparently operated with virtually no accountability or oversight. According to the report, state workers were placing Indian children with white foster families even though Indian foster homes were available. Moreover, social workers were said to be severely restricting, and sometimes denying, Indian parents from having contact with their children during their time in foster care.

Pevar knew that if even half of these accounts were true, the State of South Dakota Department of Social Services, in collusion with court personnel and even judges, might be engaged in systemic violations of federal law under the Indian Child Welfare Act and the Due Process Clause of the Constitution.

Stunned by what he had heard, Pevar glanced at the clock on his dashboard, steered his car into a parking lot and pulled out his cell phone. As National Staff Counsel for the American Civil Liberties Union and a noted expert on federal Indian law, Pevar speed-dialed the ACLU's executive director in South Dakota and left a voicemail.

“Robert, it's Stephen. Listen, I'm in Connecticut, but there's a story on NPR that's going to be on the air there in about an hour. I need you to listen to the story and call me first thing in the morning. We need to talk.”

From his home office that evening, Pevar immediately swung into action, doing research and sending emails to colleagues in South Dakota and beyond to express interest in filing suit if the accounts in the story could be proven. For Pevar, who has authored one of the seminal volumes on Indian law, The Rights of Indians and Tribes, the story was going to stay fresh for more than a passing news cycle. It potentially represented a wholesale state-level defiance of federal law designed specifically to prevent the destruction of tribal life in America by way of procedural and calculated separation of children from their families and tribes.

“As I listened to the [NPR] story, my concern was whether all the hard work that Congress had devoted to investigating the plight of Indian children and in passing the Indian Child Welfare Act was going to waste,” says Pevar. “Were South Dakota officials following the procedures required by ICWA and the Due Process Clause [in the Constitution]? According to this news report, they were not. And if that were the case, something needed to be done about it. I felt a personal responsibility to get involved.”

Another Broken Circle

That same month, Dana Hanna was sitting in court, waiting to present a case he was working on that was unrelated to ICWA. Hanna is a veteran litigator and trial lawyer who specializes in federal Indian law with his own private practice in Rapid City.

Hanna, whose case was next on the docket, was going over briefs when he became aware of the case being presented to the judge, involving two Indian parents. He glanced up, and says he saw something extraordinary happen.

“I couldn’t believe what I saw: The parents were not advised of any rights—no rights—the prosecutor read a brief statement, the judge turned to the parents and said, 'Do you have anything to say?'” Hanna recalls. “They said they wanted their children back. But the court granted DSS’s petition for custody and foster care placement of their children for the next 60 days, and then scheduled the case for an advice of rights hearing two months down the road.

“They were advised that they had some legal rights two months after the state took custody of their children and placed them in foster care!”

Hanna had already been retained by the Oglala and Cheyenne River Sioux tribes to represent them in Pennington County, which has had a notorious reputation for decades for its violation of the rights of Indian parents and children. But on that day, Hanna sat in disbelief at the proceeding taking place right before his eyes in which parents were stripped of their children with less concern or effort than the handling of a traffic ticket.

Because the couple were not his clients, he could not intervene. But soon after, Hanna began researching these emergency “48-hour temporary custody hearings” required by law two days after a child has been removed from its parents' custody. What he learned was shocking.

“Once I got involved, I realized that nobody in the tribes was getting any semblance of a fair hearing,” says Hanna with incredulity. “And it's in these temporary custody hearings where critical decisions are being made about the fate of their children. These hearings are closed, they are not transparent, no lawyers were ever present on behalf of the parents, [the parents] were never advised of their rights. And that's the way these cases have been handled for years.”

Hanna began gathering transcripts and court records and contacted the ACLU South Dakota office to inquire about potential litigation.

Although the State of South Dakota appeared to be flagrantly operating outside the scope of the Indian Child Welfare Act, Hanna says, “This case is not just about ICWA. It’s about the systematic denial of due process and fundamental fairness: Indian parents and children have a constitutional right to have a meaningful hearing, one in which they can present evidence and be heard, before the state can take their children for two months and place them in foster care. Since 2010, they have been denied that right in the Seventh Judicial Circuit Court.”

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Two Worlds Colliding

On the morning of October 26, the day after the NPR story on South Dakota was broadcast, ACLU's South Dakota staff told Pevar on a conference call that they were aware of the issues with the South Dakota Department of Social Services in regards to the state's alleged violations of ICWA.

Additionally, they told him that Hanna had recently contacted them and expressed his own concern and interest in seeking a legal remedy to the situation, which—to them—appeared to have grown into a full-fledged industry in the removal of native children from their homes without providing Indian families and tribes the protections required by federal law.

For years, hundreds of Indian parents and relatives had complained in vain to their tribes about the daily practices and procedures of the South Dakota DSS and court system, but given the poverty and lack of resources on many of the state's Indian reservations, many were either unaware of their rights or financially unable to pursue legal recourse. Their children—ranging in age from newborns to teenagers—were being taken and placed in non-Indian foster homes or in private institutions that are also operated by non-Indians that have been described by one former U.S. Attorney as “foster mills.”

According to some of the parents interviewed by Indian Country Today Media Network, in some cases, kids were taken away under nothing more than the pretext that their parents were “poor,” or because of an unfounded rumor.

Upon close inspection, South Dakota looked to be violating not only their own state statutes, but also contravening the Indian Child Welfare Act and ignoring numerous Supreme Court precedents that specifically enumerate and hold “sacrosanct” the bond between parent and child which should be “maintained without unnecessary interference by the state.”

According to tribal members, Native children, both on and off South Dakota's Indian reservations, were being routinely pushed into a foster system that forced their families to wait 60 to 90 days without a speedy evidentiary hearing as required by federal law before their parents were permitted to regain custody. In the meantime, they were allowed only one-hour weekly visitations, under the watchful supervision social workers. In more unfortunate cases, they were never seen by their families again. Some children even committed suicide in state custody.

In the intervening months, their families were left devastated, confused and scrambling to get their children back. Parents and even grandparents were forced to take parenting courses, enter counseling, undergo drug testing and repeated, unnecessary homestudies that they say led to yet more “checklists”—a confounding maze of requirements by state DSS workers that unduly prolonged an already tortuous process to regain custody of their children.

Parents interviewed by ICTMN say that even when they did fight back, they were met with “stonewalling” or “stalling tactics.”

According to the Lakota People's Law Project, for example, nearly 750 Indian children are removed into foster care by the South Dakota DSS each year, which comprises just over half of the population in state custody. According to the 2010 Census, however, Indian children make up only 13 percent of the entire population of children within the state.

Many parents say that by the time they were even able to reunite with their children, the damage had been done. Therefore, the disruption caused by these procedural and judicial errors have led to a siege mentality among tribal members who say their children still suffer the long-term, deleterious effects, including separation anxiety, night terrors, depression and self-destructive behaviors.

All these things were allegedly still occurring 35 years after the Indian Child Welfare Act was enacted with the precise intention to prevent the destruction of tribal life in America. Pevar and Hanna agreed that, in the absence of a negotiated settlement, some kind of litigation would have to be pursued. But South Dakota officials, based on their public position, were convinced that they had broken no laws and have repeatedly declined to respond to Indian Country Today Media Network regarding these allegations.

After much discussion, the lawyers agreed that the best point of entry were the initial “48-hour temporary custody hearings” in Pennington County, in which Indian parents stated they were never advised of their rights; never allowed to see the complaint filed against them or the right to see the affidavit in support of the complaint; never given the opportunity to present evidence or the chance to cross-examine witnesses. Furthermore, parents alleged they were given no chance to defend themselves; and most importantly, state officials would never tell them whether the threat under which the children had been taken even existed at the time of the hearing.

None of these basic civil procedures were being followed, according to Hanna, who says his requests for compliance with ICWA on behalf of the Oglala and Cheyenne River Sioux tribes, whom he represents in court proceedings, were routinely rejected by judges.

For example, Judge Mary P. Thorstenson (who left the bench in January 2013), told Hanna in court that “you have brought this issue up on numerous occasions, [and the court has consistently held] that ICWA does not apply to emergency hearings.”

Indeed, she reminded Hanna that under the first sentence of § 1922 of ICWA, “state law prevails in the 48-hour hearing” and “the Tribe does not have a fundamental right to fairness under ICWA” at that hearing.

What Judge Thorstenson and other judges consistently ignored, however, was the second sentence in that section:

“The State authority, official, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.”

As battle-hardened Indian law practitioners, Pevar and Hanna were well aware of the constant friction between tribes and states, and the numerous junctures where the two are at odds. As the discussions commenced, they agreed to try diplomacy first, hoping that South Dakota officials would come to an out-of-court agreement.

But knowing the entrenched mindset in a state infamous for its often-ugly history with Indian tribes, including the Wounded Knee Massacre, they also began preparing for a worst-case scenario by devising a legal strategy that could no longer be ignored nor dismissed.

Next: Part 2—Pride and Perdition: Oglala Sioux Tribe v. Van Hunnik