Leading the fight against abuses of South Dakota's foster care system is the American Civil Liberties Union, which is helping the Oglala and Rosebud Sioux tribes fight state officials who have been removing children from American Indian homes without sufficient due process and in violation of the federal Indian Child Welfare Act.

The ACLU had to fight South Dakota judges to gain access to transcripts from initial custody hearings involving Oglala and Rosebud parents and children. ACLU attorney Stephen Pevar says the 120 transcripts they've been able to review so far show regular disregard for parental and child rights under ICWA:

Nearly 100 percent of the time, Indian children were removed from their homes in those hearings. The average length of time those hearings took was less than 4 minutes. Within that time, of the six different judges that oversaw the hearings, not one judge ever told one Indian parent that they have a right to contest the state's petition for temporary custody of their children in the hearing on the petition.

During those hearings, the parents were not told the reasons for the removal, not provided with an attorney, not allowed to submit any evidence, and not allowed to cross-examine the Social Services worker who had submitted an affidavit against them. In most cases, the parents were not even allowed to see the affidavit [Stephen Pevar, "Why Are These Indian Children Being Torn Away From Their Homes?" ACLU: Blog of Rights, 2014.07.23].

Department of Social Services data show that South Dakota Indian children are eleven times more likely to be taken from their parents and placed in foster care than non-Indian children.

In a motion for summary judgment filed July 11, the ACLU and plaintiffs contend that the defendants (Department of Social Services Secretary Kim Malsam-Rysdon, Department of Social Services employee LuAnn Van Hunnik, Pennington County State's Attorney Mark Vargo and 7th Judicial Circuit Court Presiding Judge Jeff Davis) have failed to dispute any material facts in the case, including the clear obligation imposed on the state by this clause in the Indian Child Welfare Act:

Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. 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 [ICWA, Section 1922, emphasis added in plaintiffs' motion for summary judgment, Oglala et al. v. Hunnik et al., 2014.07.11].

Pevar offers these examples from the 48-hour hearing transcripts of the state failing to terminate emergency removal or placement of Indian children when the threat of imminent harm has passed:

  • A mother abused by her boyfriend lost custody of her child even though the abuser was not being allowed to return to the home. Before the judge's decision, the mother pleaded with the judge not to punish her for what the abuser had done.
  • A father going through divorce was denied custody of his children solely because his estranged wife got into trouble with the police, even though no evidence was introduced suggesting that the children would be at risk staying with the father.
  • A mother lost custody of her daughter merely because the daughter's babysitter had become intoxicated, without any showing that the mother knew that such a thing might occur.
  • A father who tried to discuss the merits of his case was interrupted by the judge and told that the details of child custody removals were not to be discussed in 48-hour hearings, and then the judge signed an order removing the child from the father's custody [Pevar, 2014.07.23].

The plaintiffs had to get federal Judge Jeffrey Viken to order the release of the transcripts that support their case. Defendant Judge Davis had released some of those transcripts of his own accord but now is apparently trying to withhold additional information. In a motion to unseal filed Monday, the plaintiffs allege that Judge Davis is "concealing information prejudicial to his case" by asserting that a motion for sanctions filed by the plaintiffs should remain sealed because "it subjects the Defendant Judge Davis to unnecessary and unjustified embarrassment and public scandal." The plaintiffs find that justification for sealing a public document wanting:

The ground asserted by Judge Davis in support of keeping the Motion sealed is invalid in this context. Specifically, if subjecting a party to “unnecessary and unjustified embarrassment and public scandal” could justify the sealing of pleadings in federal litigation in the manner asserted here, every defendant in every civil case would have the power to seal each plaintiff’s complaint and other court filings.

...The sole ground tendered by Judge Davis for keeping Plaintiffs’ Motion for Sanctions sealed is invalid. This is a case of major public importance, involving the fundamental liberty interests and federal statutory rights of every Indian family with children in Pennington County, South Dakota. Judge Davis may not control the public’s access to documents filed in federal court merely to protect his sensibilities or his reputation [Plaintiff's Motion to Unseal, Oglala et al. v Hunnik et al., 2014.07.21].

This is a case of major public importance. A victory in this lawsuit would be a firm step toward addressing the systemic abuses of Indian family rights in South Dakota's foster care system revealed by NPR's Laura Sullivan and Amy Walters in 2011. That victory requires the persistence of the tribes and the continued conscientious service of the ACLU.