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ACLU Helping Tribes Fight ICWA Violations in South Dakota Foster Care

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.

8 Comments

  1. Beth Sundewald 2014.07.25

    There is massive corruption in the legal system in SD. Two of the worst judicial cases of Mark Marshall and AP Fuller came out of RC, under judge Davis. He had a responsibility, an oath to turn both of the former judges in for ethical violations. He didn't. After forced resignations of both judges, a complaint t was lodged against Jeff Davis for verifiable ethical wrongdoing. It went nowhere.

  2. jerry 2014.07.25

    Of course the complaint against Davis went nowhere as we live in a state that has gone completely corrupt politically and judicially. Thankfully there is the ACLU as we are powerless here.

  3. Beth Sundewald 2014.07.25

    Any judge or fellow attorney who turns a blind eye to ethical or legal wrongdoing puts their law license at risk.

  4. Deb Geelsdottir 2014.07.25

    I'm guessing that the SPLC has been contacted. I'm sure they are very busy, but that organization is really good at this kind of crap. They've won many race-based cases in the South.

  5. Roger Cornelius 2014.07.25

    I'm somewhat confused by this.

    Are the children we are talking taken off the reservation and processed through the South Dakota courts or they cases of off reservation children.

    The tribal courts are fully equipped to handle ICWA cases. If the case is that they are removing Indian children off the reservation, this could easily be deemed kidnapping.

    Tribes will need to amend their compacts with the state DSS to prevent these repeated acts. ICWA allows for jurisdiction over tribal members, especially children.

    Tribal councils will also need to make it a criminal act to remove children from the reservations without the approval of the tribal courts.

    It is time to get tough with the state of South Dakota and DSS and tribal councils and courts have the authority to demand that every tribal member that has been removed from the reservation is returned to its jurisdiction.

  6. caheidelberger Post author | 2014.07.25

    Curious, Erwin: did the ombudsman refute the disproportional representation of Indian children in the foster care system? Did the ombudsman report address the alleged ICWA violations at the heart of the Oglala-Rosebud lawsuit?

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