A precedent-setting federal lawsuit over the rights of Indian parents and tribes in South Dakota began with courthouse eavesdropping. Dana Hanna, a Rapid City attorney, was early for his case in Pennington County one day in October 2011. He was preoccupied preparing his own materials as he waited in the county courtroom, but couldn’t help overhearing the proceeding in progress. Something was off. What Hanna saw seemed to be a custody hearing, with two Indian parents before county officials, but if it was that kind of hearing, this one ended way too quickly.
Hanna recalled that the parents’ hearing had just two curt parts: the prosecutor giving an ultra-brief statement, and the judge perfunctorily asking the parents if they had anything to say. The parents asked the court to return their children, but the hearing rolled on, granting the county Department of Social Services custody for no fewer than 60 days. Only after approving the removal of the children did the judge set an “advice of rights” hearing date for the parents—for two months later.
Pennington County has been taking Native American parents’ children just as predecessors in government took Indian children from their families: “under color of law.” From the late-19th through the mid-20th century, thousands of Indian children were taken from their homes for “assimilation.” Some were funneled into boarding schools designed to strip them of individual and cultural identity (cutting hair, mandating uniforms, prohibiting Indian languages), while others were placed with non-Indian families. Until the late 1970s, states moved one-quarter to one-third of Indian children to different families, often with federal support.
Parents who lose custody receive a “plan” to complete before they can so much as try to get their children back. Requirements include parenting classes and substance abuse assessments, among other prescriptions.
Congress passed the Indian Children Welfare Act (ICWA) in 1978 to end overzealous removal practices and establish new, special protections. The legislation established criteria for removing Indian children, enshrined protections for Indian parental rights, and determined that in cases of foster care and adoption, Indian children should be offered first to family members, then tribe members, then other Indians, before being made eligible for adoption by non-Indian families.
When Hanna investigated, he found that South Dakota’s state attorney’s office, several judges, and social services officials appeared to be working together to skirt ICWA and due process protections against the removal of Native American children without justification. Some children had been taken after reports or referrals against the parents; others had been removed simply for being with a parent placed under arrest.
Indian parents in Pennington County were being forced into an “informal” version of a custody hearing, like the one Hanna witnessed, rather than a full evidentiary hearing, to which parents are legally entitled within 48 hours of a child’s removal. Social services officials have been rigging these informal hearings: they have submitted secret petitions and bypassed requirements meant to keep families intact; they have convinced prosecutors to argue for their recommendations uncritically; and they have had judges rubber-stamp removals. The county has placed 90 percent of children with non-Native foster families, another flagrant violation of ICWA.
Parents who lose custody receive a “plan” to complete before they can so much as try to get their children back. Requirements include parenting classes and substance abuse assessments, among other prescriptions. If a parent fails on a single element, the child remains in foster care, and if a child spends 15 of 22 consecutive months in foster care, parents’ rights may be terminated altogether.
NO ONE SEEMS TO know exactly why Pennington County began rushing Indian child removal and custody proceedings. B.J. Jones, who runs the Tribal Justice Institute at the University of North Dakota and sits on multiple tribal courts, thinks officials probably had good intentions, wanting to protect children.
Author Ian Frazier, who wrote about one of the tribes affected, the Oglala Sioux, in On the Rez, says of their reservation, Pine Ridge, “there’s so much chaos there.” He calls the problem of alcoholism on the reservation “swirling hell.” When I ask what he recalls of children on the reservation, Frazier tells me that he remembers seeing “woebegone kids trailing after parents.” Eighty-five percent of families on Pine Ridge are affected by alcohol abuse, and a quarter of children are born with fetal alcohol disorder.
Against this woeful backdrop, known to South Dakotans but perhaps not the rest of the country, one might imagine social services workers, attorneys, and judges swayed by a mix of legitimate and exaggerated concerns. Perhaps some thought the informal hearing and multi-month delay would be a lifeline for parents with substance abuse issues, keeping them out of the system and their children safe until they could get clean. Maybe officials wanted more time to gather information.
But even the most charitable interpretations of Pennington County’s actions fall short: If this “informal” process was meant to help parents afflicted by addiction, why has it been applied so indiscriminately? Whatever ends the officials sought, the means by which they’ve attempted to reach them are spurious at best, and largely indefensible.
Author Ian Frazier, who wrote about one of the tribes affected, the Oglala Sioux, in On the Rez, says of their reservation, Pine Ridge, “there’s so much chaos there.”
HANNA SPENT 18 MONTHS challenging flimsy custody hearings on behalf of Native parents in state courts. In October 2012, he was defeated at the South Dakota Supreme Court, which ruled that the ICWA protections don’t apply to temporary or emergency custody hearings. Then he teamed up with American Civil Liberties Union (ACLU) attorney Stephen Pevar, a senior staff counsel who’s also taught federal Indian law at the University of Denver and the University of Connecticut.
Hanna and Pevar filed a federal lawsuit in March 2013 on behalf of two tribes whose families have been affected, the Oglala Sioux and Rosebud Sioux, and three mothers whose children were taken. Their argument that the county violated the ICWA and their right to due process was somewhat of a gamble: Federal courts defer to state supreme courts where it concerns state implementation of federal law. Normally the South Dakota Supreme Court ruling permitting rushed hearings would stand until that state court revisited it or the U.S. Supreme Court heard the case. But U.S. District Court Judge Jeffrey Viken denied motions to dismiss.
Before becoming a federal district court judge, Viken served as a federal public defender for both Dakotas and an assistant U.S. attorney in South Dakota. Perhaps enforcing federal laws or defending those who violated them made him especially sensitive to alleged willful disregard for federal law on the part of a county. Whatever the reason, Viken did something extraordinary: He not only let the case proceed but granted the Indian tribes standing to sue under ICWA and ruled that Indian parents could sue as a class, two landmark firsts.
B.J. Jones expected traditional deference to state courts to trump the substance of the challenge. Jones’ only explanation for Viken’s decision is this: Faced with a “process so outrageous,” the judge just couldn’t defer to the state court. That thought heartens Jones and allies. Only Pevar, perhaps, was unsurprised by the late January rulings. “We definitely expected the case to go this far,” he insists.
What began with a chance encounter in a county courtroom could lead to a groundbreaking trial in the district court for South Dakota. All parties will have representation; none will risk being rushed or squashed. Far from being hidden, the claims are in print, on file, and even online. The plaintiffs have achieved a fundamental victory even before trial: This case has created precedent that substantially improves the chances that cases like this one will proceed elsewhere, giving voice to Native American parents around the country.