Two of South Dakota's largest tribes won a sweeping victory in federal court that could reverberate for tribes across the country.
A federal judge has ruled that the state Department of Social Services, prosecutors and judges "failed to protect Indian parents' fundamental rights" when they removed their children after short hearings and placed them largely in white foster care.
According to the suit, some of the hearings lasted less than 60 seconds. The suit says some parents were not allowed to speak at the hearings or in some cases hear why their children were being removed.
"In the past four years alone, hundreds of Indian children have been forcibly removed from their homes and subjected to these judicial hearings," says Stephen Pevar, a staff attorney with the ACLU which brought the case along with South Dakota attorney Dana Hanna on behalf of the Oglala Sioux and Rosebud Sioux tribes.
"It's no wonder that the social services won a hundred percent of those hearings," he says. "All the cards were stacked in their favor."
Congress passed the federal Indian Child Welfare Act in 1978 in an effort to keep native families and tribes together. It mandates that the state place native children with their relatives or tribes if they have to be removed from their parents.
But in South Dakota that hasn't always happened. More than 80 percent of native children are placed in white foster homes. In 2011, NPR found that the state was routinely placing children in non-native homes, even when native homes and relatives were available.
One of the biggest complaints of native families who lost children is that they were never allowed to present their side.
Federal Chief Judge Jeffrey Viken agreed with them, writing, "Indian children, parents and tribes deserve better."
South Dakota state officials declined to comment. Tony Venhuizen, chief of staff to Gov. Dennis Daugaard said in an email, "We would decline to comment on pending litigation."
The Department of Social Services did not respond to requests for comment.
Abbie Smith, a government affairs associate for the National Indian Child Welfare Association, says the ruling will change the way courts nationwide treat these cases.
"It sets up a road map for other areas in the country where we know there is disregard for the rights of parents and tribes," Smith says.
"I take literally thousands of phone calls a year from parents and tribes, grandmas and aunties who describe to me court hearings that sound as if they were lifted out of the transcript that was included in the complaint in this case," she says. "A victory like this in South Dakota will send a message loud and clear that these laws and these civil rights are not optional."
Chase Iron Eyes is a staff attorney with the Lakota people's Law Project which has been fighting this issue in the state for more than 10 years. He says grandmothers and relatives who were denied custody of their grandchildren feel vindicated.
"We have a right to the control and wellbeing and development of our children," he says. "Our basic existence depends on them."
Pevar says the tribes will work with the Department of Justice and the courts to develop guidelines for South Dakota and other states as well. He says they will take up a final piece of the lawsuit — the Department of Social Services and its training of employees — next.
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