Madonna Pappan, top, hugs her 4-year-old daughter Charlie Pappan before speaking at a press conference at the Adobe Eco Hotel in Rapid City, S.D. on Thursday, March 21, 2013. Pappan is one of three mothers represented by the American Civil Liberties Union in a class action suit filled by the ACLU on behalf of the Rosebud Sioux and Oglala Sioux tribes. The tribes are challenging the state's practices and policies that they say violate the Indian Child Welfare Act. (AP Photo/Rapid City Journal, Kristina Barker)

Oglala and Rosebud File Federal Child-Welfare Lawsuit

Stephanie Woodard
March 22, 2013

On March 21, the Oglala and Rosebud Sioux tribes and three tribal members filed a federal class-action suit in Rapid City, seeking a ruling that would compel Pennington County, South Dakota courts to provide prompt and meaningful hearings when Indian children in the county are removed from their homes because of neglect or abuse accusations.

The lawsuit follows a 16-month American Civil Liberties Union investigation that found Pennington County courts routinely prevent parents in custody hearings from seeing the affidavits making claims against them, from cross-examining those who filed the documents and from introducing evidence on their own behalf, according to ACLU attorney Stephen Pevar. Hearings may be as short as one minute.

This practice causes great suffering and long-lasting trauma, said Bryan Brewer, president of the Oglala Sioux Tribe, which has declared a child-welfare state of emergency. “This abuse of state power has tragic results,” said Brewer.

Stephen L. Pevar, center, speaks to the crowd gathered for a press conference on Thursday morning, March 21, 2013 at the Adobe Eco Hotel in Rapid City, S.D.. Pevar, a staff attorney with the American Civil Liberties Union's Racial Justice Program, spoke about the unjust practices executed by the state of South Dakota in handling child custody cases involving Native American families. Pevar represents the Rosebud and Oglala Sioux tribes in the lawsuit filed against the state. (AP Photo/Rapid City Journal, Kristina Barker)

Plaintiffs and others attending a Rapid City press conference to announce the suit gave emotional accounts of being separated from their children for months or years. “Give my grandson back. I want him back. Please, someone help me,” cried Bernice Spotted Eagle, from Wounded Knee, South Dakota, on the Pine Ridge Indian Reservation.

South Dakota’s Native children, families and tribes are impacted by these policies because Indian children are taken in numbers way out of proportion to their percentage of the state’s child population. However, Brewer and others noted, the suit is aimed at greater fairness for all. “This is not just an Indian issue,” said Pevar. “It’s a constitutional issue. No one can afford to have these rights taken away. The Oglala and Rosebud tribes are leading the charge on behalf of all families.”

According to the complaint, Pennington County judges routinely give the state custody of children for at least 50 or as many as 120 days, even going so far as to make dubious claims in their orders. A hearing for plaintiff Madonna Pappan, her husband and their two children lasted about 60 seconds, said the complaint, which further says that the court did not permit the Pappans to see the petition that state officials had filed against them.

At the end of the Pappans’ minute-long proceeding, the judge entered an order claiming—apparently without hearing evidence of this—that “active efforts have been made to provide remedial services and rehabilitative programs” to the Pappans and that taking their children was “the least restrictive alternative available.”

Much is known about the high number of Indian children taken into foster care in South Dakota and their placement in non-Indian homes and group facilities, according to Pevar. However, he noted, the current suit is not about these problems—though they may be alleviated if parents get proper hearings.

This suit is about systemic change, he said: “It’s about procedural fairness, about guaranteeing rights set forth in the U.S. Constitution and the Indian Child Welfare Act. The Supreme Court has long held that when the government takes anything from you, even your driver’s license or your furniture, you get a full accounting. If it’s true in those cases, it’s certainly true when government takes your children.”

The defendants (who are sued in their official capacity) are an official of the state’s Department of Social Services, the Pennington County state’s attorney and the county’s presiding judge. The ACLU investigation did not determine whether Pennington County is the worst jurisdiction in South Dakota but rather that the situation there is very bad, said Pevar. The other plaintiffs’ attorneys are Dana Hanna, of Rapid City, who represents the Oglala and Rosebud tribes in ICWA and other matters, and Robert Doody, of the South Dakota ACLU.

If the state perceives the merit of the suit, it could proceed to a settlement, said Pevar. If the state chooses to fight, the lawsuit moves into the discovery phase, in which case the plaintiffs would be able to take depositions and obtain documents about the number, timing and results of custody hearings in Pennington County.

The ACLU has not ruled out future lawsuits. “We’re in this for the long haul,” said Pevar.



Two Bears Growling's picture
Two Bears Growling
Submitted by Two Bears Growling on

That's EXACTLY why we need our own people dealt with in OUR native courts with OUR lawyers & native case workers. Many times washicu legal officials never have our best interests in mind. They see things through their own eyes & not through our people's eyes.

Many times these white offficials do not want to hear what we have to say or what we think. They do not understand our ways of handling things, but they sure don't mind butting in our business!

This is one case I am glad the ACLU has jumped on board in our defense.

curtj's picture
Submitted by curtj on

Our leaders are stuck in a colonial box foisted on them with its parameters, philosophies,ideals and recourse which is one sided with theft and its profits going to individuals and corporations who financially and legally profit and benefit thanks to legislation crafted and voted on by past, present and future employees turned political prostitutes, or by others with professional and personal relationships, including investments with their "blind trusts", including the legal rulings with the same conflict of interest and collusion challenged judges all the way up to the US Supreme Court.
You could start with the conflict of interest of Chief justice Thurogood who financially profitted off the Indigenous lands after they were removed in the Cherokee Indian Trail of Tears" in 1830.

Roy Packineau's picture
Roy Packineau
Submitted by Roy Packineau on

Me and my wife have been fight with CPS for over two years now!! We will not give up and we also would like to have a Lawsuit filed with Burliegh County Social Services. Bismarck N.D. It is all white run not one native working with them? They have changed DA's twice now? We need help but we will not give up our kids so the fight still goes on!!! How do you define burned out social workers? or incompetent? And they hide behind the Law? Fake and Cowards!!! I or we will have our day in court!! N beat them at their own game.

lorna bear heels's picture
lorna bear heels
Submitted by lorna bear heels on

i would like to say that the state took my three sons away from me in 2006 i havent got to see none of them.but on may 16th of this year my second will be turning 18. the horriable stories they tell me how they cant eat get abused by the foster parents they should really look into these people that supposively taking care of them and why do i have pay the state for child support .i almost took my own life back in 2010 it hurts every second of the day not to see your sons growing up and they put things in there head that dont love them but they know i do very much.but i got help and i pray every nite and morning for there safety that one day we will be a family once again..

Kate Adams's picture
Kate Adams
Submitted by Kate Adams on

Glad that you are gathering together to contest this ignorance and lack of respect. I posted to my facebook here in Vermont. Pray for strength and persistence for true justice to prevail in kindness.