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Native Sun News: Tribes file major suit against South Dakota

The following story was written and reported by Brandon Ecoffey, Native Sun News Staff Writer. All content © Native Sun News.

OST Tribal President, Bryan Brewer and OST ICWA director Juanita Scherich announced the suit on March 21, in Rapid City.

Tribes file major suit against State of South Dakota
American Civil Liberties Union joins suit
By Brandon Ecoffey
Native Sun News Staff writer

RAPID CITY — The Oglala and Rosebud Sioux Tribes and the American Civil Liberties Union have sued the state of South Dakota for failures to provide Native American families with adequate due proccess when removing children from homes.

“This is something that must stop now. We will protect our children,” said Oglala Sioux Tribal councilman Larry Eagle Bull. “The Great Sioux Nation is united behind this lawsuit and we will put an end to the practice of the state taking our children without giving our people a chance to defend themselves,” he added.

The suit that was filed in Federal court on Thursday alleges that the state of South Dakota and Pennington County specifically, has institutionalized the process of denying tribal members their constitutional right to due process.

“This is strictly a constitutional issue and quite narrow in scope,” said Dana Hanna the attorney representing the two tribes. “When the government takes anything from you whether it be a piece of land, a car, and especially your children they have to give you notice of what they are going to do and why prior to doing it unless it is an emergency situation, and the state is not doing this,” he said.

During an abuse and neglect case there are four primary stages that take place. The initial stage takes place when social services, the police, or some other agent of the government removes a child from their home under the suspicion of neglect. After the removal the next step of the process is a hearing must take place to determine whether the child is in immediate danger and needs to remain in the custody of the state. The third stage involves a trial to determine if neglect has actually taken place, and the final stage involves the placement of a child in a foster home for an undetermined amount of time.

The lawsuit filed by the plaintiffs on Thursday challenges the second step. In Pennington County during the initial hearing the parents of a child who has been taken are not allowed to see or challenge the evidence that is being used to take custody of their child. According to the suit there is no attempt at all from the state to provide any level of due process.

“It shocking to me and it would be shocking to most people in South Dakota white, Indian, or other that if the state takes your child you are not able to say anything about it for sixty days,” said Hanna. “The current hearing that is provided by the state is a total sham.”

Mr. Hanna told Native Sun News that one of the first child seizure hearings that he attended lasted sixty seconds.

Current case law has established that the Fourteenth Amendment of the US Constitution, guarantees any citizen of the United States the right to due process. To satisfy the legal definition of due process a suitable hearing must take place where a notice of rights and a presentation of evidence against a person are presented.

“The hearing that is currently taking place is simply a rubber stamp for the state to take your kids and there is nothing meaningful about it,” said Hanna The suit does not seek any monetary damages but asks the court to order the state to conduct a hearing that is both timely and adequate.

During the initial hearing the State of South Dakota has ruled the Indian Child Welfare Act guidelines do not apply, thus it is not necessary for the state to notify ICWA representatives or the tribe of any seizures prior to or during the initial hearing.

Federal law requires under ICWA that the state must notify the tribe when a formal process has been initiated to place a Native American child in foster care. Within the filings by the plaintiffs to the Federal court are examples of blatant violations of ICWA by Pennington county judges and the state’s department social services. The Oglala and the Rosebud Sioux Tribes have jumped behind the suit because 60% of the children seized by Pennington County are tribal members.

“Our people deserve to have the rights we are guaranteed by the constitution,” said Bryan Brewer President of the Oglala Sioux Tribe. “This suit if successful will stop the illegal taking of Lakota children from their homes and at the very least give Native and non-Native parents across the state an opportunity to protect themselves from the illegal seizure of our most precious asset, our children,” he added.

The State of South Dakota declined to comment stating that they had yet to receive official notification of the filing.

(Contact Brandon Ecoffey at

Copyright permission by Native Sun News

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