The time had come to make a move. For 17 months, Stephen Pevar had been on a quiet but determined mission to end what he saw as the wholesale removal of Indian children from their homes without due process in South Dakota. Since October 2011, he and the legal team working on behalf of tribes in the area had devoted hundreds of hours to researching, consulting with experts and piecing together their facts in a very broad and complex case that was growing larger by the day. In May 2012, Pevar, who is national staff counsel for the American Civil Liberties Union, and Dana Hanna, a Rapid City attorney, even met with a representative from the state to start the discussion about moving toward a state-tribal compact.
In a brief, one-page letter, however, the state flatly refused to enter into an agreement or even consult with the tribes when taking their children—ranging in age from newborns to teenagers—into state custody in what are called “emergency 48-hour hearings.”
“After careful consideration of the concerns outlined in your letter, we have concluded that your letter does not provide enough factual information that would Warrant a discussion about a state tribal agreement at this time,” the state response read; it ended with an invitation to the legal team to “evaluate” the South Dakota Guidelines for Judicial Process in Child Abuse and Neglect Cases as a basis for any further discussions, “since the crux of your letter was about court procedure.”
READ FULL COMPLAINT
Indian parents in South Dakota allege that it had become an accepted practice by the state that they were never allowed to view the complaints or supporting documents filed by the state against them, much less present evidence or show the court whether or not an “emergency” still existed at the time of the hearings, which usually takes place two days after a child has been removed. Additionally, some of the hearings were being held whether or not the parents were even present. Therefore, the “48-hour hearings,” as they are known, became a launch pad for Native children to be swept into foster care for up to three months while their parents and tribes struggled to get them back.
As soon as Hanna attempted to gather information on these cases, he knew there was trouble ahead. The Pennington County court clerks refused to give him any of the documents he had requested for his clients, the Cheyenne River and Rosebud Sioux Tribes, so that he might assess the scope and depth of the situation within the state’s foster care system. Instead, the Judge required him to review the documents in the Judge’s office, but he was not allowed to copy them or make notes. As he began his research, Hanna says he had a growing suspicion that it was an accepted policy, practice and procedure to deny Indian families their civil and human rights in court proceedings at virtually every level of the state bureaucracy, including social workers, the Department of Social Services, the Pennington County state’s attorney and even the judges in the Seventh Judicial Circuit within South Dakota, all of whom declined to be interviewed by Indian Country Today Media Network, because the litigation is ongoing.
Now that the state had given its official response, Pevar and Hanna immediately agreed that they were going to pursue the only option left on the table: Filing suit in federal court to force South Dakota to stop taking Indian children from their families without due process, which includes adequate notice to the parents and a prompt evidentiary hearing, as required by federal law.
But which legal strategy to take in this byzantine case? Crafting the complaint, says Pevar, took a great deal of time and effort because of its complexity and groundbreaking approach. “We brought up every issue [in our meeting with the state] that we eventually included in our lawsuit,” says Pevar.
As ICWA foster cases continued to pile up in Pennington County, the tribes and their Indian parents were also beginning to organize and voice their outrage at what they believe is the denial of their inherent rights in abuse and neglect cases in which, to them, their children are hauled away into a system that appears to operate in absolute secrecy and opacity.
Parent of the Nation
Soon after the state declined to negotiate, Hanna set about identifying plaintiffs for a potential class action, while Pevar began researching and writing what would become the 38-page federal complaint, Oglala Sioux Tribe v. Van Hunnik.
Pevar had just published the fourth edition of The Rights of Indians and Tribes (Oxford University Press), and was confident he had a thorough understanding of the Indian Child Welfare Act. Because of his research, he was up-to-date on the most recent developments, case law and attendant issues with which the states and tribes had struggled since the law’s passage in 1978. Because he had begun his legal career in South Dakota, Pevar was familiar with both the state’s legal system and its historical political friction with the tribes.
With a team of legal researchers, law students, paralegals and scholars from across the country digging through case law and legal precedents to help prepare for this upcoming litigation, Pevar understood that there would have to be a new way to shape the language and structure of this particular lawsuit. Because of the enormous complexities involving sealed juvenile cases, parents, the tribes and a multitude of state employees—including the judges and the state’s attorney for Pennington County—it took over a year to get all of the moving parts to fit into a single complaint. A case of this nature and scope regarding federal Indian law had never before been attempted in U.S. History.
Over the next year, as the team gathered research and potential legal arguments to posit before the court, there was one idea that caught Pevar’s attention, something he thought might be favorable to the tribes in a federal case.
The legal doctrine known formally as parens patriae (literally “parent of the nation”), authorizes a nation, a state or a tribal government to sue on behalf of all of its citizens in situations where an action or series of actions may have deleterious effects either in the present or in the future on its collective members.
In plain English, it provides a sovereign government “standing” or the legal ability to intervene in a case where the rights of its citizens are at stake.
In 1999, the Navajo Nation had attempted to sue under parens patriae in federal court in Washington State, (Navajo Nation v. Yakima County, 1999) but had been denied. In that case, a Navajo couple sought to overturn an adoption of their biological grandchild. The court, however, held that the tribe had no “collective” interest in a voluntary private adoption. The court ruled that the grandparents had only a personal—not a tribal—interest in the adoption they were challenging.
But seven years later, four Alaska Native Villages successfully sued that state on behalf of their tribal members and all other native villages within the state over systematic violations of state and federal law in regards to adoptions and foster care removals under ICWA.
In 2006, the Alaska Supreme Court ruled that the tribes did, in fact, have standing under §1983 of Title 42 of the United States Code: “…here the villages attempt to bring a claim as parens patriae for the exact reason §1983 was enacted: to secure private rights against the wrongful acts of the government.”
Pevar believed that ruling meant the tribes of South Dakota could sue for vindication on behalf of not only their own members, but members of all tribes residing within Pennington County.
“A lot of conversations were taking place at the time about potential legal strategies [in Van Hunnik],” says Barbara Atwood, a civil procedure and ICWA scholar who teaches at the University of Arizona College of Law. “We were batting ideas around about the litigation, thinking out loud about how they could structure [the complaint] and whether they could proceed with parens patriae. You don’t want a tribe representing particular people with competing or conflicting interests. In the parens patriae role, the tribe is protecting the interests of all current and future tribal members—in terms of both immediate and long-term effects. This case fit that concept. At the same time, Stephen and I were also talking about writing an amicus brief on behalf of the ACLU in Adoptive Couple v. Baby Girl, so there was a lot happening [in regards to ICWA].”
Around the same time that the state declined to negotiate a compact, Pevar and Hanna were invited by members of the Oglala Sioux Tribe to a meeting in Rapid City discuss their “tremendous anger and frustration over how South Dakota was handling ICWA cases,” according to Pevar.
Soon after that meeting, the Oglala Sioux and Rosebud Sioux Tribes both passed tribal council resolutions giving Pevar and Hanna the green-light to pursue litigation on their behalf under the parens patriae doctrine.
“I’ve had a long relationship with the Rosebud Sioux Tribe, but every tribe in the state knows that ICWA is a problem in Pennington County,” says Hanna. “They knew how important it was to confront them about these issues in federal court. On the Pine Ridge Reservation, we had support from [the tribe’s ICWA director] Juanita Scharick, council member Lydia Bear Killer, Irving Provost Sr., and a lot of help from President Bryan Brewer. The Cheyenne River Sioux, though they did not join the case, were also involved and were backing us 100 percent. [Before the litigation was filed] we had been working and communicating with the tribes and their councils for over a year at their request.”
The tribes had had enough.
The Three Mothers
In October 2011, Madonna and Marlon Pappan had gone to a friend’s house in Rapid City to visit and have a few drinks. Later that evening, Marlon and their young daughter went out to the car to sleep, with the car running to keep them warm. Madonna Pappan says she checked on them a couple of times and everything seemed okay. But the third time she went outside, her life turned upside down.
The car, along with her husband and daughter, was gone.
Marlon Pappan apparently had decided to drive home. Madonna Pappan, who is a member of the Standing Rock Sioux Tribe, learned that her husband had been arrested for DUI on the way home and that her three-year-old daughter (an Omaha tribal member) had been turned over to the Department of Social Services.
She says that a police officer later contacted her by phone. During that conversation, the officer asked her if she had also been drinking. She said she had, but that she had not been drunk. She says the officer then told her that she would be able to get her daughter back the next morning. But the only thing she received the following morning was a business card stuck on her door with a terse note to get in touch with DSS.
The initial court hearing, she says, was confusing and ruthless. Not only had the state taken her daughter, but the deputy state’s attorney and social workers had advised Madonna Pappan that they were also going to take her 11-year-old son (who is enrolled in the Standing Rock Sioux Tribe), who was home with a babysitter at the time of the arrest, and that both children were to be placed into foster care pending further proceedings by the state. Subsequently, two social workers retrieved the boy from his school and placed in him a foster home that day.
According to court transcripts, Judge Wally Eklund then listened to a brief, five-sentence statement by deputy state’s attorney Jennifer Utter, who made a vague claim against the parents regarding “intoxication” as the reason for “emergency custody.” Judge Eklund then said the following:
“You folks wish to be heard on this matter?”
“What can we say?” Marlon Pappan replied, feeling helpless against a system that had already taken their children into state custody.
“Well, I’m sure the department will be working with you on this matter in an attempt to get the children back to you, but in the meantime, until this is sorted out, I’m going to grant the temporary custody as requested.”
With that, Judge Eklund ordered both of Pappan’s children into state custody—even though neither Madonna Pappan nor her son were present at the time of the arrest—and scheduled an “advisory” hearing scheduled for December 12.
“Everything was a blur [at the hearing] and it all happened so fast,” Madonna Pappan says through choked sobs. “I asked to see my son so that I could explain what was happening, but they wouldn’t even let me talk to him”
“The last time I saw him was when I dropped him off at school on October 21, 2011.”
Madonna Pappan says that at the time of the 48-hour hearing, neither she nor her husband were intoxicated in any way and that there was “no emergency” that would impede her ability to care for her children. Marlon Pappan later pleaded guilty to the DUI charge, which neither he nor his wife deny. But Madonna Pappan maintains that the events that night did not justify the removal of both of her children for nearly two months.
After her 48-hour hearing, Madonna Pappan waited for the court to adjourn for the day and says she asked the reunification worker, Amanda Quasney, what she could do to get her kids back. “She wouldn’t even talk to me, even though ‘reunification’ is her job.”
Moreover, Madonna Pappan had asked the social workers to place her children with her parents—a right that is specifically provided for under ICWA. Pappan’s parents were already certified as foster parents and had taken in numerous children on an emergency basis. They refused her plea and placed her two children in separate foster homes. Over the next two months, her three-year-old daughter would be moved two additional times.
An “advisory” hearing, which is the next step in the proceedings, was no guarantee the Pappans would regain custody of their children at that time; it was only to advise the parents of their rights and appoint an attorney if the parents could not afford one.
On her own, Madonna Pappan signed up for therapy, alcohol counseling and parenting classes to make it easier for her and Marlon to speed the process along. Additionally, she began searching for help among the ICWA workers in Rapid City. When she asked the state to notify the Standing Rock Tribe of her situation, she was told that the tribe never responded. When she went to the tribe, however, the ICWA worker told her that they were never given notice as to what was happening to the Pappans. To this day, the tribe is adamant that they were never given notice of the 48-hour hearing nor did they receive any request from the state that one of their tribal children was in state custody.
In late October, after searching all over Rapid City for help, the Pappans and her parents were told that Dana Hanna was a private attorney who had done ICWA work for some of the other tribes. So the four of them went to his office and recounted the events of the previous few weeks and what had transpired at the 48-hour hearing. Hanna listened to their story and then left the room for a few minutes, says Madonna Pappan. When he returned, he offered to take their case pro bono and asked her if she would also be willing to join an “ongoing case” that would address these issues. Madonna and her family immediately agreed. For the first time, someone had stepped forward to help them.
“The state’s attorney had advised the court that she was also in the car with the husband [at the time of his arrest], which was absolutely not true,” says Hanna. “The cop called her on the phone, but never spoke to her face-to-face [that night]. If there had been a real hearing and she had had a chance to speak, that mistake would have been cleared up. That is the purpose of having real hearings: So that the court can find the facts. That is why we require due process–to establish the true facts.”
Weeks later, Hanna and the Pappans showed up in court together. Immediately, Madonna Pappan says the momentum of the case shifted. By that time, the Omaha Tribe had agreed to allow Standing Rock to work on behalf of both of Pappan’s children.
“When Dana showed up with us, the whole demeanor [of the courtroom] changed,” says Madonna Pappan. “You could see in their faces that the social workers and the lawyers and even the judge were angry that my kids’ tribes were getting involved. It was clear that they didn’t like it.”
At that hearing, Hanna made a motion for the court to transfer the case to the Standing Rock Sioux Tribal Court, which was granted. Subsequently, he says that both children were turned over to the custody of the tribe, whose ICWA workers handled the transfer of Pappan’s children back to their mother.
On December 12, 2011, Pappan’s children were returned to her in a K-Mart parking lot in Rapid City by an ICWA worker from Standing Rock. The two children were returned to her without most of the clothes, shoes, coats, toys and other articles she had sent them during their time in custody, but she was happy just to have them back.
“There were a lot of tears and hugs,” she says, choking back tears. “My boy was angry, but my daughter was just confused. [DSS] had the nerve to say they were protecting them, but they hurt my babies even more by taking them away. It’s taken me a long time to talk about this. It was the worst time of my life.”
Before this brush with the state of South Dakota’s child welfare system, Madonna Pappan says she knew very little about the Indian Child Welfare Act or its provisions for Indian parents and tribes. But her experience as an Indian parent in South Dakota is not unique, says Hanna. In 2012, two other mothers—Lisa Young and Rochelle Walking Eagle—joined the case as plaintiffs in a historic class action suit on behalf of not only them, but all Indian parents residing in Pennington County.
Today, Madonna Pappan is busy taking care of her two children, but she has a message for Indian parents across the country: “Our children are sacred and we have to be stronger and smarter and pay attention. I hope this lawsuit forces the state to change so that our Native people don’t have to go through what I did.”
Now Come the People
On March 21, 2013, the tribes and the parents filed a 38-page class action complaint in the United States District Court for the District of South Dakota. Its title: “Oglala Sioux Tribe and Rosebud Sioux Tribe as parens patriae, to protect the rights of their tribal members; and Rochelle Walking Eagle, Madonna Pappan and Lisa Young, individually and on behalf of all persons similarly situated vs. Luann Van Hunnik; Mark Vargo; Hon. Jeff Davis; and Kim Malsam-Rysdon, in their official capacities.” Seventeen long months since Stephen Pevar listened to a story on the radio about the removal of Indian children while driving home had culminated into a landmark lawsuit that landed squarely on South Dakota’s doorstep.
After years of complaints from South Dakota Indian parents who say they and their children were traumatized by separations and draconian reunification policies, they finally had a voice. Anger from the tribes and frustration from their ICWA workers and lawyers regarding what they say is a lack of due process in implementation of the Indian Child Welfare Act in South Dakota had built to a fury as child after child continued to be swept into state custody for months at a time. The state has declined repeated requests for comment, citing confidentiality and the ongoing litigation.
The litigation, say legal experts, is groundbreaking for its sweeping show of solidarity by the tribes. They add that because the tribes are suing under parens patriae, that the class plaintiffs are seeking no financial awards or even to overturn the court’s previous decisions their own cases is unique. The tribes and their parents are seeking one thing: Definitive and actionable changes in the way South Dakota follows and implements the Indian Child Welfare Act within the state.
Additionally, the suit follows a very narrow and specific pathway regarding the daily policies, practices and procedures in the initial 48-hour hearings that constitute violations of the Due Process Clause in the Seventh Judicial Circuit of South Dakota.
“[Oglala v. Van Hunnik] is brilliant,” says Atwood, the Mary Ann Ritchey Professor of Law Emerita at the University of Arizona College of Law, who consulted with Pevar several times during the course of his writing the complaint. “It covers every single point [regarding the hearings and removals] and leaves no stone unturned, which is necessary for this kind of lawsuit. He and his team did an amazing job of putting all the pieces together and you can see it in the writing.”
Officials from South Dakota, who all declined to be interviewed for this story, immediately filed a Motion to Dismiss the case with Judge Jeffrey Viken, the Chief Judge for the United States District Court for the District of South Dakota.
What came next would make history.
Next: Part 4: Judge Viken’s Historic Ruling