Updated at: 03/21/2013 7:09 PM
By KRISTI EATON
(AP) SIOUX FALLS, S.D. - South Dakota routinely violates the federal law governing foster care and adoptions for American Indian children by holding improper hearings after children are removed from homes, two tribes allege in a lawsuit filed Thursday.
The Oglala Sioux and Rosebud Sioux Tribes, along with three Native American parents, filed the lawsuit in federal court in Rapid City, alleging the state is violating the Indian Child Welfare Act. The lawsuit is part of an ongoing dispute about Native American children in foster care in South Dakota.
Federal law requires that Native American children removed from homes be placed with relatives or with other Native American families, except in unusual circumstances. Tribal officials contend South Dakota removes too many American Indian children from their homes and then puts them in foster care with non-Indian families.
The lawsuit alleges that when children are removed from a home based on accusations of neglect or abuse, parents aren’t given a proper hearing to determine whether a child should be kept away longer. Many Native Americans who leave the Rosebud and Pine Ridge Indian reservations move to Pennington County, which is home to Rapid City, and the lawsuit seeks class-action status for all Native American parents and custodians who are members of federally recognized tribes there.
The lawsuit contends that hearings are sometimes as short as 60 seconds and parents aren’t given the chance to introduce evidence showing their ability to care for the child or to question the state.
"If South Dakota officials would have the kind of hearing that is required by federal law, many of the Indian children who are being taken away from their parents would be returned," said Stephen Pevar, an attorney with the American Civil Liberties Union’s Racial Justice Program working with the tribes on the case.
The plaintiffs are seeking an order directing state officials to provide "adequate" and "meaningful" hearings.
The removal of Native American children in South Dakota has been an ongoing issue, and tribal and federal leaders are planning a summit to discuss foster care in the state. State officials have acknowledged that a disproportionate number of Native American children are involved in the child welfare system. But they said that is because they receive more referrals for alleged abuse involving Native American children, leading to more investigations and removals of children from homes.
The lawsuit names as defendants Department of Social Services Secretary Kim Malsam-Rysdon, Department of Social Services employee LuAnn Van Hunnik, Pennington County State’s Attorney Mark Vargo and 7th Judicial Circuit Court Presiding Judge Jeff Davis.
Vargo did not immediately return messages seeking comment. A representative for the Department of Social Services said the agency has not received any information about the lawsuit and did not have a comment. Davis also said he could not comment.
Bryan Brewer, president of the Oglala Sioux Tribe, said more than half of the children removed from homes in Pennington County are members of his tribe.
Brewer said that while tribal members realize children sometimes need to be removed from homes to protect them, "all too often over the years, South Dakota state officials have a history of unwarranted and unnecessary long-term removal of Indian children from Indian families."
Congress passed the Indian Child Welfare Act in 1978 because of the once high number of Indian children being removed from their homes by public and private agencies.
Brewer said that when state officials remove children without proof of neglect into non-Indian homes, the Native American children suffer emotional trauma, anxiety and depression.
"For years Pennington County, courts, judges and the Pennington County’s attorney have allowed the state of South Dakota and the Department of Social Services to take children _ Indian and non-Indian _ from their homes and family and place them in foster homes for months at a time, without requiring the state to produce any meaningful evidence in a fair and meaningful hearing," Brewer said. "This is an abuse of state power."
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(Copyright 2013 by The Associated Press. All Rights Reserved.)