Department of Justice Sues South Dakota Dept. of Social Services for Racial Discrimination

Assistant Secretary of the Interior - Indian Affair Kevin Washburn (l) at previous listening session in South Dakota

Assistant Secretary of the Interior – Indian Affair Kevin Washburn (l) at previous listening session in South Dakota

Published November 5, 2015

RAPID CITY, SOUTH DAKOTA – A lawsuit filed Tuesday, November 2, 2015, by the U.S. Department of Justice against the South Dakota Department of Social Services only serves to validate the argument the Lakota People’s Law Project has been making for the past decade — the DSS is a racially prejudiced institution that actively and systematically discriminates against Native Americans.

“The Lakota People’s Law Project has exhorted the DOJ to investigate and sue the state of South Dakota for rampant and widespread racial discrimination against Indians for several years, so this undoubtedly represents a major victory for our cause,” said Lakota People’s Law Project Attorney Chase Iron Eyes. “The state of South Dakota has nowhere to hide. We want the state to fully confront the fact that its policies enacted at the highest levels and spread throughout the entirety of the state government have systematically violated the rights of the Lakota, Nakota and Dakota.”

The lawsuit, filed in the U.S. District Court for the District of South Dakota, alleges that the South Dakota Department of Social Services enacted discriminatory hiring practices, by arbitrarily closing open job positions when highly qualified Native Americans applied, and then reopening them and hiring white people with significantly less qualifications.

“When employers discriminate against qualified job applicants because of what they look like or where they come from, they violate both the values that shape our nation and the laws that govern it,” said Principal Deputy Assistant Attorney General Vanita Gupta of the Civil Rights Division, who filed the case against the South Dakota DSS.

The Lakota People’s Law Project began investigating the practices of the DSS in 2005, after a group of Lakota grandmothers claimed the agency was seizing hundreds of Indian children from their homes and placing them in non-Native settings in direct violation of the Indian Child Welfare Act of 1978.

In subsequent years of investigation, LPLP found the DSS was taking 740 children from their homes on an annual basis, and approximately 90 percent of these children were placed in non-tribal foster care or adoptive settings.

While Native American children constitute 13.5 percent of the child population in South Dakota, they comprise 54 percent of the youth foster care population, according to the Child Welfare Outcomes compiled by the Children’s Bureau.

Aside from the blatant discriminatory animus present in South Dakota’s state institutions, a 2011 report by National Public Radio asserted that the South Dakota Department of Social Services received about $65 million per year in federal money for Lakota foster care due to the categorization of all Native American children as special needs.

“The state of South Dakota operates under a perverse financial incentive, as they figured out they could prey on the politically and economically marginalized people relegated to reservations and enrich their state coffers in the process,” said Bryan Brewer, former president of the Pine Ridge Reservation. “This is not only a large affront to our people, who have been mistreated and brutalized by an indifferent system for centuries, but it is an outright betrayal of the public trust and a despicable display of venality and corruption by South Dakota’s highest officials.”

The case itself centers on Native American Cedric Goodman, a 2010 applicant for employment specialist position with the DSS at the Pine Ridge office. At the time of his application Goodman met the objective qualifications for the position, according to the complaint. DSS interviewed six applicants, five of whom were Native Americans.

After interviewing the above applicants, the DSS decided to hire no one and canceled the position. The day after canceling the position, they sought other applicants by opening another vacancy announcement. The DSS then hired a white applicant, who had no work experience meeting the employer’s preferred qualifications.

“We believe the facts of the case speak for themselves, but let us be clear, the DSS’s hiring practices, while clearly deplorable, are one isolated symptom of a systemic, intentional, policy-driven program of discrimination against Native Americans,” said Daniel Sheehan, Lakota People’s Law Project general counsel. “This is not accidental nor sporadic, but this is a result of the blatantly racist policy and conscious conduct of the DSS and the entire apparatus of South Dakota’s state government.”

This latest lawsuit is the second of two major civil rights-related lawsuits to be brought against South Dakota, and involving the DSS, in 2015. The first was filed by the American Civil Liberties Union in federal court and was ruled in favor of the plaintiff in March.

The court ruled that South Dakota Judge Jeff Davis and his associates, many of whom worked with the DSS, violated the rights of multiple Indian families by willfully and systematically ignoring the dictates of Indian Child Welfare Act. Furthermore, it rules the entire court system, including lawyers and other officials, routinely violated the 14th amendment of the Constitution.

“The court finds that Judge Davis (et al.) … developed and implemented policies and procedures for the removal of Indian children from their parent’s custody in violation of the mandates of the Indian Child Welfare Act and in violation of the Due Process Clause of the Fourteenth Amendment to the United States,” U.S. Federal Judge Jeffrey L. Viken wrote in his 45-page ruling.

The DOJ filed Amicus briefs on behalf of the ACLU. Astonishingly, the DOJ not only argued the South Dakota officials violated the 48-hour hearing provision of ICWA, which was the express subject matter of the case, but they went on to argue that state and court officials defiantly violated the preferential placement mandate. Preferential placement is the central component of the federal law dictating states must actively seek to place Native children with their tribes.

Viken also said he would supervise the court and the officials to ensure his dictates were followed, inferring that he did not trust state officials to comply with the ruling due to the state’s track record of open defiance of not only an important federal law, but the Constitution.

These two lawsuits claiming invidious discriminatory animus toward Native Americans by South Dakota comes amid other incidents, including a white man escaping prosecution after he dumped beer on and hurled racial epithets at young Lakota children at a hockey game in Rapid City. It comes amid questionable killings of Indians by police and revelations that Native Americans comprise disproportionate jail populations in South Dakota and throughout the nation’s prison system.

“How long will America ignore what is happening in South Dakota?,” said Chase Iron Eyes. “How long will the United States tolerate the most egregious case of racism as it festers in the heart of the country. While these lawsuits are heartening and certainly help the cause, they are poor proxies in confronting comprehensive and widespread discrimination against Indians. We need firmer moral pressure on the oppressors who run this state before we can begin to reconcile and arrive at real substantive solutions.”

The Lakota People’s Law Project has been partnering with tribes and leaders in South Dakota since 2005 from its offices in Rapid City, SD and Santa Cruz, CA. LPLP’s activities have included funding and supporting Native experts to provide technical assistance to the tribes on family and child welfare issues. The project combines public interest law, investigation, research, education, and organizing into a unique model for advocacy and social reform.

The Lakota People’s Law Project is sponsored by the non-profit Romero Institute based in Santa Cruz, California. The Institute is named after slain human rights advocate Archbishop Oscar Romero of El Salvador. The Institute seeks to identify and dismantle structural sources of injustice and threats to the survival of our human family.

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