Judge Viken: SD Violates ICWA in Lakota Foster Care Hearings

NPR’s Laura Sullivan is back on the South Dakota beat covering the ongoing Indian foster child scandal. Listening to NPR just now, I learned from Sullivan that federal Judge Jeffrey Viken ruled last night that the Seventh Circuit Court, the Pennington County State’s Attorney’s office, the state Department of Social Services, and  has regularly violated the rights of Indian children and parents by denying them proper due process in foster care placement hearings required by the Indian Child Welfare Act. Judge Viken finds…

  • In 77 of 78 cases, hearing transcripts make no mention of the ICWA affidavits that DSS asserts it gave to parents to inform them of their rights and the charges provoking the state’s effort to take their children.
  • Judge Jeff Davis rattled through a standard script in this 48-hour placement hearings and advised Indian parents they didn’t need to get a lawyer.
  • “Judge Davis and the other Seventh Circuit judges presiding over 48-hour hearings (all jointly referred to as the ‘Seventh Circuit judges’) never advised any Indian parent or custodian they had a right to contest the state’s petition for temporary custody during the 48-hour hearing…. The Seventh Circuit judges never advised Indian parents they had a right to call witnesses at the 48-hour hearing. The Seventh Circuit judges never required the State to present sworn testimony from a live witness” [pp. 18–19].
  • Judge Davis bears liability for this policy of discrimination, because no state statute compelled him to rule the way he did in these placement hearings, and the other defendants bear liability because they acquiesced to Judge Davis’s practices, creating “the appearance of regularity in a highly irregular process” [p. 27].

The ACLU, which is helping the Lakota plaintiffs, says Judge Viken ordered the state to take the following actions:

  • Provide parents with adequate notice prior to emergency removal hearings
  • Allow parents to testify at those hearings and present evidence
  • Appoint attorneys to assist parents in these removal  proceedings
  • Allow parents to cross-examine the state’s witnesses in the hearings
  • Require state courts to base their decisions on evidence presented during these hearings [American Civil Liberties Union, press release, 2015.03.31].

Too many Indian children and parents have been denied their rights under the Indian Child Welfare Act, perpetuating the ugly tradition of Western war against Native culture. Let’s hope Viken’s ruling stands and protects more Lakota families from our imperialism.


77 Responses to Judge Viken: SD Violates ICWA in Lakota Foster Care Hearings

  1. Bob Newland

    Yesterday US District Judge Jeffrey Viken told South Dakota judges, state’s attorneys and the Dept of Social Services that they could no longer kidnap Indian children and give them to white foster families for raping while getting paid by the federal government. One might think that should have been an obvious conclusion, but then, this is South Dakota. No doubt, the kidnappers will appeal.

  2. mike from iowa

    Any idea whether the plaintiffs can sue for damages? There should be some criminal charges here somewhere. Seems pretty obvious this was done deliberately and callously towards the plaintiffs and their children.

  3. Bob Newland

    The ruling didn’t address your question, Mike. I’d guess that any lawsuits will be dismissed because everyone involved “was just following orders.”

  4. larry kurtz

    Crimes committed against thousands of families and South Dakota Governor Dennis Daugaard has proclaimed April as the Month of the Military Child.

  5. mike from iowa

    Like the Who sang-“We won’t get Nuremburged again”. Thanks Bob.

  6. Deb Geelsdottir

    I hope criminal charges are possible. I also hope they get sued into cardboard huts! My god. This is absolutely nauseating public racist child abuse.

  7. Davis (can’t seem to call him judge) needs to spend more time with his family, along with the rest of the court that heard this and did nothing. Disbarred and sued would be appropriate.

  8. Douglas Wiken

    A recent story in the RC Journal about a white family that sought help with a troubled child and then ended up losing all their children suggested that the problems with the system were not limited strictly to Native Americans. The family had their reputation smeared and the parents were imprisoned but did finally get their daughters back after significant legal expense.

  9. 90 schilling

    Can’t agree with you more, Jerry. How about an audit of CHS, income growth linked to native children lost to DSS. An interesting link or two here on CHS.

    http://nonprofits.findthecompany.com/l/273058/Childrens-Home-Society-Of-South-Dakota
    http://mitchell.areavoices.com/2011/10/26/npr-hits-hard-at-sd-social-services-daugaard-and-childrens-home-society/

    Of course as we know with EB5, being the CEO doesn’t mean you share any of the responsibility for the corruption.

  10. And in Newell as we see in the NPR story, Doug, when DSS is somehow forced to release the children, they leave the family with the friendly warning, “we can come back anytime we hear things are not right”.

    Nothing like living a life in fear.

  11. Hallelujah. So, so long overdue in a system that apparently masked its prejudice in seemingly false process. The whole DSS-prosecutorial industrial complex likely is crying in its split milk from Aberdeen, to Belle Fourche, to Rapid City. The faults found by Judge Viken and others are likely systemic, institutional, and require radical measures to drive it out, and cry out for protections and reparations from over-zealous prosecutions.

  12. The other good part of this decision is that it put’s the state on notice that:”Yes, there are checks and balances and you are not untouchable.” This should go way beyond just the DSS.

  13. The only way to finally get away from the corruption that has taken over politics in South Dakota root and branch is to finally have the federals come in to clean it up. These judges are just the tip of the corrupted iceberg. We have Lenderman who just resigned, now what was that really all about? Heat coming from some interesting contributions? Al Capone was brought down by following the money trail as we now know, Bollen has now received a banking license for his part in the corruption. The corrupted department of revenue cannot and will not go after Bollen for the taxes due on the money he, Rounds, Daugaard and Benda got away with, so we need Eric Holder to come in to finally put the mob where they belong. The whole barrel is rotten to the core. At least the children that have been torn away from their families will no longer have to worry about the consequences of corrupted judges destroying their lives. It makes me wonder, how much money they got under the table for doing this. The feds pay for the services, so how much were the kickbacks?

  14. I think our social workers are vastly underpaid compared to the surrounding states, and that if we paid them more it would fix this problem. At least if we paid the good social workers more. Don’t tell me that you can’t sort out the social workers, because yadda yadda some have to work with harder people and it’s just not fair to base the outcome of some insaner than most individual on their raises. I say to you, I bet you the social workers can come up with a way to sort themselves out.

    Then, we pay them more. Problem solved.

  15. Patrick Duffy

    Grudznick, I’m going to get your attention by telling you up front that you don’t know what you’re talking about. Back during the early Janklow days, the requirement that actual, real “Social Workers,” those who’ve earned that title by education and training, were eliminated in South Dakota. Most of the alleged “social workers” presently working at DSS offices across the state are not “Social Workers” at all. You’ll see lots of criminal justice majors from Black Hills State, sociology majors from Northern, a bevy of soft majors, lackluster academic performers.

    Most of these people want to become cops. If you’ve read this far you’ve figured out that I’ve sued DSS, an almost impossible task. So when I tell you about the social worker imbroglio, here’s how bad it got, I know — national social worker org. finally told South Dakota on the third, fourth time, we will sue you if you don’t stop calling your unqualified personnel “social workers.”

    That’s why they all bear Orwellian titles like “family reintegration specialist,” or some such nonsense that could have been coined by Goebbels himself. The state had to rename them and give them names that inspired obedience and lent them an air of legitimacy. I’m not making this up. Most of what is called “social work” in this state is the brutal kidnapping of children from their families. Why?

    Easy. Money. And it’s gotten to be easy money. The initial seizure of a child, the forty-eight hour hearing, each “visit,” the appointment of a “family reintegration specialist,” the supervised visitations that are observed behind one-way glass, videotaped, all of these events are reported to the legislature, every year, as an “incident of funding.”

    The more you can stack up “incidents of funding,” the more money you make. Believe me, I’m not making this up either. I have pored through DSS budgets and testimony. The legislature, by and large, is completely complicit because it has been completely destroyed by term limits. They are very gullible. It is very easy to start reporting numbers and, of course, numbers sounds like bidness. And of course government should run like Bidness. And so it goes.

    It takes me hundreds or thousands of hours to master something well enough to take it apart. I’ve done about a half million dollars in pro bono work for the environment. Another half million or so on Indian Voting Rights. A bunch on EB-5. It takes a lot of time to learn this stuff. In any subject area, it’s a long slow grind to anything that looks like charisma in the courtroom.

    Legislators don’t have time, aren’t back for long, sustained periods, we don’t let them do this anymore. We throw them out of office with term limits because propaganda told us to, so we do it. So nothing is mastered and nothing gets done or, at the other extreme, we jack up the speed limit to eighty after about ninety seconds of legislative work. It’s high school.

    Bear with me. What we have seen over the course of the last decade or so is that fewer and fewer legislators work together. At the end of the day you run back to your room at the Ramkota and strip down, shower, order room service, and fire up the computer.

    The most bitter political battles during a legislative session take place on Facebook, maybe places like this, over at Dakota War College, places where Narcissus reigns supreme.

    And meanwhile colossal octopi like DSS or a runaway prison system simply go berserk right under the noses of the legislature.

    The predations of DSS are staggering, simply at times beyond comprehension. Because we call them “incidents of funding,” and these “incidents” let us gorge at the federal trough while preserving the hillbilly myth that we actually balance our state budget (if you’re Mike Rounds, not without billions from Barack Obama), they serve some of the darkest of legislative impulses. So this kind of Orwellian complexity serves injustice very, very well when your representatives get younger and younger and dumber and dumber and meaner and meaner all the time. Throw in corporations as people and Citizens United and the money-making potential in the judicially-supervised kidnapping of Indian children is as lucrative as the incarceration complex we’ve built and love so much.

    Here’s why real social workers are so important and such a treasure to ordered society. A real social worker would ask, is the harm to the child in removing him greater than the harm of letting him stay with his folks, maybe with a little help? That’s pretty much common sense.

    But government runs more and more like a bidness. So you get everything from EB-5 to scenarios like Jeff Davis giving crying Indian families sixth seconds to say goodbye to kids they may not see for a year.

    Gone in sixty seconds. Mull that over. When those kids come back home, if ever, they’ll need loads of therapy. More fingers in the government wallet. And those who give them therapy will diagnose “oppositional defiance disorder,” a joke diagnosis that basically tells little Johnny if he isn’t Wild about being taken from home by cops, often at night, he’s nuts.

    And there’s money in it, loads of it, from the moment you wreck a little boy to when you start locking him up in the pen.

    And the legislature aids and abets it all.

    I wish we had more oppositional defiant disorder among our legislators.

    The world would sure be a better place if we did. And if we could just slow down and stop preying on little kids for money, we might just make ourselves better in the bargain, too. I sure hope so.

  16. Grudz tries for his usual pale satire; Duffy enters to discuss real issues. Uff da.

    Preying on kids for money—if parents would like to go on strike and shut down Rapid City for a day, I’d support that protest. Or maybe our friends from Pine Ridge need to set up a spirit camp in the middle of the Rotunda.

  17. tara volesky

    This is what the Family Values, pro-life, Republican establishment and Family Christian Heritage refuses to address and covers up from the people. I just want to say, and Natives and Whites will agree, that it goes both ways. Check out the fb page Angels Need Your Help. Let’s see if Lame stream media calls Mr. Duffy for a story.

  18. Great to hear from Patrick Duffy.

    As much as I enjoy the commentary in here, it is refreshing to hear from someone who has actually been immersed in these issues.

  19. Duffy’s insight explains why the lawsuit isn’t over. From the NPR transcript: Pevar, with the ACLU, says the tribes will work with the Justice Department and the courts to develop guidelines for South Dakota and other states as well. He says they will take up a final piece of the lawsuit – the Department of Social Services and its training of employees – next. Laura Sullivan, NPR News, Washington.

  20. mike from iowa

    I have some problems with Duffy on occasion,but this comment of his needs to be an op-ed all over the state and the nation. I’d like to copy and paste it at various blogs with Mr Duffy’s permission.

  21. Lora Hubbel

    Patrick Duffy….so sorry I have not heard much about you. You sound like you have been inside my brain and recorded every thought. You had a few errors in your response, however….the inexperienced, uninformed legislators do not usually go to their hotel after session, order room service and fire up their computers…they go to several lobbyist wine and cheese parties or Jason Glodt’s “basement” (in fact you can see some of them making out their party schedule while session is on). You give a good example of why we should pay our Legislators $40K a year and make them actually work (write their own bills, sign an affidavit that they have read any bill they vote on, work with the regulation implementation, host town halls regularly). Then cut the “Departments” deeply since the legislature would be doing their job.
    Another thing you missed: It’s not just Indian children the state is using as a commodity. Evidently their appetite for easy money via child kidnapping was whetted and now they are going after all SD children (unless they have a political cover).

  22. Amen to the praise for Duffy, Esq. Excellent, thorough analysis and commentary.

  23. Donald Pay

    I agree with most of what Pat Duffy said. The one place where I disagree is on term limits. A lot of the damage to the state workforce occurred, as he said, during the first Janklow reign, which was prior to term limits. Janklow used executive reorganization and other means to dismember professionalism in the state bureaucracy. He wanted agencies that would do his bidding, not act in the best interests of the state.

    The Legislature could have stepped in, but they were, for the most part, cowards, political toadies and ciphers. They were also, as now, almost exclusively Republican. They were also extremely old with far too much legislative seniority, especially in leadership. This was the leadership that was cleared out by term limits. We are far better off that those folks got swept out.

    The problem with the Legislature is not with term limits. The Legislature works best when it has a more even partisan split. A one-party state leads to generations of dysfunction.

  24. Lora Hubbel

    Donald Pay….thanks for the history….is that why Janklow appointed a pretty little smile who had a 4 year degree in Poly Sci as his Secretary of HEALTH?!!! Someone who would tell doctors, cardiologists, neurosurgeons what they could and could not do per the whims of the insurance companies? If others were given their Department posts with the same gubernatorial “consideration” its no wonder we became the 2nd most corrupt state in the nation.

  25. Bob Newland

    Rarely does anyone have the privilege to read such an eloquent scientific dissection of a rotten animal, which is my assessment of what Duffy did above. Bravo.

    Don Pay, I supported term limits. Now I see how it led to a drop in legislators’ collective IQ by an order of magnitude. Oh, for the days when the legislature was only moderately lame.

  26. Bob Newland

    This just in; Marty Jackley resigned.
    http://sodaklp.org/Jackley/jackleyresigns.htm

  27. We need to pay our good social workers more money. That’s a proven fact.

    Mr. H, are you the kind of politician we can trust?

  28. Feeling Blue in a Red State

    What PD says is true in the mental health world too. “Counselor” is the legally protected term in SD, so anyone can call themselves therapists. Lots of non-profits are employ folks as children’s-home-based-therapists when they have no formal education in providing counseling. Sure they are supervised by a licensed counselor, but those supervisors are stretched thin as it is.

  29. mike from iowa

    Jackley had the a-hole part right.

  30. God bless you, Patrick. Few in your position have the ambition, moral compass and extreme desire for Justice you’ve shown. Thanks for your thoughts. I expect nothing less from you.

  31. I normally would not comment, but am intrigued by Mr. Duffy’s post. It is not that often that a fellow attorney dives into these discussions. I have a few disagreements, observations, and questions.

    I tried googling the phrases “incident of funding” and “incidents of funding” and got nowhere, which suggests to me that it is not a standard term used when discussing government finances. I’m hoping you could enlighten me, as I have also been trying to gain a good working knowledge of the finances of DSS. I would be happy to buy you lunch in exchange for said knowledge.

    The money argument you make seems to miss the point that virtually all federal funds require some level of state match. The fact that we have not expanded Medicaid despite the feds paying for 90%+ of said expansion is evidence of our policy makers’ unwillingness to spend just to bring in federal money. Perhaps an incident of funding is something used by DSS to present quantitative numbers to the legislature when seeking state funding for the department?

    The idea that kids are just being scooped up for money is also generally contradicted by the circumstances that bring them into care. A large number of ICWA affidavits were made public as part of the federal suit. I don’t think anyone can read those and come away with the impression that DSS is just scooping up kids for no reason. Those affidavits are available on my website:
    http://www.dakotahillslaw.com/why-indian-children-are-being-removed-what-the-affidavits-say/

    I have had my fair share of disagreements with DSS, and there is plenty that can be improved. However, saying that most of what they do amounts to the “brutal kidnapping of children from their families” is strong rhetoric that cannot be supported.

  32. Mark Butterbrodt, MD

    Thanks to Patrick Duffy for the good analysis and the hard work of trying to make SD DSS work for the benefit of Native families. I have spent my 35 year career as a pediatrician working with Native families in urban areas and on the reservations and was an early supporter of ICWA. Mr. Duffy’s bleak summary and my own disheartening conversations with people who are in a position to make ICWA work in the way it was intended–to keep Native children with Native families because they will do better in the long run–is that it is going to take a lot more than this lawsuit to make real changes. Opposition to the fairly well established finding that Native children do better in Native foster homes from the Governor’s office, the AG’s office, SD DSS, and from legislators on both sides of the aisle but Republicans in particular is deep, stubborn, and unlikely to change very much. Ways will be found to get around this ruling because it is profitable to do so, as Mr. Duffy points out. When I was on the ICWA board of directors in the Twin Cities 20 years ago, both Hennepin and Ramsey counties worked hard to recruit and support Native foster families. This is needed to make the aims of ICWA a reality. What do you think the probability of SD DSS, the AG’s office and the governor’s office getting behind something as enlightened as that, given the bigoted biases against the fairly well established fact that Native children will do better in Native foster homes? For those who put dollars before conscience and doing what is right, the idea of admitting that they have been wrong all these years is unthinkable.

  33. bearcreekbat

    Kyle is right about the reasons for removing Native children – CPS workers care about kids and take steps to protect them if they see evidence that these children are in danger. But Kyle and Duffy both seem to miss the point of the lawsuit and of the District Court’s ruling.

    The District Court did not rule that children were taken improperly nor did it rule they were taken for improper motives. Instead, the District Court ruled that once Native children were removed from parental custody, the system broke down and those responsible for trying to return the kids to safety in their homes failed in their duties under ICWA and the Due Process Clause.

    The failures included holding kangaroo court 48 hour hearings. Among other things, the District Court found that at these 48 hour hearings Judge Davis, some other state court judges, Mark Vargo and his deputies, and DSS representatives failed to inform the parents about the alleged conduct leading to the removal; failed to give parents copies of the ICWA affidavits and Petitions; failed to appoint an attorney for the hearing; refused to allow parents to call witnesses for the kids or themselves or and cross-examine the people who prepared the ICWA affidavits; all of which violate due process of law, ICWA, and South Dakota statutes governing 48 hour hearings.

    There is much more to the District Court’s ruling that the Judges, prosecutors, DSS workers must be terribly embarrassed about, but there is nothing in the opinion I saw criticizing the work of the child protection workers in the trench who dealt directly with the families. There was also nothing I saw suggesting anyone was motivated by money to keep children apart from their parents.

  34. tara volesky

    Don’t miss the news conference this afternoon. There are people coming out to tell their stories.

  35. “”CPS workers care about kids and take steps to protect them if they see”” ask the parents and grandparents about this broad statement, bear. Ask the Hillands over in Newell.

  36. mike from iowa

    As near as I can tell,these district court judges are still on the job. How can that be? Hasn’t it been proven beyond any reasonable doubt they violated judicial ethics and the laws of the land?

  37. lora hubbel

    Mike from Iowa….How can this be you ask? Because this is SD…one of the most corrupt states in the nation. How can this be? This case is just one of many…a symptom, if you will, of a much broader problem. This corruption manifests itself by people in SD suffering at the hands of their political leaders. We have a single party rule (so does China, so did Germany, so does any totalitarian regime) that cover for each other…that believe they are above the law because they either create the law or exonerate their comrades from it. We have no ethics board, except maybe the legislature and they are underpaid, weak, powerless and lied to by leadership.
    Let me tell you how others have suffered at the hands of the legal system. First of all the semblance of peace is a high priority…justice is a low priority. If the SD legal system can make it look like we are tough on crime, by god, we will incarcerate anyone and take their money PLUS the federal matching funds to throw these innocent people in jail. Besides, throwing people in jail just decorates the government’s trophy case. SD will put people in jail, label them a sex deviant by giving them a felony and then taking away their gun rights because they peed off the XYZ frat house deck during a Friday night party. But if it’s a friend…look the other way…even if a girl gets raped by a former Governor’s son at the mansion during a party.
    SD has destroyed a raw milk farmer because the small dairy would not take the Chinese EB-5 money…they were told them to go big or go bust. South Dakota ruined the couple when they refused…regulated them almost into ruin…when that didn’t work the State called their State Ag loan (which they had perfect payments for over 7 years).
    There is a good doctor in federal prison because he warned the state about ObamaCare…a money maker for the state and for “valued added” businesses run by “friends” (donors) like data collection and insurance sellers. Before the black cars of the feds surrounded his little office, Dusty Johnson (from the governor’s office) was hanging around the doctor’s desk “just visiting” with him. The trial transcript actually says, “What this man did was not illegal, he just didn’t pay his fair share of taxes!!!!” The Doctor deferred his taxes in an account that he would pay the taxes when he withdrew from it.
    No child is safe when under the current governor, “child abuse” rises 39% (NOT…child removal may have increased 39%) The Governor’s past employer, Children’s Home Society is a benefactor of the money that comes with removing kids from their homes. Sleep well SD…hide your head in the sand. As you drift off to slumber, dwell on the Bible verse that says, “Rescue those who are unjustly sentenced to die…don’t excuse yourself saying, “We didn’t know!”. For God understands and sees all hearts….and He knows you knew. (Proverbs 24:12)

  38. The more we uncover in our state the more depressing it is. It’s taken years to get this bad, widespread and entrenched.

  39. Judge Davis does not represent all circuit judges in SD, Lora. Why he is still on the bench is beyond mystery to me. Judge Fuller is the only judge removed by the Supremes and there is no evidence of any boundaries set by 7th circuit presiding Judge Davis. Fuller may have been a jerk but he recognized racism, possibly in Davis as well.

  40. bearcreekbat

    Les, Just as Judge Davis doesn’t represent all SD Judges, the CPS workers involved in the cases you mention do not represent all CPS workers. My statement was broad, and was made on the assumption that an intelligent audience understands there are exceptions to any rule when discussing groups of people.

    I read the stories about the Newell case and it is certainly troubling. I did notice, however, that the story reports that the people that broke up the family were not lead by CPS workers, rather, it was a Meade County Sheriff that made the decision to arrest these parents when they sought help from DSS. It was a thoughtless deputy states attorney brought apparently unfounded charges that broke up the family and harmed the children. It was the Court that set such a high amount of bail, unnecessarily keeping the parents in jail and essentially bankrupting them with legal costs.

    Over the years I have disagreed with the decisions of numerous CPS workers, but I have never found any evidence that a single worker wanted to harm a child by intervening. Placing the blame on the CPS worker for the harmful decisions of the Sheriff, deputy states attorney, and judge who set the bail, misses the mark by an extremely wide margin.

  41. There is a great deal of money involved in all of this as well. What about these kinds of taxpayer monies for questionable services? How was this accepted by barristers and other interested parties for so many years that declare Native children as “special needs” so the rate jumps up? How about the families that were bankrupted both morally and monetarily, what kind of retribution can they expect?

  42. “”made on the assumption that an intelligent audience”” I question your thought process, bear. ;)

    I don’t believe the bottom end of cps is intentionally out to hurt anyone, most of the time. That they do so, while following orders or due to lack education or experience is not acceptable and if the system is so darn perfect why are there so many unacceptable results?

    Our social programs in SD have been so stiffed by the beaurocracy, there is little to work with. Rather than front loading our programs of education and social adaptation of sorts, we back load the judicial on through our prison system spending more on incarceration than education.

  43. tara volesky

    I believe these young reporters are going to break away from the strong hold of their corporate bosses and report the real stories of South Dakota. The people of SD will back you. It just takes a little courage.

  44. bearcreekbat

    Les, at least I am confident that you are an intelligent poster. And I do agree that if a CPS worker harms kids (that worries me more than harming parents, although both are wrong) because of following bad orders or due to lack education or experience, that is not even close to being acceptable.

    As I read Judge Viken’s Order, I believe the Plaintiffs have alleged inadequate training of CPS workers, particularly on the requirements of ICWA, and that Judge Viken has not yet ruled on that issue. Given the federal District Court’s ruling that DSS supervisors illegally deferred to Judge Davis’ unlawful procedures, I will be surprised if the Plaintiffs don’t prevail of the training issue.

  45. jake kammerer

    again,,, follow the money and who benefited most from the crime will appear!

  46. I am not very aware about this case, but duffy’s comment about more fingers in the govt. wallet annoys me, as it is aimed at Indian children retroactively needing therapy. appropriate mental health care is essential, and when an institution, politically or otherwise injures its members, they have every right to redress at institutional cost. granted, it will never be adequate.

  47. Mark Anderson

    It’s interesting reading Kyle Krause’s comments, all you have to do is read his many comments on the NPR reporting to see that his statement “strong rhetoric that cannot be supported” applies to himself also.

  48. Mark, feel free to identify specifically what statements you believe I have made that cannot be supported. The accuracy of Laura Sullivan’s NPR reporting on this issue has been, and continues to be, demonstrably atrocious.

  49. tara volesky

    Can you explain Mark, why you think Laura Sullivan’s NPR reporting is demonstrably atrocious?

  50. larry kurtz

    Mark: if you have any evidence to support your bullshit comment text me. 605-484-7288 otherwise your opinion is just another slur.

  51. larry kurtz

    This story is wired right into the bedfellowship between the Children’s Home Society, the Sioux Falls and Rapid City Catholic Dioceses and Jeremiah Murphy.

    Heads will roll.

  52. larry kurtz

    Kyle Krause: who is your client?

  53. Kyle Krause

    Tara, I assume your comment was directed at me. For a more in-depth discussion of why Laura Sullivan’s NPR reporting is demonstrably atrocious, I suggest reading the six part report of NPR’s own Ombudsman, the first part of which I have linked below. The Ombudsman concluded “the infractions in this series are so frequent and so serious that they are a case study in how not to do radio ‘storytelling.”
    http://www.npr.org/blogs/ombudsman/2013/08/09/186943929/s-dakota-indian-foster-care-1-investigative-storytelling-gone-awry

    Additionally, I would suggest some of my old blog posts, as I have written plenty in the past. They can be found at the following link:
    http://www.dakotahillslaw.com/legal-news/

    Here’s a short list of some of the issues with Sullivan’s reporting:

    1. She uses dollar figures in her reporting that have no objective basis in reality.

    2. It appears that the centerpiece of her original story, the case of the Howe children, was handled by the TRIBAL COURT.

    3. Even her most recent story was exceptionally misleading in that she tries to make it appear that the federal lawsuit dealt with the placement preferences when it had nothing to do with them. Here’s a direct quote from her most recent story:
    “A federal judge has ruled that the state Department of Social Services, prosecutors and judges “failed to protect Indian parents’ fundamental rights” when they removed their children after short hearings and placed them largely in white foster care.”
    The addition of “and placed them largely in white foster care” is hugely misleading. Where the kids were placed following removal was not an issue, and the ruling would have been identical if 100% of the kids had been placed in Native foster homes. Link to the story:
    http://www.npr.org/blogs/thetwo-way/2015/03/31/396664863/federal-judge-says-south-dakota-officials-violated-native-american-families-righ

    Sullivan is a master of advocacy journalism. Based on my own personal conversation with her, I believe she places a premium on impact over accuracy. This might be more acceptable if her bias was made explicit, but the stories are presented as objective reporting from a source that should be more trustworthy.

  54. Kyle Krause

    Larry – I have a lot of clients. Relevant to this topic, I have represented children in abuse and neglect cases on a court-appointed basis and parents in such cases on both an appointed and retained basis. I assume your comment is based upon a suspicion that I have a financial interest in commenting on this issue. The best I can do is simply say to you that I do not. I do not represent the state or any business interests. This is primarily me wasting my time on a topic of interest.

  55. tara volesky

    Hey Kyle, Sounds like you are a bright young attorney that cares about children. Would you agree that there are problems with ICWA, just as there major problems with DSS. What bothers me is Marty Jackley and Dennis Daugaard act as if there is nothing wrong and they run and hide when they are addressed questions concerning the well being of our children. What do you think about the Mette rape case, the Brady Folkens death and the Boes foster children that were taken away aka Angels Need Your Help. There is a reason SD is one of the most corrupt states in the nation. To many children are dying at the hands of the state.

  56. lorahubbel

    I really have no horse in this race, but Kyle Krause just weaved 5000 words and did exactly what he claims Laura Sullivan did….he chastises her for not using hard numbers…and yet I just saw mumbo jumbo in HIS numbers. Nothing researched or accurate in his tome. I guess that leaves the reader to decide which fabricator they want to believe…hmmm… kinda like the pot calling the kettle (opps is that racist?)

  57. Kyle Krause

    Lora, feel free to point out anything specific I said that was incorrect. I don’t believe you can.

    Tara, there are a plethora of improvements that could be made to our child welfare system. Regarding the cases you mentioned: The Mette case was handled very poorly and smells fishy, but I’m not willing to pretend I know the motivations of those involved. I think Brady Folken’s mother would have lawyers lining up to take the case if there was a case to be had (wrongful death of a child + deep state pockets = potentially large judgment). That doesn’t mean things should not have been done differently, but there likely was not anything egregious. I am unfamiliar with the other case you mention.

  58. larry kurtz

    Mark, my apologies to you.

    Mr. Krause:

    In this instance, however, we find his unprecedented effort to “re-report” parts of the story to be deeply flawed. Despite the report’s sweeping claims, the only source that figures in any significant way in the ombudsman’s account is a state official whose department activities were the subject of the series. Additionally, the ombudsman’s interaction with state officials over the past 22 months has impeded NPR’s ability to engage those officials in follow-up reporting. Overall, the process surrounding the ombudsman’s inquiry was unorthodox, the sourcing selective, the fact-gathering uneven, and many of the conclusions, in our judgment, subjective or without foundation. For that reason, we’ve concluded there is little to be gained from a point-by-point response to his claims.

    http://www.npr.org/2013/08/09/210615253/editors-note

  59. tara volesky

    Kyle, she has a huge case, so does Shirley Schwab, Brandon Taliffero, the Mette children, the Boes family along with the children and hundreds of other children and families that have been traumatized because of ignoring the problems that could have been solved years ago with ICWA and the DSS. How much longer is this going to continue. This is a crisis in SD that media doesn’t even want to report on? What’s with the media blackout the other day. Are these reporters getting some pressure to not report these stories from the hands that feed them?

  60. Kyle Krause

    Larry, you can see my thoughts on the response you posted on my website at the link below.
    http://www.dakotahillslaw.com/some-initial-thoughts-after-reading-npr-ombudsmans-critique-of-native-foster-care-series/

    The NPR response you quote was about as meaningful as Lora’s response to me earlier. Basically, it was, “we disagree, but refuse to get into any details as to why.”

  61. Kyle Krause

    Tara, when people have a “huge case,” as in the strong potential for a large monetary award, it is not difficult to find an attorney to take the case. That’s the simple economics of the legal profession. If some time has passed and there is not actually a legal action pending, that is often a good indication that there was not really a “huge case.”

  62. larry kurtz

    @larry_kurtz Thank you for keeping me posted!— Laura Sullivan (@LauraSullivaNPR) April 7, 2015

  63. I’d say you have yet to tangle with state government, Kyle. Huge case or not, great attorneys or not, they have the resources to bury you in paper. Most attorneys know that.
    If you as plaintiff are in business, they also have the resources to attack your biz from many angles.

  64. Hath Hell frozen over at 11:42, Lar?

  65. larry kurtz

    Ms. Sullivan and i follow each other on twitter, Les so i tweeted her the link to Mr. Krause’s comments. Pennington County and subsequent coverups by members of a GOP-backed judiciary are criminal and are being investigated by the US Justice Department. No Republican politico in South Dakota is any less complicit than former and current governors are.

  66. tara volesky

    Kyle, apparently you’re not a South Dakota boy. Either is Brandon Toliferro. Just ask him how he likes being an attorney in SD, You’ll do fine as long as you’re in the club. The BTO’s don’t care about the little guy. They do care about children though because they make millions of dollars off these innocent victims. Kyle, just try suing the state of SD a few times or question their motives and see what happens. One party dictatorship for 40 years with no checks and balances. Go figure young man.

  67. Kyle Krause

    There’s a limit to the extent discussion here is useful. But, I do readily admit when I am mistaken about something, and therefore need to correct an earlier statement. My conclusion that nothing egregious likely occurred in Brady Folken’s situation probably does not follow from the fact that there is not a pending lawsuit. The reason is that the State likely would have sovereign immunity in any lawsuit, which removes the deep pockets needed to make such a case a good economic proposition for an attorney. This means it is not a “huge case.” However, that does not mean that something was not done wrong. A few cases on the sovereign immunity topic if anyone is interested:
    Christensen v. Nelson (Dist. Ct. of SD, 2010) (Summary Judgment Memorandum Opinion and Order)
    Nat. Bank of S.D. v. Leir, 325 NW 2d 845 (SD 1982)
    Kyllo v. Panzer, 535 NW 2d 896 (SD 1995)

  68. tara volesky

    Kyle, if you do fb, friend me and listen to the 26 minute interview with the ACLU attorney that just won the case against the state. I have it posted on my page. Thanks.

  69. tara volesky

    Did those idiots change the law after the Gina Score settlement. Unbelievable that our state can get by with kidnapping, rape, and unlawful deaths. Maybe we should be getting signatures for allowing to sue the state for these atrocities that are done to the people, and children of out great state. Don’t you think so Kyle?

  70. 90 schilling

    A little more for you to chew on, Kyle. Note how the AG becomes involved when there is likelihood of conflict of interest as noted below in the RC Journal. Unlike the precautions taken with Kim Dorsett.

    @journal; Authorities charged Brett Jarman, 48, with reckless driving, failing to report an accident, hit and run and failure to notify authorities after a crash in Edgemont last May. Timothy Rensch, a Rapid City attorney, represented Jarman Monday in circuit court in Rapid City.

    In exchange for his guilty plea, Laura Shattuck of the South Dakota Attorney General’s Office dismissed the other charges. $$$$$$The Attorney General’s office prosecuted the case because of possible conflicts of interest in Fall River County, Shattuck said.$$$$$$

  71. lorahubbel

    Kyle..I didn’t say you were incorrect … I “said” you were vague…just like you complained that Shirley was vague. If you read it for content I stated you were verbose about it also. Nice done thought, defending yourself against something I never accused you of. Just wondering, how can one be “correct” (or incorrect, for that matter) about being “vague”.

  72. Ms. Hubbel, I just want you to know that I think you are pretty swell.

  73. lorahubbel

    (oops…should have said, “nicely done, though..”

  74. Kyle Krause

    Lora, you never used the word “vague.” Below is a direct quote from your post.

    “and yet I just saw mumbo jumbo in HIS numbers. Nothing researched or accurate in his tome. I guess that leaves the reader to decide which fabricator they want to believe”

    Saying there was “nothing…accurate” in what I wrote is the equivalent of saying that what I wrote was incorrect. You also flat out called me a “fabricator.”

    I feel dumber for even responding to your trolling, and will not be doing so in the future.

  75. Kyle, I realize I never said “vague”, that was WHY it was in quotes. Let me help you out here as you seem to have a problem understanding the written word. You want me to believe you are accurate and not fabricating when you write in this blog. You defend yourself by challenging me to prove any “inaccuracies” of yours. That is like Plato defending his “fabricated” writings by saying I cannot call them inaccurate. Of course your writings here cannot be deemed accurate nor inaccurate….as they are fabricated as much as any fiction writer spins a story. You have no absolutes numbers…..so how can anyone call them accurate or inaccurate? I did not call your numbers fabricated (you never mentioned any)… I called your musings fabricated.
    ,