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How South Dakota is Punishing Native Child Welfare Advocates and Protecting Child Abusers — The Mette Case

May 21, 2012

On May 1, The Aberdeen News of South Dakota reported that former Assistant State Attorney Brandon Taliaferro and Court Appointed Child Advocate Shirley Schwab were being charged with witness tampering and subornation of perjury by South Dakota Attorney General Martin Jackley. Attorney General Jackley filed these charges in relation to the criminal prosecution of Aberdeen-based foster parents Richard and Gwendolyn Mette. Mr. Taliaferro is a well-known South Dakota Indian child advocate and, as a former Assistant State Attorney, he was in charge of prosecuting child abuse cases in Brown County. Ms. Schwab is the widely respected Court Appointed Child Advocate for Brown County.

In 2011, Mr. Taliaferro charged Richard Mette with a total of twenty-three felony counts of aggravated rape of a child and aggravated incest against two of four young Native American sisters who had been placed in his and his wife’s custody by the South Dakota Department of Social Services (DSS) despite the protests of the children’s Lakota family. Richard’s wife, Gwendolyn Mette had been charged with eleven felony counts of aiding and abetting Richard Mette’s crimes as well as neglect of the children.

Charges were lodged against Mr. Taliaferro and Ms. Schwab by Attorney General Jackley on November 7, 2011, only days after an October 25 – 27 National Public Radio broadcast. The Peabody Award-winning NPR report by Laura Sullivan revealed that the South Dakota DSS, in collusion with the present Governor of South Dakota Dennis Daugaard, has been systematically violating the 1978 Indian Child Welfare Act (ICWA) over the past decade. The NPR report implied that South Dakota State Officials violated ICWA in order to draw over a billion dollars in federal moneys into the state.

Attorney General Jackley lodged charges against Mr. Taliaferro and Ms. Schwab shortly after the broadcast of this NPR report. The NPR expose revealed that Governor Daugaard had served from 2002 – 2009 as the executive director of the largest private for-profit group home for Indian foster children in South Dakota, the South Dakota Children’s Home Services, Inc. Governor Daugaard was the Lieutenant Governor of South Dakota while he directed this corporation. During Governor Daugaard’s tenure as lieutenant governor, his South Dakota Children’s Home Services, Inc. received more than $50 million of state money, mostly in the form of no-bid contracts. In addition, records show that Governor Daugaard was paid $115,000 annually by this organization.

Immediately after lodging the charges against Mr. Taliaferro and Ms. Schwab, Attorney General Jackley ordered late night and early morning raids of both Mr. Taliaffero’s and Ms. Schwab’s offices and private homes. Jackley’s agents seized private computers, private cell phones, and office and home documents in an attempt to find evidence that Mr. Taliaferro and Ms. Schwab had made “unauthorized disclosures” of confidential DSS information during their work on the Mette case. Attorney General Jackley was not clear as to whom this confidential information might have been disclosed to.

Mr. Taliaferro and Ms. Schwab vehemently denied the accusations asserted by Attorney General Jackley, immediately plead not-guilty to the charges, and retained both criminal defense counsel and private civil attorneys to prepare a federal civil rights lawsuit against Attorney General Jackley, Governor Daugaard, Department of Criminal Investigation (DCI) agents, and DSS officials who brought these false charges against them. Mr. Taliaferro and Ms. Schwab assert that Attorney General Jackley, Governor Daugaard, and DSS officials are engaged in a federal, criminal conspiracy to systematically discriminate against Lakota children, mothers, fathers, grandparents, and relatives, and to unlawfully retaliate against any non-Indian people who attempt to step up to defend the South Dakota Native American population against this illegal conspiracy.

Within days of the South Dakota ACLU Director Robert Doody’s public announcement that he was ordering a statewide ACLU investigation of these charges against DSS officials, Mr. Doody’s Native American children were taken away from him and his wife. As of the May 1 indictments of Mr. Taliaferro and Ms. Schwab, Mr. Doody’s children have still not been returned.

A public hearing has been scheduled for June 13 for Mr. Taliaferro and Ms. Schwab.

According to Lakota People’s Law Project (LPLP) investigators, the charges against Mr. Taliaferro and Ms. Schwab were filed because of their repeated attempts to protect and enforce the rights of four young Native American girls; ages seven, nine, fourteen, and sixteen; who were involuntarily removed from their Lakota mother by DSS officials and placed with Richard and Gwendolyn Mette. Mr. Taliaferro conducted a professional investigation and concluded that Richard Mette had repeatedly sexually molested the two older girls, while Gwendolyn Mette threatened to punish the children if they told authorities. Repeated reports of Richard and Gwendolyn Mette’s conduct were conveyed to DSS officials. However, the DSS steadfastly refused to undertake any investigation of the Mettes.

The four girls had originally been placed with the Mettes, a white couple, over the repeated objections of the girls’ adult sister, who had asked that the girls be placed with her, as is required by the Indian Child Welfare Act. In placing the Indian girls with the Mettes, the South Dakota DSS violated section 1915 of the Indian Child Welfare Act, which mandates that all active efforts necessary be undertaken by state DSS officials to place Indian children removed from their parents’ homes with their closest Indian relatives.

Mr. Taliaferro and Ms. Schwab assert that Attorney General Jackley and his Department of Criminal Investigation operatives are actively coordinating with DSS officials to use fabricated allegations of “unauthorized disclosure of confidential abuse and neglect information” and “witness tampering” to try to discredit the clear and convincing evidence that incriminates both Richard and Gwendolyn Mette. These actions immediately followed the embarrassing National Public Radio exposé of the decade-long pattern of unlawful conduct on the part of South Dakota State officials.

A special prosecutor, assigned by Attorney General Jackley to prosecute the charges against Mr. Taliaferro and Ms. Schwab, was later appointed to take over the prosecution of Richard and Gwendolyn Mette’s case. Investigators at the Lakota People’s Law Project (LPLP) have learned that South Dakota state prosecutors secretly offered to dismiss all of the serious felony charges against Gwendolyn Mette if she would go along with just one misdemeanor charge against Richard Mette, charging him with just a single spanking of one of the Indian girls, thereby allowing state officials to dismiss all of the Indian children’s serious charges of rape and incest. This would have cleared the way for state officials to more effectively prosecute Mr. Taliaferro and Ms. Schwab for allegedly encouraging the Indian children to make up charges against the Mettes, ostensibly to publicly embarrass the DSS.

However, due to the outrage of the girls’ Lakota family in response to this initial secret plea bargain, the charges against Mr. Mette have now changed to a single count of child rape. On March 27, 2012, Richard Mette plead guilty to this single count of rape of a child under ten years old and will be given a fifteen-year sentence, with parole after only five years. This plea bargain comes as a surprise considering Richard and Gwendolyn Mette originally faced a total of thirty-four felony charges, most of which were aggravated rape of a child and aggravated incest, with each charge carrying a potential life sentence.

Our LPLP investigation has revealed a common pattern: South Dakota state prosecutions tend to dramatically downplay criminal abuse cases brought against white foster care parents when Indian children are the victims. On the other hand, our investigation shows that Lakota parents are systematically treated more severely by the DSS than white parents for virtually identical conduct. Indeed, over the last ten years, Indian children in South Dakota have been systematically removed from their parents custody under circumstances in which white children would never have been taken. This is exactly the conduct which former Assistant State Attorney Taliaferro accused DSS officials, resulting in the loss of his employment with the Brown County State Attorney in September of 2011. Mr. Taliaferro was fired after a face-to-face meeting with DSS official Virgina Weisler and DSS Chief Counsel Daniel Todd. In that meeting Weisler and Todd accused Mr. Taliaferro of “not being a team player” and of “being disloyal to the DSS.”

The NPR exposé revealed the South Dakota State officials’ potential motive for taking such dramatically different action toward Indian families as compared to white families: Native American children are, by state law, automatically classified as “Special Needs Children,” which triggers the dispersal of up to $79,000 in federal moneys to South Dakota for every child so long as that child is not returned to their parent(s) or placed with one of their family members.

According to published reports in The Aberdeen News on December 19, 2011, Mr. Taliaferro asserts that he is being prosecuted because he “was trying to protect children,” and was “trying to hold the DSS accountable.” Mr. Taliaferro and his South Dakota attorneys, Thomas Wilka and Steven Sandven, officially charge, in court documents filed in Taliaferro’s appeal of his firing, that Mr. Taliaferro was unjustly fired as a direct consequence to his attempt to stand up for the rights of Lakota children, Lakota parents, and Lakota relatives—rights that Mr. Taliaferro and his attorneys assert are guaranteed to the Lakota People of South Dakota by the federal Indian Child Welfare Act.

In earlier investigations, LPLP investigators found that the Brown County State Attorney Kim Dorsett, who fired Mr. Taliaferro, had been privately representing the DSS under a private contract for $75,000 per year. At the same time, she was publicly serving as the State Attorney for Brown County for a fraction of that amount.

On December 19, 2011, The Aberdeen News finally reported that Ms. Dorsett was being paid up to $75,000 per year by the South Dakota DSS “for her private legal services.” Ms. Dorsett’s private contract with the DSS contained an express provision requiring that Ms. Dorsett “not engage in any activity contrary to the interests of the State DSS.” This contract appears to directly conflict with Ms. Dorsett’s obligation as the State Attorney for Brown County in the Mette case. As the state official responsible for enforcing the law, Ms. Dorsett is required to remain objective when presented with charges such as those brought to her by Mr. Taliaferro against the DSS, however, by being on the payroll of the DSS, how could Ms. Dorsett possibly remain objective?

On December 19, 2011, The Aberdeen News reported that Mr. Taliaferro “said that it is financially beneficial for the department to remove American Indian children from their homes and place them in [white] foster homes.” Over the years in which he served as the Assistant State Attorney in Brown County in charge of prosecuting abuse and neglect cases, Mr. Taliaferro said that he and the DSS were “often at odds.” In official papers filed with the State Department of Labor in his appeal of his firing, Mr. Taliaferro charged that “following the orders of State Attorney Dorsett would have required [me] to violate the law and ethical rules that govern attorney conduct.” Referring to the unlawful South Dakota state policy of systematically violating the Indian Child Welfare Act, Mr. Taliaferro asserted that he refused to participate in “a cover-up of misconduct” by the DSS.

On December 30, 2011, retired State Supreme Court Judge Robert A. Miller was appointed to oversee the trial of Mr. Taliaferro and Ms. Schwab.

The Lakota People’s Law Project (www.lakotalaw.org) has been working in South Dakota for ten years in the hopes of returning over 5,000 Lakota children to their Native families and tribes. LPLP currently is working to develop Native planned and operated Child and Family Service Programs in South Dakota. Its major goal is to improve the enforcement of the Indian Child Welfare Act and, ultimately, make the act more accountable and transparent through its amendment.

LPLP has documented many cases of the unjust seizure of Lakota children and their unlawful placement in non-Native foster settings.

According to LPLP lead attorney Daniel P. Sheehan, “The current system is a total failure. Our research shows that the state of South Dakota is the worst violator of the Indian Child Welfare Act in the entire nation.” According to the Child Welfare League of America, between 61 and 63 percent of the children in state foster care in South Dakota are Native Americans, even though Native children make up less than 13 percent of the state’s youth. The data directly contradicts the common misconception that Lakota children are better off in non-Native foster care. According to Judge Thorne of the Utah State Supreme Court, "Over 60 percent of children in foster care who age out of the system are homeless, in prison, or dead by age twenty."

Since 2005, the Lakota People’s Law Project (www.lakotalaw.org) has partnered with the Native American tribes of South Dakota. Through law, public policy, research, and education, LPLP is challenging the systemic injustices of the last 150 years and working for the renewal of Lakota culture and society. LPLP is a project sponsored by the nonprofit Romero Institute of Santa Cruz, California. The Romero Institute, named after slain human rights advocate, Archbishop Oscar Romero of El Salvador, seeks to identify and dismantle the structural sources of injustice and threats to the survival of our human family.

This Special Report has been prepared by the Lakota People’s Law Project, part of the nonprofit Romero Institute. All rights reserved.