Victory for Tribes as Judge Reaffirms South Dakota Decision
2/22/16
Citing a “fundamental lack of competence,” a federal
judge on Friday, February 19 denied South Dakota’s
motion to reconsider an earlier decision, which found
the state violated the Indian Child Welfare Act (ICWA)
and denied Indian parents their Constitutional rights.
In March 2015, Judge Jeffrey Viken issued a partial
summary judgment in favor of the plaintiffs in
Oglala Sioux Tribe v. Luann Van Hunnik regarding
emergency removal hearings, also known as “48-hour
hearings,” in Pennington County, South Dakota.
The state subsequently filed a motion to reconsider the
decision that found officials within the Department of
Social Services, the state’s attorney Mark Vargo and
Judge Jeff Davis had ignored not only federal law, but
also its own statutory ICWA code, as well as numerous
standard civil procedures in perfunctory hearings that
has resulted in the removal of thousands of Indian
children from their homes and placing them in non-Indian
foster homes.
In their petition, the state defendants challenged
Viken’s findings and legal conclusions, in part, under
the claim that he had made his ruling due to “omissions”
in the transcript regarding whether or not Indian
parents had received pertinent documents.
“The DSS Defendants miss the point of the court’s
findings,” wrote Viken in his 22-page decision. “The
issue is not what the Indian parents knew about the
reasons their children were initially removed from the
parents’ custody, but rather the factual basis
supporting continued separation of the family.”
The March 2015 findings, he wrote, were not only
justified based on the substantial evidence against the
state, but also “Defendants’ challenges to the court’s
legal conclusions are little more than a repeat of
losing arguments made in earlier filings. Nothing raised
by defendants points out ‘a manifest error of law’
requiring reconsideration.”
South Dakota state officials could not be reached for
comment on the decision.
The class action case is now in its third year, having
been filed in March 2013 by three Indian mothers and the
Oglala and Rosebud Sioux Tribes in South Dakota to
address ongoing violations in that state. According to
tribal officials and advocacy groups, approximately 750
Indian children a year are swept into foster care,
sometimes for months on end, with virtually no
compliance with state and federal law.
For decades, Indian parents in Pennington County have
been refused court-appointed counsel as stipulated in
ICWA, the right to speak in their own defense,
cross-examine witnesses or present evidence at the
emergency hearings, many of which lasted less than 90
seconds, their suit alleged. They were also denied the
right to review the secret petitions filed against them,
documents which are routinely available only to the
judge.
The Native plaintiffs are represented by Stephen Pevar,
senior staff counsel for the American Civil Liberties
Union and Rapid City attorney Dana Hanna. The suit,
filed in U.S. District Court for the District of South
Dakota in Rapid City, seeks declaratory and injunctive
relief for any future cases, as well as for Indian
parents “similarly situated” across the country.
The historic case has drawn national attention and has
become a bellwether in upholding the 38-year-old
statute, which was enacted in the late 1970s to protect
the tribes from further dissolution by state agencies
and court systems who routinely placed Indian children
into non-Indian foster and adoptive homes from which
they never returned.
The case now moves to what’s known as the “remedy phase”
in which both parties will present their respective
positions regarding how ICWA cases should be adjudicated
in the future. To this day, tribal officials say that
Pennington County has not implemented any of the changes
outlined in the litigation, and that Indian children are
still being targeted by the state for foster care
placement.
Once the court enters its orders requiring compliance
with the law, however, officials found to be violating
the law could face penalties including substantial fines
and even jail time.
“Judge Viken ruled in March 2015 that for years now
state officials have been violating the federal rights
of Indian children and their families and tribes in
state custody hearings,” Pevar told ICTMN. “These
officials then asked Judge Viken to reconsider his
rulings. Judge Viken emphatically reaffirmed his March
decision and called some of the officials' arguments
frivolous. This is a wonderful decision for Indian
children, their families, and their tribes. We are
grateful to the Judge for his hard work and sensitivity
to these issues.”
Please visit Indian Country Today Media Network for
ongoing national coverage of the Indian Child Welfare
Act.
Read more at http://indiancountrytodaymedianetwork.com/2016/02/22/icwa-victory-tribes-judge-reaffirms-south-dakota-decision-163496 |