South Dakota Indian families and Tribes have just won a major legal victory, under the Indian Child Welfare Act (ICWA) that will resonate throughout the state and nationwide, as well. The decision issued by U.S. District Court Chief Judge Jeffrey L. Viken for the District of South Dakota on Mar. 30, ordered the state to comply with the ICWA, which mandates that Indian children be placed with tribal relatives or other tribes before non-Indian placement is considered.
South Dakota’s Department of Social Services was not only placing Native children in white foster homes first, but was also denying Indian parents and guardians any due process rights in the hearing process.
Viken ruled in favor of all the Indian plaintiffs’ claims and in his written opinion found that the state’s Seventh Judicial Circuit Court’s Presiding Judge Jeff Davis and other defendants “failed to protect Indian parents’ fundamental rights to a fair hearing.” Further, Viken found that state officials violated the ICWA of 1978.
Indian children were being forcibly, routinely, and illegally taken by state DSS workers from their homes; there was lack of adequate notice given to Native parents of hearings at which the children were placed in state custody; parents were not allowed to examine evidence or cross-examine witnesses and many hearings lasted only 60 seconds and most lasted an average of less than five minutes. In all of the cases heard by Judge Davis, one of several judges who heard the Indian child cases, Judge Viken found that Davis ruled against Indian families 100 percent of the time.
The background of the lawsuit is that for years DSS has removed over 740 Indian children from their homes annually and in overwhelming numbers sent them to white foster homes. There have also been instances of horrific sexual abuse, the most infamous being the Mette case which this writer has extensively reported.
This landmark victory in federal court resulted from a class action lawsuit which alleged that the state of South Dakota routinely violated the constitutional rights of Native parents and provisions of the ICWA. The case focused on the first 48 hours after an American Indian child is taken from home by DSS.
The lawsuit was filed in 2013 by private attorney Dana Hanna and Steven Pevar from the American Civil Liberties Union (ACLU) on behalf of the Oglala Sioux and Rosebud Sioux Tribes and parents Rochelle Walking Eagle, Madonna Pappan and Lisa Young representing all Indian parents in Pennington County, South Dakota. This was a federal civil rights lawsuit filed against Presiding Judge Jeff Davis, Pennington County Prosecutor Marl Vargo, state Department of Social Services Director Lynne Valenti and Pennington County Department of Social Services employee Luann Van Hunnik.
The lawsuit zeroed in on the very first court appearance and what happens in the “48 hour temporary custody hearing.”
Attorney Hanna called the custody hearings “shams.” Hanna added that the ICWA was passed in 1978 by Congress because of “Institutionalized anti-Indian racism” in state courts. Hanna further characterized the South Dakota court system in these cases as “fundamentally racist.” …Read More.