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.