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Pennington County to stick with current ICWA hearing procedures
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Pennington County to stick with current ICWA hearing procedures


Despite a federal appeals court vacating a previous local ruling ordering Pennington County to change the way it runs its initial hearings for Native American child removal cases, the county isn't planning on reverting back to its old practices. 

"For right now we’re changing nothing. We’re sticking with where we were,” said Mark Vargo, state attorney for Pennington County. "It didn't seem wise to do so with the potential for re-hearing."

Vargo said lawyers for the Oglala and Rosebud Sioux tribes have already entered a motion asking all 11 judges in the 8th Circuit Court of Appeals to re-hear the case, a process known as an "en banc hearing." He said it's too soon to say whether he and the other defendants would continue challenging the plaintiffs or decide to settle if the judges agree to the en banc hearing. 

But in the meantime, he said, it would make no sense to revert to previous procedures only to have to change them again based on potential future court rulings. 

Going forward, "we do what the court tells us to do," Vargo said.

The Oglala and Rosebud Sioux tribes took the lead for three parents in a 2013 class-action lawsuit challenging the practices of South Dakota's 7th Circuit Court, the Pennington County State's Attorney office and the Department of Social Services during temporary custody hearings that take place within 48 hours of removing a child from a home. The parents claim the hearings violate the Indian Child Welfare Act (ICWA) and their due process guaranteed under the 14th Amendment.

The appeals court said that the 2015-2016 decisions of the Rapid City-based federal district court should be overturned because the case is a state's issue that should have never been heard in federal court. Judge Jeffrey Viken had ordered the state to give more rights to parents during the 48-hour hearings.

Among other orders, Viken said courts must base their decisions on evidence presented during the hearings, give parents adequate notice about the hearings, and allow them to testify.

Vargo said his office had already made other changes to the hearings before Viken's orders, and even before the lawsuit was filed. 

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"The bottom line is that a great deal of the changes that were requested had already been made, long before Judge Viken made his ruling. So we did those on our own. We felt that there were some things that we could do to improve our best practices," he said. 

Those changes, Vargo said, included providing parents during the 48-hour hearing with the probable cause affidavit explaining why their child was seized. And when a child is placed outside of their family, hearings challenging those placements are now heard sooner, within 15 days. 

"It was just an attempt to again, make sure we were being responsive and that we were disrupting these children's lives as little as possible, Vargo said.

He said his office doesn't formally track the number of Native American child removal hearings it handles a year, but a 2016 order by Viken said that both parties agreed that the amount has averaged around 100 since 2010. 

Despite voluntarily and legally being required to make changes to the 48-hour hearings, Vargo said he believes the hearings have always followed the law. 

"We have to make sure that we're following both the letter and the spirit of the federal (ICWA) law and we felt that we were doing so, which is why we opposed the lawsuit and having the federal court decide what the process would look like in state court," he said. 

He said Viken's assumption that the courts would have live witnesses at the hearings doesn't make sense. 

"The idea that it has to be live and that you can't use a written document, I think that was again impractical," he said. 

Viken noted in a Dec. 2016 order that four other South Dakota counties do have live testimony at the 48-hour hearings, and parents or their attorneys are allowed to question Child Protection Service staff and other witnesses. 

Pennington County has followed suit since Viken's order, Vargo said. 

— Contact Arielle Zionts at

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