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Federal judge: State custody proceedings violated Native American rights
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Federal judge: State custody proceedings violated Native American rights

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A federal court order will dramatically change how South Dakota officials handle Native American child-custody cases in every courtroom in the state, according to Rapid City attorney Dana Hanna.

In a decision filed late Monday, Chief United States District Judge Jeffrey Viken wrote: "Indian parents deserve better."

"It's amazing that (state officials have) been able to get away with this for as long as they did," Hanna said. "The judge's decision is amazing."

In his opinion, Viken said Judge Jeff Davis, presiding judge in the 7th Judicial Circuit, never advised any Native American parents they had a right to contest the state's petition for temporary custody; never advised Native American parents that they had a right to call witnesses; never required the state to present sworn testimony from a live witness; and never advised the parents of their right to testify at the first hearing after a child had been removed from a Native American home.

Such hearings are referred to as 48-hour hearings.

Kevin Washburn, assistant secretary for the Indian Affairs for the Department of Interior, called the judge's decision "good news." Washburn was in Rapid City Tuesday addressing a conference on domestic violence.

"This is a tremendous decision that will change the way things work in child welfare in South Dakota," Washburn said.

Hanna and the American Civil Liberties Union, representing the Oglala Sioux Tribe and the Rosebud Sioux Tribe, filed the federal lawsuit in 2013 on behalf of Native American families that lost custody of their children at the hands of the state. The plaintiffs claimed procedures used by the Department of Social Services and 7th Circuit Court judges, under the leadership of Davis, violated the Indian Child Welfare Act (ICWA) in a number of ways. 

"This is (now) the law, and it changes the way DSS is going to be able to handle these cases in every courtroom in the state of South Dakota," Hanna said Tuesday. "It's a huge victory for the tribes."

Parents and guardians of Native American children have long complained that their rights were being violated, and ICWA rules were being ignored in brief hearings — the 48-hour hearings — convened after children were removed from a home. Named as defendants in the case are Davis, Pennington County State's Attorney Mark Vargo, State Director of the Department of Social Services Lynne Valenti and Pennington County DSS employee Luann Van Hunnik.

The tribes and parents complained that children were removed from their homes after hearings that lasted as little as 60 seconds, according to the lawsuit.

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"As Judge Viken pointed out in his opinion, the state judiciary basically gave DSS unfettered discretion to take and keep children," Hanna said. "That's not the case anymore."

Last summer, the plaintiffs asked Viken to find in their favor on seven of their claims. Viken's ruling concurs with their request, leaving only one question for him to consider in the future: if DSS properly trained its staff in the application of ICWA, Hanna said. 

"The court finds that Judge Davis, State's Attorney Vargo, Secretary Valenti and Ms. Van Hunnik developed and implemented policies and procedures for the removal of Indian children from their parents' custody in violation of the mandates of the Indian Child Welfare Act and in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution," Viken wrote.

Viken has ordered the state to:

  • Provide parents with adequate notice prior to emergency removal hearings;
  • Allow parents to testify at those hearings and present evidence;
  • Appoint attorneys to assist parents in this removal hearings;
  • Allow parents to cross-examine the state's witnesses in the hearings;
  • Require state courts to base their decisions on evidence presented during the hearings.

"Up until now, there has been no standards. It's been totally subjective," Hanna said. The state has ignored the legal standard of ICWA that specifies that emergency custody and placement must end as soon as there is not an imminent threat of physical harm to the children. "That," Hanna said, "has been ignored."

Chase Iron Eyes, an attorney for the Lakota People's Law Project said in a Tuesday press release that while the case focused on Pennington County, it would be a mistake to believe the problem is confined to a particular area of the state.

"The policies and procedures in this case are representative of the policies and procedures, and more importantly, the attitude that is manifested in all of the counties in South Dakota," Iron Eyes said in the news release.

Hanna said this is a victory that will be shared by everyone in the state because it will bring about fundamental changes in all abuse and neglect cases.

"In Pennington County, 60 percent of abuse cases involve Indian families, but the same lack of basic fairness characterizes all those cases, regardless of the ethnicity of the parents," Hanna said.

All of the Native American plaintiffs recognize that there are times when children need to be protected, Hanna said. There are, however, a significant number of cases that involve "government overreaching," he said.

It is too early to claim a complete victory, Hanna said. This case is far from over. Once the final piece of the case, DSS training, is resolved, he expects the state to launch an appeal.

Contact Andrea J. Cook at 394-8423 or andrea.cook@rapidcityjournal.com

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