A federal judge has decided that Native American families deserve a chance to prove that South Dakota officials routinely ignore their rights and their children's rights during custody hearings.
U.S. District Judge Jeffrey Viken of Rapid City refused Tuesday to dismiss a lawsuit by the Oglala Sioux Tribe, the Rosebud Sioux Tribe and three Native American parents. The lawsuit claims that Native American children are routinely removed from their homes after only a brief hearing.
"Basically, what the court is saying in this order is that if we prove the facts we alleged in the complaint, it means the state defendants have violated the constitutional and statutory rights of our clients and we will be entitled to judicial relief," Rapid City attorney Dana Hanna said Wednesday.
The lawsuit was filed in March by the American Civil Liberties Union, ACLU South Dakota and Hanna.
"We are thrilled that the court has recognized the importance of these issues to Indian parents and Indian tribes," said Heather Smith, executive director of the American Civil Liberties Union of South Dakota.
The plaintiffs claim some child custody hearings are barely 60 seconds long. Parents are not allowed to see the petition used to take their children, nor are they given a chance to introduce evidence that they can take care of their children, all of which they say violates the Indian Child Welfare Act (ICWA) and their Fourteenth Amendment right to due process.
"We shouldn't forget that it's all about due process," Hanna said. "The state's going to give you a fair hearing before they take your kids."
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The lawsuit names South Dakota Social Services Secretary Kim Malsam-Rysdon and employee LuAnn Van Hunnik, Pennington County State's Attorney Mark A. Vargo and 7th Circuit Judge Jeff Davis as defendants.
"It is an early stage in the proceedings and there has been no decision on the merits. We will prepare to file our answer and work with the parties to exchange discovery information," South Dakota Attorney General Marty Jackely said Wednesday.
Viken also granted the lawsuit class certification, which means the three parents can continue to represent all other members of federally recognized Indian tribes living in Pennington County who are parents or custodians of Native American children.
The judge's ruling also validates the tribes' role in the lawsuit on behalf of tribal parents and their children.
"That's huge in terms of Indian law," Hanna said. "I'm not aware of any other example of a tribe or really any plaintiff taking on the state actors in a class action to vindicate Indian Child Welfare Act rights."
Federal law requires that Native America children removed from homes be placed with relatives or with other Native American families except in unusual circumstances. Tribal officials contend South Dakota removes too many Native American children from their homes and then puts them in foster care with non-Native America families.
Congress passed the Indian Child Welfare Act in 1978 because of the once high number of Native American children being removed from their homes by public and private agencies.