April 2, 2015

Tribes Win Landmark Child Welfare Case


On Monday, March 30 a federal judge issued a landmark decision affirming that officials in South Dakota violated numerous provisions in the Indian Child Welfare Act (ICWA) and denied Indian parents their rights under the Due Process Clause of the Constitution. Referencing widespread and systemic failure to protect the integrity of Indian families, Judge Jeffrey Viken issued a partial summary judgment in favor of the plaintiffs in Oglala Sioux Tribe v. Luann Van Hunnik on seven issues before the court regarding emergency removal hearings, also known as “48-hour hearings,” in Pennington County, South Dakota.


The class action suit was filed by three Indian mothers and two tribes—the Oglala and Rosebud Sioux Tribes—in March 2013 to address what they claimed were ongoing violations in that state where approximately 750 Indian children a year are swept into foster care, sometimes for months on end. The suit charged a lack of proper procedural or judicial oversight and documented how, for years, Indian parents have been denied the right to speak in their own defense, have court-appointed counsel, cross-examine witnesses or present evidence at the hearings, many of which lasted for only a few minutes. Moreover, the plaintiffs provided documentation and testimony that parents were denied their right to review the secret petitions against them, documents which are routinely undisclosed and available only to the judge.

Represented by Stephen Pevar, senior staff counsel for the American Civil Liberties Union and Rapid City attorney Dana Hanna, the plaintiffs filed suit in the U.S. District Court for the District of South Dakota in Rapid City seeking declaratory and injunctive relief for any future cases, as well as for Indian parents “similarly situated” across the country. The precedent-setting case was immediately heralded as a welcome shift in upholding the 37-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.

“Judge Viken’s powerful ruling is important, not just for tribal members in South Dakota but for Native people everywhere. The decision shines a light on [the] apparently rampant abuses of the emergency removal provision under the Indian Child Welfare Act,” said Barbara Atwood, the Mary Anne Richey Professor Emerita of Law and director of the Family and Juvenile Certificate Program at the University of Arizona School of Law. “The ruling vindicates the fundamental right of Indian parents to a fair hearing when state officials remove their children—a right that was being systematically ignored by the defendants, including state court judges.”

Specifically, Judge Viken affirmed the plaintiff’s claim that Seventh Circuit presiding Judge Jeff Davis routinely set the policies and procedures that were followed not only by his judicial colleagues, but also the other defendants in the case, including state’s attorney Mark Vargo, State Director of the Department of Social Services (DSS), Lynne Valenti, and Pennington County DSS employee

Luann Van Hunnik. In his official capacity, Davis was not adjudicating the law, but rulemaking, wrote Judge Viken in his decision.

“[B]y acquiescence in a longstanding practice of Judge Davis ‘which constitutes the standard operating procedure’ of the Seventh Circuit Court,” wrote Viken, “these defendants exposed themselves to liability. Defendants created the appearance of regularity in a highly irregular process.” Therefore, he said, “Judicial and prosecutorial immunity do not extend to plaintiffs’ claim for injunctive and declaratory relief.”

Further, the court ruled that Judge Davis’s decision to leave it up to DSS to decide when to return Indian children to their homes without imposing any duty to do so was an “abdication of judicial authority” that is “contrary to the protections guaranteed Indian parents, children and tribes under ICWA.”

Also significant to the decision, Judge Viken referred to the new “Department of Interior Guidelines for State Courts Indian Child Custody Proceedings” (DOI Guidelines) no less than a dozen times, making it clear that they are “entitled to great weight” in their application in state court proceedings involving the custody of Indian children.

The DOI Guidelines, which were published in the Federal Register on March 12, were the result of an intense period of public hearings and written commentary, which was coordinated and directed by the Bureau of Indian Affairs.

“A simple examination of these administrative materials should have convinced the defendants that their policies and procedures were not in conformity with ICWA… the DOI Guidelines or the Guidelines promulgated by the South Dakota Unified Judicial System,” wrote Viken.

“Indian children and their parents deserve better.”

Immediately, the decision was met with relief and a sense of victory for not only the plaintiffs, but for Indian families “similarly situated” across the country.

“This is a such a great triumph for our Indian children,” Rosebud Sioux President Cyril Scott told ICTMN. “I want to thank everyone involved in this case, including Mr. Dana Hanna, Mr. Pevar, our relatives at Oglala Sioux Tribe, and the parents and children for whom this is a landmark case. I’m so proud, because now the state will be forced to abide by the rules in regards to ICWA. My mother was one of the authors of this legislation back in the 70s, and it was drafted at our kitchen table. So we couldn’t be more thrilled. It’s a great day.”

“All praise and honor should be given to those tribes and to the Lakota parents who have fought for the rights of all Indian people in this historic legal victory,” said Hanna, who has worked alongside Pevar for four years to bring about justice for Indian families of South Dakota.

Both sides have until May 1 to submit “appropriate remedies” to the court, which will address the following issues in a separate injunction and declaratory ruling:

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 these removal proceedings.

Allow parents to cross-examine the state’s witnesses in the hearings.

Require state courts to base their decisions on evidence presented during these hearings.

“Indian children are being removed from their homes without giving parents and tribes any valid chance to respond. These reckless practices have led to enormous suffering by Indian children and their parents, and the unnecessary breakup of Indian families. This important ruling should help keep this from happening in the future,” said Pevar. “We are very grateful that Judge Viken is putting an end to years of violations of basic rights.”

One issue that remains before the court, however, is the complaint by the plaintiffs regarding the length of time in which Indian children are kept in emergency foster care by the Department of Social Services. Many times, say Indian child welfare organizations, tribal children are kept in foster care by DSS workers long after the “emergency” that triggered the removal has been determined to have ceased. Indian parents have long complained that there is no

valid legal or moral reason to retain a child in state custody for months on end once the emergency is over. Pevar said he is hopeful that the state will be willing to settle that particular portion of the suit now that the other issues have been adjudicated.

As it stands, Oglala v. Van Hunnik marks a milestone in American History, according to legal experts.

“The plaintiffs and their lawyers were courageous to challenge the very judges who have authority over their families,” said Atwood. “The ruling will surely benefit tribes and tribal members for years to come.”


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