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‘A Great Triumph for Our Indian Children’: 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.”
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.”
http://indiancountrytodaymedianetwork.com/2015/04/01/great-triumph-our-indian-children-tribes-win-landmark-child-welfare-case-159841
Federal Judge Halts South Dakota’s Abuse Of Native Families
Native families in South Dakota have been losing their children to an insane legal system at a rate of 750 a year.
When children are removed from homes, hearings are held within 48 hours and last from 60 seconds to 5 minutes. Parents are not present and are not allowed to present evidence. The petitions against them are kept secret. The children are sent into the foster care system for weeks or months and are usually placed with non-Native families, which is contrary to federal law. Return of the children is at the sole discretion of the Department of Social Services, without further involvement of the court.
With the help of the American Civil Liberties Union, three Native mothers plus the Oglala and Rosebud Sioux Tribes filed a class action lawsuit in March, 2013. On Monday, U.S. District Judge Jeffrey Viken put an end to the practice with a scathing decision that took aim at the defendants: State Judge Jeff Davis, Pennington County Prosecutor Mark Vargo, State Director of the Department of Social Services (DSS) Lynne Valenti, and Pennington County DSS employee Luann Van Hunnik. Viken wrote in his 45-page ruling:
Judge Davis and the other defendants failed to protect Indian parents’ fundamental rights to a fair hearing by not allowing them to present evidence to contradict the state’s removal documents. The defendants failed by not allowing the parents to confront and cross-examine (Department of Social Services) witnesses. The defendants failed by using documents as a basis for the court’s decisions which were not provided to the parents and which were not received in evidence at the 48-hour hearings.
When children are removed from homes, hearings are held within 48 hours and last from 60 seconds to 5 minutes. Parents are not present and are not allowed to present evidence. The petitions against them are kept secret. The children are sent into the foster care system for weeks or months and are usually placed with non-Native families, which is contrary to federal law. Return of the children is at the sole discretion of the Department of Social Services, without further involvement of the court.
With the help of the American Civil Liberties Union, three Native mothers plus the Oglala and Rosebud Sioux Tribes filed a class action lawsuit in March, 2013. On Monday, U.S. District Judge Jeffrey Viken put an end to the practice with a scathing decision that took aim at the defendants: State Judge Jeff Davis, Pennington County Prosecutor Mark Vargo, State Director of the Department of Social Services (DSS) Lynne Valenti, and Pennington County DSS employee Luann Van Hunnik. Viken wrote in his 45-page ruling:
Judge Davis and the other defendants failed to protect Indian parents’ fundamental rights to a fair hearing by not allowing them to present evidence to contradict the state’s removal documents. The defendants failed by not allowing the parents to confront and cross-examine (Department of Social Services) witnesses. The defendants failed by using documents as a basis for the court’s decisions which were not provided to the parents and which were not received in evidence at the 48-hour hearings.
http://www.addictinginfo.org/2015/04/01/federal-judge-halts-south-dakotas-abuse-of-native-families/
i am appalled by the egregiousness of these violations and i am glad that they will now be addressed. we can't forget our native brothers and sisters when we talk about social justice and equality.
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