March 31st, 2015: Landmark Legal victory confirms South Dakota systematically violates ICWA
Federal Judge orders South Dakota to drastically alter their policies and procedures in reference to Indian child removal cases
“A cornerstone of Lakota culture can be summed up in the words of family and kinship. Family is the backbone, the foundation of our culture. We are given substance, nurtured and sustained by family.”
Joseph M. Marshal III, Sicangu Lakota (Rosebud Sioux Tribe)
Federal Judge Jeffrey Viken ruled State Judge Jeff Davis and a litany of other state officials involved in Indian Child Removal cases violated the following provisions of the Indian Child Welfare Act:
1. Not allowing parents to see the ICWA petition filed against them
2. Not allowing the parents to see the affidavit supporting the petition
3. Not allowing the parents to cross-examine the person who signed the affidavit
4. Not permitting the parents to present evidence
5. Placing Indian children in foster care for a minimum of 60 days without receiving any testimony from qualified experts related to “active efforts” being made to prevent the break- up of the family
6. Failing to take expert testimony that continued custody of the child by the Indian parent or custodian is likely to result in serious emotional or physical damage to the child
The state also found state officials violated five provisions of the 14th amendment of the U.S. Constitution:
1. Failure to provide parents with adequate notice of the claims against them, the issues to be decided and the state’s burden of proof
2. Denial of the parents’ right to present evidence in their defense
3. Denial of the parents’s right to cross examine witnesses
4. Failure to provide indigent parents the opportunity to be appointed counsel
5. The failure to base child removal orders on evidence presented at hearings and then subsequent submissions of written findings that are often materially different from evidence presented at hearings
Lakota People’s Law Project
Chase Iron Eyes
Lakota People’s Law Project
The Lakota People’s Law Project is pleased to announce that justice has finally come to South Dakota.
In a major victory for Native tribes in South Dakota, Federal Judge Jeffrey L. Viken found the state of South Dakota had been systematically and comprehensively violating the rights of Indian families with regard to the state’s removing Indian children and placing them in white foster care settings and ordered them to stop.
“It’s hard to overstate the importance of this case and this ruling,” said Lakota People’s Law Project Attorney Chase Iron Eyes. “Our families have been under siege for the past couple decades and it is gratifying that the justice system finally recognize what the Lakota People’s Law Project has been saying for a decade — the state of South Dakota has been flagrantly defying the Indian Child Welfare Act and fighting off its provisions at every single step.”
The ruling stems from a lawsuit brought by the American Civil Liberties Union on behalf of the Oglala and Rosebud Sioux Tribes that charged South Dakota officials with systematically removing Indian children from their homes illegally.
Despite the existence of the Indian Child Welfare Act of 1978, which mandates state institutions need to undertake active efforts to keep children with their families and tribes, South Dakota has been systematically removing an average of 740 Indian children from their homes every year. Of the 740 children, 87 percent, are placed in non-Native foster care—in direct violation of ICWA.
Judge Viken not only ruled state officials (South Dakota Judge Jeff Davis, States Attorney for Pennington County, South Dakota Mark Vargo, Secretary of the South Dakota Department of Social Services and Child Protective Services Director LuAnn Van Hunnik) violated ICWA, but they also violated the 14th Amendment of the United States Constitution.
“The court finds that Judge Davis (et al.) … developed and implemented policies and procedures for the removal of Indian children from their parent’s 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,” Judge Viken wrote in his 45-page ruling. Viken not only found the defendants violated six different provisions of ICWA and five different provisions of the 14th Amendment of the U.S. Constitution, but he scolded South Dakota officials in his scathing ruling.
“(ICWA) Guidelines were publicly available to … Judge Davis and to the other defendants,” Viken wrote. “A simple examination of these administrative materials should have convinced the defendants that their policies and procedures were not in conformity with ICWA. Indian children, parents and tribes deserve better.”
Brian Brewer, who was Chairman of the Oglala Sioux Tribe when this lawsuit was filed, said the fact that Judge Viken felt compelled to stay his order until the state agrees to change its policies demonstrates how far the state system veered from federal law.
“The judge fully realized that state officials cannot be trusted to keep their word without judicial supervision by the federal court,” Brewer said.
Judge Viken ruled that State Court Judge Davis and the other plaintiffs failed to give parents adequate notice of claims against them, denied parents the right to see evidence against them or to present evidence in their defense. Parents were also denied basic due process rights such as the right to confront adverse witnesses and the right to counsel for indigent parents.
What is perhaps the most egregious example of a corrupt system, Judge Viken found that state Court Judge Davis and other South Dakota officials would remove Indian children from homes without basing such orders on evidence presented in the hearings and then after the hearings were over would submit additional written findings “that bore no resemblance to the facts presented at the hearing.”
LPLP Attorney Chase Iron Eyes said while this case focused on Pennington County (recently renamed to Oglala Lakota 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,” said Chase Iron Eyes. “This Federal court decision, while cause for celebration, is only the first step in the overall progress toward stripping South Dakota of the authority to determine the fate of Indian children.”
The Lakota People’s Law Project in conjunction with the Lakota tribes devised a solution to the ongoing problem of child seizures in South Dakota — obtaining federal grants so the nine Lakota tribes in South Dakota can build their own Child and Family Service programs that include Indian foster care.
“The solution is available,” said Chase Iron Eyes. “Our tribes, mostly with the help of experts A Positive Tomorrow, have filed Title IV-E grant applications on behalf of eight of the nine tribes. It is time for the federal government to recognize the urgency of the problem in South Dakota and act now to approve the grants.”
Rosebud Sioux Tribe and Oglala Sioux Tribe, the plaintiffs in the case, have already received planning grants to begin the implementation of their programs. Standing Rock Sioux Tribe was also awarded a planning grant, but five tribes were denied access to the federal funds during last year’s round of grant awards.
LPLP Executive Director Sara Nelson said that while LPLP has been working on the issue since 2005, credit should go to the courageous tribes who are plaintiffs in the suit and to the ACLU for filing the important case and achieving a crucial victory.
“The Lakota have been fighting for their rights as parents, as families, as members of an ancient, sovereign and proud nation of people,” said Sara Nelson. “Today is one step forward and while there is much work to be done, this victory is a validation for the Indigenous people that have worked so hard to have their rights recognized in an environment that is hostile to their very continued existence.”
The Lakota People’s Law Project has been partnering with tribes and leaders in South Dakota since 2005 from its offices in Rapid City, SD and Santa Cruz, CA. LPLP’s activities have included funding and supporting Native experts to provide technical assistance to the tribes on family and child welfare issues. The project combines public interest law, investigation, research, education, and organizing into a unique model for advocacy and social reform.
The Lakota People's Law Project is sponsored by the non-profit Romero Institute based in Santa Cruz, California. The Institute is named after slain human rights advocate Archbishop Oscar Romero of El Salvador. The Institute seeks to identify and dismantle structural sources of injustice and threats to the survival of our human family.