Dana Hana
DOJ backs plaintiffs in ICWA case
Attorney for OST and Rosebud asks for summary judgment
By Brandon Ecoffey
Native Sun News Managing Editor RAPID CITY—The Department of Justice filed a brief last week supporting the legal positions of several South Dakota tribes and parents in their lawsuit against the state of South Dakota for its handlings of a specific part of the Indian Child Welfare Act. Oglala Sioux Tribe v. Vam Hunnik alleges that the state of South Dakota is failing to protect the rights of due process of Native American parents by not allowing them a fair hearing under the law. “From the very start of an emergency removal, Section 1922 requires state courts, agencies, and officials to actively investigate and evaluate whether the emergency situation has ended. Given the statutory requirements for oversight and “immediate” action, this ongoing obligation cannot be deferred for weeks or months until the next scheduled hearing occurs,” the DOJ said in their friend of the court filing that was accepted by Judge Jeffrey Viken. When the state of South Dakota seizes an Indian child in South Dakota during an abuse and neglect case there are four primary stages that take place. The initial stage takes place when social services, the police, or some other agent of the government removes a child from the home under the suspicion of neglect. After the removal the next step of the process is a hearing must take place to determine whether the child is in immediate danger and needs to remain in the custody of the state. The third stage involves a trial to determine if neglect has actually taken place, and the final stage involves the placement of a child in a foster home for an undetermined amount of time. The lawsuit challenges the second step. In a recent filing asking for summary judgment by the plaintiffs, multiple examples were presented to the court showing that at times judges across the state of South Dakota had denied the parents of seized children to view or hear evidence against them or to challenge the charges during the initial 48 hour hearing. According to the ICWA, the DOJ and the plaintiffs federal law requires that the court give this opportunity to the parents prior to placing them in temporary custody of the state. “The interest that parents have in the custody of their children is not to be lightly interfered with, even following an emergency situation. While an emergency proceeding, such as the 48- hour hearing, may not permanently deprive parents of their custody rights, even a temporary deprivation of physical custody requires a prompt and meaningful hearing,” said the DOJ in its brief. The State of South Dakota has been largely uncooperative in the suit and initially state judges across the state refused to turn over court transcripts of the hearings despite a court order. The filing by the DOJ in favor of Native American plaintiffs is a rare occurrence. (Contact Brandon Ecoffey at staffwriter2@nsweekly.com) Copyright permission Native Sun News
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