Albert Bender: A landmark victory for Indian Child Welfare Act

South Dakota Indian families and Tribes have just won a major legal victory, under the Indian Child Welfare Act (ICWA) that will resonate throughout the state and nationwide, as well. The decision issued by U.S. District Court Chief Judge Jeffrey L. Viken for the District of South Dakota on Mar. 30, ordered the state to comply with the ICWA, which mandates that Indian children be placed with tribal relatives or other tribes before non-Indian placement is considered.

South Dakota's Department of Social Services was not only placing Native children in white foster homes first, but was also denying Indian parents and guardians any due process rights in the hearing process.

Viken ruled in favor of all the Indian plaintiffs' claims and in his written opinion found that the state's Seventh Judicial Circuit Court's Presiding Judge Jeff Davis and other defendants "failed to protect Indian parents' fundamental rights to a fair hearing." Further, Viken found that state officials violated the ICWA of 1978.

Indian children were being forcibly, routinely, and illegally taken by state DSS workers from their homes; there was lack of adequate notice given to Native parents of hearings at which the children were placed in state custody; parents were not allowed to examine evidence or cross-examine witnesses and many hearings lasted only 60 seconds and most lasted an average of less than five minutes. In all of the cases heard by Judge Davis, one of several judges who heard the Indian child cases, Judge Viken found that Davis ruled against Indian families 100 percent of the time.