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Native Sun News: Tribes seek final judgment in ICWA dispute

The following story was written and reported by Brandon Ecoffey, Native Sun News Managing Editor. All content © Native Sun News.

Attorney Dana Hana. Photo COURTESY/Rapid City Journal

Lawyers file motions in ICWA case
By Brandon Ecoffey
Native Sun News Managing Editor

RAPID CITY— Lawyers working on behalf of the Oglala Sioux Tribe, the Rosebud Sioux tribe and four Native American families have asked a court to issue a judgment based on the law in Oglala Sioux Tribe v. Van Hunnik.

The suit that was brought against the state of South Dakota alleges that the state’s courts and specifically Pennington County courts have institutionalized violations of the Indian Child Welfare Act and the rights to due process of Native American families during an abuse and neglect hearing. The motion filed by the plaintiffs for summary judgment last Friday, if granted, would prevent the case from going to trial and allow for the judge to issue a ruling based on the law. In addition to the request for summary judgment the plaintiffs also filed dozens of court records under seal that they feel demonstrate proof of their allegations.

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 their 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 documents filed last Friday the plaintiffs supplied the court with what they feel are examples of blatant violations of ICWA and rights to due process by South Dakota State court judges after reviewing 120 transcripts of 48-hour emergency hearings involving Native American Children.

Earlier this year U.S. District court Judge Jeffrey Viken ordered court reporters to turn over transcripts from these hearing however, six judges in the state initially refused to comply with the order. Lawyers for the plaintiffs have argued that the evidence needed to prove that the judicial process in South Dakota is in fact in violation of ICWA and federal law is present in these transcripts. The judges would eventually comply and turn over hundreds of copies of transcripts from the hearings in questions.

After reviewing the records the lawyers for the plaintiff submitted a list of undisputed facts to the court and in them listed examples of what they feel are judges violating the rights of parents.

“The transcripts that were produced demonstrate that in at least 90 percent of Defendants’ 48-hour hearings, orders were issued removing Indian children from their homes. It appears that in 100 percent of the hearings decided by Defendant Hon. Jeff Davis on the merits, Judge Davis issued orders removing Indian children from their homes,” they said in the motion.

Under federal law state court’s are required to initiate an inquiry to determine if the emergency that caused the removal of a child from its home is both with merit and still present. However, several examples were presented to the court where this inquiry never took place and show that on average these hearing lasted only four minutes.

Judge Davis, who is named in his official capacity in the suit presided over dozens of hearings where no evidence was presented by the state against a parent as to why the state chose to remove their child from their custody. In one case from February of 2010 “Judge Davis did not require DSS or the State’s Attorney to present any facts as to the emergency that caused the children’s removal or whether the emergency had terminated. Nevertheless, Judge Davis signed an order granting DSS additional custody for 60 days. The parents were not asked any questions until the very end of the hearing, after Judge Davis had already announced his intentions to sign the order allowing DSS to keep their children.”

In another case from October of 2010, Judge Thorstenson, informed a Native American father that he would be going forward with the recommendations of the Department of Social Services without presenting any evidence against him. When asked by the father what the allegations made against him were Judge Thorstenson informed him that “I don’t want you discussing the details of the case, but work with DSS and see what they can do.”

The suit also alleges that the court has failed in its duty to inform social services that they are to return the child to the custody of its parents after the emergency that caused the initial removal has been removed.

Lawyers representing the state of South Dakota are expected to oppose the motion for summary judgment within the next couple of weeks.

(Contact Brandon Ecoffey at Copyright permission Native Sun News

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