Native Sun News: ICWA decision opens door for tribal lawsuits

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

Judge Viken

ICWA ruling opens door for tribal lawsuits
By Brandon Ecoffey
Native Sun News Managing Editor

RAPID CITY— Last week Jeffrey Viken, Chief Federal Judge for the District of South Dakota, entered a 43 page opinion denying the State of South Dakota’s motions to dismiss a suit against them alleging violations of the Indian Child Welfare Act as well as the systematic denial of the right of due process for tribal members who have had their children taken by the state.

The ruling by Judge Viken is a positive sign for the Oglala Sioux Tribe, Rosebud Sioux Tribe, and the three female plaintiffs who have accuse Pennington County of systematically violating specific provisions of ICWA and denying Native American families their constitutional right to due process.

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 Pennington County during the initial hearing the parents of a child who has been taken are not allowed to see or challenge the evidence that is being used to take custody of their child. According to the suit there is no attempt at all from the state to provide any level of due process.

“It shocking to me and it would be shocking to most people in South Dakota white, Indian, or other that if the state takes your child you are not able to say anything about it for sixty days,” said Dana Hanna, in an interview a day after the lawsuit was filed. “The current hearing that is provided by the state is a total sham.”

One of the motions to dismiss filed by the state related to a request by the plaintiffs for the state to provide a list of cases and transcripts of the review hearings where Native parents are allegedly being denied due process. Judge Viken ruled that the state must comply with the request for expedited discovery and established a time table for the state to comply with.

“The state has been claiming confidentiality of these transcripts of these hearings for two years and now a federal court has finally ordered that we can and will have access to these transcripts that are necessary to prove our case and I have every expectation that they will,” said Dana Hanna.

The transcripts will include verbatim what took place in the hearings and whether or not the rights of tribal members and the legal protections granted by ICWA are being denied by the state. The crux of the evidence needed to prove that these violations were taking place, if present, will be outlined within these court transcripts. The state file included several reasons why this request should be dismissed including a lack of man power needed to fulfill the task.

The suit also named Judge Jeff Davis in his official capacity. Judge Davis is accused of being a policy maker who through his rulings and the way in which he established how other judges conducted the custody hearings in question created a process of denying Native American families their right to due process. Judge Viken denied the motion to dismiss filed by the State.

In a ruling that may have impact beyond the scope of this specific case Judge Viken also ruled that both the Oglala Sioux Tribe and the Rosebud Sioux Tribe can seek Federal relief on behalf of its tribal members. The State had argued that tribes did not have the legal standing to challenge the violations of individual’s rights in Federal court; however Judge Viken dismissed their claims and has allowed the case to move forward. According to attorneys there is no legal precedence in the 8th Circuit for a tribe to challenge in federal court on behalf of its members and very limited case law across the country regarding it.

(Contact Brandon Ecoffey at

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