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Native Sun News: Federal judge hears arguments in ICWA case

The following story was written and reported by Ernestine Chasing Hawk, Native Sun News Staff Writer. All content © Native Sun News.

Indian children in South Dakota. Photo from Lakota People's Law Project / Facebook

Law suit against DSS to be heard in Rapid City court Thursday
Native Sun News Staff Writer

RAPID CITY –– A case involving the first 48 hours after an Indian child is taken from its home that has gotten national attention was heard Thursday at the Federal Courthouse in Rapid City.

The class action lawsuit alleges the State of South Dakota regularly violates the Constitutional Rights of Indian parents and provisions of the Indian Child Welfare Act.

Two years ago Attorney Dana Hanna and Steven Pevar Attorney from the America Civil Liberties Union filed on behalf of the Oglala and Rosebud Sioux Tribes and two parents Madonna Pappan and Lisa Young representing all Indian Parents in Pennington County a federal civil rights lawsuit against the Department of Social Services, Jeff Davis who is presiding Judge in the state court system in Rapid City Pennington County 7th circuit and the States Attorney’s office.

“We are alleging they systematically deprive Indian parents, Indian Children and Indian Tribes of the rights guaranteed to them under the Indian Child Welfare Act. We are also alleging they deprive parents and Indian Children of basic constitutional due process of law which basically means a fair hearing when they put their kids into temporary custody foster care proceedings,” Hanna said.

He explained the lawsuit focuses on the very first court appearance that happens in those cases called the “48 hour temporary custody hearing.” whenever cops and DSS take custody of kids in what they categorize an emergency, “No evidence is presented and there’s no real legal standard in our view that is used in these proceedings.”

The lawsuit asks the court to declare, “that what the state and the state court judge is doing is a violation of people’s constitutional rights involving a fundamental liberty that is your right to have care and custody of your children.”

Hanna calls the hearings shams because “due process of the law guarantees you a meaningful opportunity to be heard, that is a hearing, before the state can take custody of your children and they’re not providing that.” He also adds that there are “special rights in addition to your Constitutional rights that are provided to Indian parents and children and tribes through the Indian Child Welfare Act.

“Whenever the state alleges child abuse or neglect and to take custody, put Indian children in foster care or terminate parental rights, the special provisions of the Indian Child Welfare Act kick in. These are designed to prevent unnecessary, unwarranted removals of Indian children from their families.”

Hanna said when Congress passed ICWA in 1978 they found that “Institutionalized anti-Indian racism in these state court cases was the rule rather than the exception and that’s why they passed the Indian Child Welfare Act.”

The lawsuit alleges that, “Pennington County, state officials, state Judges, state prosecutors, state DSS regularly violated at these first hearings.”

“Judge Davis has taken the stand that the Indian Child Welfare Act doesn’t even apply at the temporary custody hearings Judge Viken is saying yes it does, Judge Davis is still saying, no it doesn’t,” Hanna added.

Three months ago the attorneys filed all the motions and records for a “motion for summary judgment.”

“When an attorney files a motion for summary judgment in a civil case he or she is saying we don’t need a trial here because there are no facts in dispute. Therefore we entitled to have this case decided on the law. We are entitled to a judgment in our favor on the law,” Hanna said and that everyone involved in the case agrees a summary judgment as a process is a proper thing because there are no facts in dispute.

“The facts are what happens in these hearings and we’ve proved that without any factual dispute because we’ve submitted the transcripts of about 60 of these hearings,” Hanna said. “It’s not a dispute that they don’t give people a right to testify and it’s not a dispute that they don’t put on evidence. None of these things are factually in dispute.”

He said by filing a motion for summary judgment “you are cutting to the chase, your cutting through the Gordian knot and saying ‘Judge give us a ruling, we are entitled to a judgment on the law.’”

The law firm made motions for a summary judgment on two of the three claims raised in the case. The two claims are that “the state defendants are regularly depriving Indian parents of their constitutional right to a fair hearing and that they are regularly violate the Indian Child Welfare Act.”

Section 1922 of the ICWA code states that the emergency temporary custody of children is supposed to end as soon as there’s no longer any eminent physical danger to the children.

“That’s’ a pretty high standard. The whole intention of ICWA is so that children don’t languish in foster care for months and months meanwhile they are separated from their parents, their parents are separated from them,” Hanna said.

“It causes a great deal of anxiety and suffering on the part of both the kids and on the parents, and it weakens the family bond,' he added. "That’s our argument as to why this is bad. I think everybody agrees that what happens when you remove kids from all but the most terrible families.

"We are saying that standard is never applied and they will hang onto these kids for a year after the emergency has passed, after the kids are no longer in physical danger,” Hanna concluded. "Rapid City Judge Davis and DSS are trying to keep the hearing closed and the records on our motion to sanction him sealed."

(Ernestine Chasing Hawk can be reached at

Copyright permission Native Sun News

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