Law | National

Native Sun News: Lakota children in 'imminent danger' in state

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

From left to right: Carole Crazy Thunder-O’Rourke, Oglala Sioux Tribe Vice-Chairman Tom Poor Bear, ONTRAC Director Juanita Scherich, Valerie Janis, Lema Richards, ACLU attorney Stephan Pevar, William Chase and Rapid City attorney Dana Hanna. Photo by Richie Richards

Lakota children and imminent danger
Class action lawsuit will stop DSS actions
By Ernestine Chasing Hawk
Native Sun News Staff Writer

RAPID CITY –– Indian children living in South Dakota may no longer be “in imminent danger” from the grasp of state social workers who remove them from their families, place them in the foster care system where they may languish for years before being reunited with their families of origin.

The class action lawsuit, which involves the first 48 hours after an Indian child is taken from his or her family, alleges the State of South Dakota regularly violates the Constitutional Rights of Indian parents and provision 1922 of the Indian Child Welfare Act during the “show cause” hearing.

The case, OST et. al vs Van Hunnik et. al., being heard in the Federal Courthouse in Rapid City before Chief U.S. District Judge Jeffery Viken, was filed two years ago by ACLU attorneys Dana Hanna and Stephen Pevar on behalf of the Oglala and Rosebud Sioux Tribes and all Indian parents in Pennington County against the Department of Social Services, Judge Jeff Davis and the States Attorney Mark Vargo.

Last week attorneys argued on the scope of judicial privilege when it comes to conversations Davis had with other judges and his staff. Plaintiffs have asked for “discovery” of those conversations.

In question is whether or not Davis instructed other judges and DSS workers on the procedures used during the 48 hour show cause hearings.

“What we already know is that Judge Davis is a policy maker in his courtroom,” Pevar said and that the five judges that hear ICWA cases use identical procedures. “Everyone follows the same procedure. Why?”

“What we don’t know is if Judge Davis counseled other judges,” he added and, “If not, we will never know unless he answers these questions.”

Davis’ Attorney Nathan Oviatt argued that it is in the best interest of the public for a judge to have private communications with his staff without public scrutiny.

“Plaintiffs are seeking to strike right at the heart of what judicial privilege (is)” Oviatt said and that judges will be afraid to discuss cases with staff fearing they will be made public.

Pevar countered that judicial privilege applies to cases before a judge and never to discussions with staff, “Our case is the perfect example of when it is not applied.”

Attorneys for the plaintiffs have filed motion for a summary judgment on two of the three claims raised in the case. The two claims are that the state defendants regularly deprive Indian parents of their constitutional right to a fair hearing and that the defendants regularly violate provision 1922 of the Indian Child Welfare Act.

Defendants have asked for a deferment on the motion for a summary judgment on the two undisputed claims awaiting the outcome on the motion for discovery.

“There is no basis for deferment,” Perval said because the motion for discovery of Davis’ records “Has nothing to do with the pending motions.”

The lawsuit focuses on the very first court appearance after a child is taken into custody by DSS called the “48 hour temporary custody hearing” where parents are not allowed their constitutional right to an attorney and a meaningful opportunity to be heard.

“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 said.

Parents of Indian children are also protected under provision 1922 of the Indian Child Welfare Act which plaintiffs argue is regularly violated by the courts and state DSS workers.

“The State authority, official, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.”

“The issues that we are talking about are going to be binding in South Dakota,” Hanna said although the lawsuit involves Pennington County parents and their children. “For more reasons that have more to do with just how to try a lawsuit and not have a case that is going to endure for 10 years, we focused on where we thought the problem was most obvious and bad and that’s Pennington County.”

Viken said he needed time to look at the issue relating to judicial privilege however denied the defendants request for a stay and expects to make a ruling on “motions for summary judgment” by the end of the month.

(Ernestine Chasing Hawk can be reached at

Copyright permission Native Sun News

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