Lakota Country Times: Historic decision for Indian Child Welfare Act

Youth on the Pine Ridge Reservation in South Dakota. Photo: Hamner Fotos

Historic Judgment Reaffirms ICWA
By Brandon Ecoffey
Lakota Country Times Editor

RAPID CITY -- In a case that has national implications for how state courts are supposed to conduct 48-hour custody hearings involving Native American children a federal judge has given one county in South Dakota very specific guidelines for how to conduct themselves.

In March of 2013, a lawsuit was filed against Pennington County in South Dakota by the Oglala Sioux Tribe and the Rosebud Sioux Tribe alleging that the State Attorney's office, DSS workers, and the courts were systematically violating the Indian Child Welfare Act and the rights of Native American Parents when conducting 48-hour custody hearings.

When a Native American child is taken into custody by a representative of the state the Indian Child Welfare Act requires that a hearing be conducted on the matter within 48-hours. These hearings as required by federal law must be substantial and afford the parents certain rights. Pennington County, however, has for at least since 2011, refused to allow Native American parents to view the evidence against them, cross examine witness, and at times only be afforded minutes in front of a judge prior to seeing their child entered into the state's Foster care system.

In March of 2015 a federal judge deemed the hearings conducted in Pennington County as unconstitutional and in violation of the rights of Native American parents to due-process. The judge would offer several different suggestions for how Pennington County could conduct hearings going forward in order to satisfy the rule of law, but county officials bolstered by an almost activist like attitude by state judges against the federal court ruling refused to comply.

In response to the 2015 ruling one South Dakota judge took it upon himself to email an article titled Federal law in the state courts---The freedom of state courts to ignore interpretations of federal law by lower federal courts to lawyers litigating an ICWA matter.

In an order written by United States District Court Judge Jefrey Viken that was handed down on December 15, 2016, he admonishes Pennington County State's attorney Mark Vargo for his admittance that he simply did not read the 2015 order. Pennington County has long held the position that their practices were in compliance with the law and has for the last 18-months continued to conduct their 48-hour custody hearings illegally.

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"The defendants continue to disregard this court's March 30, 2015, partial summary judgment order. That order outlined the defendants' violations of the rights of Indian children, parents, custodians and tribes guaranteed by the Due Process Clause of the Fourteenth Amendment and by the Indian Child Welfare Act," wrote Judge Viken.

The refusal of Pennington County to bring their policies in line with federal law led Judge Viken to issue a permanent injunction that will guarantee Native American parents who go through these 48-hour custody hearings are provided with the Right to adequate notice, to present evidence on their behalf, the right to cross examine their accusers, the right to counsel, and the right to a decision based on the evidence presented at the hearing.

(Contact Brandon Ecoffey at

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