The team that won the original Indian Child Welfare Act lawsuit in South Dakota, from left: Carole Crazy Thunder-O’Rourke, Oglala Sioux Tribe Vice-Chairman Tom Poor Bear, Oglala Nation Tiospaye Resource & Advocacy Center (ONTRAC) Director Juanita Scherich, Valerie Janis, Lema Richards, ACLU attorney Stephan Pevar, William Chase and Rapid City attorney Dana Hanna. Photo by Richie Richards / Native Sun News Today

Law | National

Advocates weigh next move in Indian Child Welfare Act case

Wednesday, September 26, 2018

Bittersweet ruling strikes down ICWA

By Ernestine Chasing Hawk

Native Sun News Today Staff Writer

nativesunnews.today

PIERRE – On September 14, the United States Court of Appeals for the Eighth Circuit vacated a lower court ruling that challenged the constitutionality of 48 hour hearings, some lasting as little as 60 seconds, that took Indian children from their families and placed them in custody of the South Dakota Department of Social Services.

The 2013 class action lawsuit, filed in Federal Court by the American Civil Liberties Union (ACLU) on behalf of the Oglala and Rosebud Sioux Tribes, alleged that state judges and state social workers removed Indian children from their homes in violation of their constitutional and Indian Child Welfare Act rights.

According to ACLU, the lawsuit “sought to halt state judges and social workers from removing Indian children from their homes unless the parents are provided with basic guarantees of due process of law and rights afforded by the Indian Child Welfare Act. These include the right to a fair and prompt hearing, the right to notice of the charges against them, the right to an attorney, the right to present evidence, and the right to cross-examine the state's witnesses.”

South Dakota Department of Social Services issued a press release heralding the September 14 ruling as a victory, “The opinion overturns the district court’s prior orders which granted partial summary judgment and declaratory and injunctive relief for plaintiffs in a case that challenged state court proceedings in 48-hour custody hearings involving temporary removal of Indian children due to emergency circumstances. The decision sends the case back to the district court with instructions to dismiss the claims that give rise to the orders.”

“Although this is an ongoing case, the department is pleased with the decision issued by the Eighth Circuit Court of Appeals,” said state Department of Social Services Secretary Lynne Valenti.

Indianz.Com on SoundCloud: 8th Circuit Court of Appeals: Oglala Sioux Tribe v. Fleming [Oglala Sioux Tribe v. Vargo]

The Eighth Circuit based its ruling on a procedural issue called the “abstention doctrine” stating that the federal court should not have been involved.

"The issue is whether the federal court should refrain from exercising jurisdiction and allow the claims to be resolved in the state proceedings," Judge Steven Colloton of the United States Court of Appeals for the Eighth Circuit wrote in the September 14 decision.

Senior ACLU Staff Attorney Steven Pevar in an interview with Native Sun News Today stated, “Essentially the Eighth Circuit Court held that we should have filed our complaints and allegations in state court. The ‘abstention doctrine’ broadly holds that the federal court should abstain when doing so would interfere with ongoing state proceedings. In other words with these 48 hour hearings, the parents should have raised these claims in state court.”

In 2015, Chief Federal District Court Judge Jeffrey L. Viken ruled in favor of the plaintiffs and found that the state had violated the rights of Indian parents and confirmed that: “State employees were removing children from their homes and then holding hearings in state court within 48 hours, in which parents were not assigned counsel to represent them, were not given a copy of the petition accusing them of wrongdoing, and no state employee was called to testify. Moreover, the parents were not permitted to testify, call witnesses, or cross-examine any state employee.”

Attorney Dana Hanna. Courtesy photo

Attorney Stephen Pevar. Courtesy photo

Judge Steven Colloton. Photo: Robert Westrich

However, 18 months later, in August 2016, Viken found it necessary to convene a compliance hearing as the state continued to disregard his ruling. In December of 2016 Viken ordered an immediate halt to further violations and issued a formal injunction stating failure to comply could result in a contempt of court violation.

“In a nutshell Judge Viken found they violated eight federal rights during those 48 hour hearings,” Pevar said and since that ruling the state has radically changed the way it conducts those hearings. “The judge issued an injunction to make eight changes and they made those changes. The families, children and tribes have already benefitted from the case.”

“The Eighth Circuit Court didn’t say Judge Viken was wrong, they are just saying the families should have filed in state court and made their complaints known,” Pevar explained.

The Senior ACLU attorney said he hates to lose any case, however the newest ruling is bittersweet, “If you lose a case where the defendants have already made the changes we asked for, then essentially the families have already won.”

At the 48 hour hearings, parents now have the right to an attorney, the affidavit of the charges against them, the right to a fair and prompt hearing, the right to present evidence, and the right to cross-examine the state's witnesses he said.

“I really doubt that the state will go back to their old ways,” Pevar continued.

Rapid City Attorney Dana Hanna applauds the changes DSS and the courts have made.

“The procedures that we are now following, created a much more fair procedure that hadn’t existed before we filed the lawsuit,” Hanna said. “We are hopeful that the States Attorney in Pennington County will want to continue with the system that we created, even though the circuit court is ruling that he is not ordered to do so.”