|The following opinion was written by Dana Hanna. All content © Native Sun News.
Courts are violating ICWA in South Dakota
By Dana Hanna
In a recent column in the Native Sun News, Regina Brave wrote about the history and importance of the federal Indian Child Welfare Act (ICWA) and asked about the current status of the lawsuit that was filed in federal court in which the Oglala Sioux Tribe and other plaintiffs claimed that state authorities were violating the ICWA rights of Indian families in state courts.
Along with lead counsel Stephen Pevar of the American Civil Liberties Union (ACLU) and Rachel Goodman of the ACLU office in New York, I am one of the attorneys representing the Indian plaintiffs in that lawsuit. I am writing to thank Regina Brave for drawing further public attention to this very important issue and to answer her question about the current status of that federal lawsuit.
Earlier this year, the Oglala and Rosebud Sioux Tribes and three Indian mothers filed a lawsuit in federal court in Rapid City on behalf of all parents of minor Indian children in Pennington County. That lawsuit, Oglala Sioux Tribe v. Van Hunnik, charges that the South Dakota Department of Social Services (DSS), the Pennington County State’s Attorney’s Office, and the presiding judge and other judges in the Seventh Judicial Circuit routinely violate the constitutional and ICWA rights of Indian parents in child abuse and neglect cases. In a nutshell, the Indian plaintiffs charge that state court judges, assisted by DSS and state prosecutors, routinely order Indian children into long term foster care placements, based on allegations of neglect or abuse, without giving their parents any kind of fair and meaningful hearing. The Indian plaintiffs are seeking an order from the United States District Court that would prohibit state court judges, DSS and the State’s Attorney’s office from placing Indian children in foster homes unless they first give Indian children, parents and Tribes the fair hearing that is their right under ICWA.
In this lawsuit, the Indian plaintiffs’ legal argument is really quite simple and straightforward: Any state system that removes Indian children from their parents and places them in long term foster care through a judicial proceeding in which only the State is allowed to present evidence, but Indian parents are not allowed to present evidence, is a system that is fundamentally unfair, fundamentally unconstitutional and fundamentally racist.
The lawsuit focuses on the first judicial hearing that takes place in all child abuse and neglect cases–the 48 hour temporary custody hearing. State law requires that parents be given a hearing before a judge within 48 hours after an emergency removal of their children from their home. Under ICWA and state statutes, the purpose of that hearing is to have the judge consider evidence so that he or she can make an objective determination as to whether giving physical custody of the children to DSS is necessary to protect the children from abuse or neglect. Under ICWA, at any hearing in which the State seeks to place an Indian child in a temporary foster care placement, the parents of an Indian child have a right to challenge the State in an evidentiary hearing and they have the right to have an attorney in that hearing.
Our lawsuit claims–and we can prove–that over the past four years, state court judges, prosecutors and social workers have routinely denied those fundamental federal rights to Indian parents in Pennington County. In the 48 hour temporary custody hearings, judges will hear no sworn testimony from any witness; only the State is allowed to present evidence, which consists of police reports and affidavits by DSS caseworkers; and the Indian parents are never given, or even informed of, their right under ICWA to be represented by a court-appointed lawyer in the 48 hour hearing. Although the State is allowed to present evidence of neglect in the form of written reports and affidavits, the Seventh Circuit courts do not allow the parents to give sworn testimony or to present any evidence in those hearings.
Our lawsuit charges that for the past 4 years, the judges of the Seventh Judicial Circuit have routinely ordered Indian children into long term foster care in 48 hour hearings in which Indian parents have virtually no rights to contest the State’s petition to take their children.
So where are we now? Soon after the Oglala Sioux Tribe and the other plaintiffs filed this lawsuit, the state defendants, represented by private counsel and the Attorney General of the State of South Dakota, filed motions asking the court to dismiss the lawsuit, arguing that Indian parents have no rights under ICWA at the 48 hour temporary custody hearing.
In our view, such an interpretation of ICWA is absurd: it defeats the very purpose of ICWA and leaves tribal children to the tender mercies of the State child welfare system.
Five months ago, the Indian plaintiffs submitted briefs opposing the State defendants’ motions to dismiss. We have recently been informed that we can reasonably expect a decision by the court on the motions to dismiss in the very near future. If the federal court rules in our favor, that decision will not end the case, but we expect that it will decide many of the important questions of law that are at the heart of our case.
We hope to get a decision within the next few weeks that will be a major step forward in changing the way Indian parents, children and Tribes are treated in child abuse and neglect cases in the state courts of South Dakota.
Dana Hanna is an attorney with the Hanna Law Office, P.C. in Rapid City. A former Attorney General for the Rosebud Sioux Tribe, his practice focuses on Indian law, federal civil rights, and criminal law.
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