Native Sun News Today: Indian Child Welfare Act fight continues as South Dakota appeals lawsuit

The team that won the Indian Child Welfare Act lawsuit in South Dakota, from left: 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 / Native Sun News

S.D. officials appeal ICWA case
Challenge ruling of Judge Viken
By Ernestine Chasing Hawk
Native Sun News Today Managing Editor

RAPID CITY –– For those who’ve lost their Indian children to a system that steals their identity, culture and connection to their families of origin, and then subjects them to a foster care system where many may languish unconnected for decades, the Indian Child Welfare Act appeared to be a Godsend.

However, State Social workers and Pennington County officials continue to fight against implementation of several provisions of the Act in South Dakota, a state whose seizure of American Indian children is estimated to be more than 60 percent of the children in the foster care system.

The case, OST et. al vs Van Hunnik et. al., filed four years ago by ACLU attorneys Dana Hanna and Stephen Pevar on behalf of the Oglala and Rosebud Sioux Tribes, Madonna Pappan, and Lisa Young, individually and on behalf of all other persons similarly situated, alleged South Dakota Department of Social Services, the Judge of the 7th Judicial Circuit Court and the Pennington County State’s Attorney regularly violated Constitutional Rights of Indian parents and provision 1922 of the Indian Child Welfare Act during the “show cause” hearing.

According to Pevar, Indian parents lose “100 percent of the time” in these hearings, some that last as little as “60 seconds.” Plaintiffs in the case hoped to even the playing field by making sure South Dakota officials provided Indian parents with 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,” during those hearings.

In March of 2015, 7th Circuit Court Judge Jeffery Viken ruled in favor of Indian plaintiffs and ruled that the practices and procedures of the State Court, the States Attorney and the Department of Social Services regularly violated Constitutional and ICWA rights of Indian parents in seven specific ways and ordered then to adhere to the law.

In his 45-page summary judgment Viken wrote that “Indian children, parents and tribes deserve better,” and agreed with all seven of the ACLU’s claims, and ordered the state to: 1) Provide parents with adequate notice prior to emergency removal hearings; 2) Allow parents to testify at those hearings and present evidence; 3) Appoint attorneys to assist parents in these removal proceedings; 4) Allow parents to cross-examine the state’s witnesses in the hearings; 5) Require state courts to base their decisions on evidence presented during these hearings.

However during a hearing last August, attorneys argued that since that ruling, the four defendants in the case, Lisa Fleming, DSS Child Protection Services for Pennington County, Lynne A. Valenti, Secretary of the South Dakota Department of Social Services, Mark Vargo, the duly elected States Attorney for Pennington County, and Craig Pfeifle, the presiding judge of the 7th Judicial Circuit Court have largely ignored the court’s summary judgment decision in Oglala Sioux Tribe v. Van Hunnik case and have done “next to nothing in response to that order.”

Read the rest of the story on the Native Sun News Today website: S.D. officials appeal ICWA case

(Contact Ernestine Chasing Hawk at

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