In a significant legal victory for Native American tribes and families, a federal judge delivered a landmark ruling on Monday, March 30th, affirming that officials in South Dakota had systematically violated the Indian Child Welfare Act (ICWA) and infringed upon the constitutional due process rights of Indian parents. Judge Jeffrey Viken, presiding over the case of Oglala Sioux Tribe v. Luann Van Hunnik, issued a partial summary judgment in favor of the plaintiffs, highlighting widespread and systemic failures in protecting the integrity of Indian families. The ruling addressed seven key issues related to emergency removal hearings, often referred to as "48-hour hearings," within Pennington County, South Dakota. This Tribes Win Landmark Child Welfare Case is a major step towards protecting Native American families.
The lawsuit, a class action, was initiated in March 2013 by three Indian mothers and two tribal entities: the Oglala Sioux Tribe and the Rosebud Sioux Tribe. Their aim was to address what they asserted were persistent violations within the state’s child welfare system. The suit highlighted that approximately 750 Indian children were being placed into foster care annually, often for extended periods. The core of the complaint centered on the alleged lack of proper procedural and judicial oversight in these cases. For years, Indian parents had reportedly been denied fundamental rights, including the ability to speak in their own defense, access court-appointed counsel, cross-examine witnesses, or present evidence during these critical hearings, which frequently lasted only a matter of minutes. Furthermore, the plaintiffs presented compelling documentation and testimony indicating that parents were routinely denied the right to review the petitions filed against them – documents kept confidential and accessible only to the presiding judge.
The plaintiffs were represented by Stephen Pevar, a senior staff counsel for the American Civil Liberties Union (ACLU), and Dana Hanna, an attorney based in Rapid City. They filed the suit in the U.S. District Court for the District of South Dakota in Rapid City, seeking both declaratory and injunctive relief. Their goal was to protect the rights of Indian parents facing similar situations across the nation. This precedent-setting case was immediately lauded as a significant advancement in the enforcement of the ICWA, a federal law enacted in the late 1970s. The ICWA was designed to safeguard tribes from further disintegration caused by state agencies and court systems that historically placed Indian children into non-Indian foster and adoptive homes, often leading to permanent separation from their families and culture. This Tribes Win Landmark Child Welfare Case has implications that stretch far beyond South Dakota.
Barbara Atwood, the Mary Anne Richey Professor Emerita of Law and director of the Family and Juvenile Certificate Program at the University of Arizona School of Law, emphasized the far-reaching significance of Judge Viken’s decision. "Judge Viken’s powerful ruling is important, not just for tribal members in South Dakota but for Native people everywhere. The decision shines a light on [the] apparently rampant abuses of the emergency removal provision under the Indian Child Welfare Act," Atwood stated. She further added that the ruling "vindicates the fundamental right of Indian parents to a fair hearing when state officials remove their children—a right that was being systematically ignored by the defendants, including state court judges."
The court’s ruling specifically targeted the actions of Judge Jeff Davis, who presided over the Seventh Circuit. Judge Viken determined that Judge Davis had established policies and procedures that were adhered to not only by his judicial colleagues but also by other defendants named in the case, including state’s attorney Mark Vargo, State Director of the Department of Social Services (DSS) Lynne Valenti, and Pennington County DSS employee Luann Van Hunnik. Judge Viken argued that Judge Davis, in his official capacity, was not merely adjudicating the law but was effectively engaging in rulemaking.
Judge Viken wrote that the defendants, "by acquiescence in a longstanding practice of Judge Davis ‘which constitutes the standard operating procedure’ of the Seventh Circuit Court," had "exposed themselves to liability. Defendants created the appearance of regularity in a highly irregular process." Consequently, he concluded that "judicial and prosecutorial immunity do not extend to plaintiffs’ claim for injunctive and declaratory relief."
Furthermore, the court found that Judge Davis’s decision to delegate to the DSS the authority to decide when to return Indian children to their homes, without imposing any specific duty to do so, constituted an "abdication of judicial authority" that was "contrary to the protections guaranteed Indian parents, children and tribes under ICWA."
A particularly noteworthy aspect of Judge Viken’s decision was his frequent reference to the new Department of Interior Guidelines for State Courts Indian Child Custody Proceedings (DOI Guidelines). He cited these guidelines, published in the Federal Register on March 12th, more than a dozen times, emphasizing that they are "entitled to great weight" in state court proceedings involving the custody of Indian children. The DOI Guidelines were the result of extensive public hearings and written commentary coordinated and directed by the Bureau of Indian Affairs.
Judge Viken stated that "A simple examination of these administrative materials should have convinced the defendants that their policies and procedures were not in conformity with ICWA…the DOI Guidelines or the Guidelines promulgated by the South Dakota Unified Judicial System." He concluded with a poignant statement: "Indian children and their parents deserve better."
The ruling was met with a sense of relief and triumph, not only for the plaintiffs but also for Indian families nationwide who faced similar challenges.
Cyril Scott, President of the Rosebud Sioux Tribe, expressed his gratitude, stating, "This is such a great triumph for our Indian children. I want to thank everyone involved in this case, including Mr. Dana Hanna, Mr. Pevar, our relatives at Oglala Sioux Tribe, and the parents and children for whom this is a landmark case. I’m so proud, because now the state will be forced to abide by the rules in regards to ICWA. My mother was one of the authors of this legislation back in the 70s, and it was drafted at our kitchen table. So we couldn’t be more thrilled. It’s a great day."
Dana Hanna, who had worked alongside Stephen Pevar for four years to achieve justice for Indian families in South Dakota, echoed this sentiment. "All praise and honor should be given to those tribes and to the Lakota parents who have fought for the rights of all Indian people in this historic legal victory," Hanna said.
The court has set a deadline of May 1st for both sides to submit "appropriate remedies." The court will then address the following issues in a separate injunction and declaratory ruling:
- Provide parents with adequate notice prior to emergency removal hearings.
- Allow parents to testify at those hearings and present evidence.
- Appoint attorneys to assist parents in these removal proceedings.
- Allow parents to cross-examine the state’s witnesses in the hearings.
- Require state courts to base their decisions on evidence presented during these hearings.
Stephen Pevar emphasized the detrimental effects of the existing practices. "Indian children are being removed from their homes without giving parents and tribes any valid chance to respond. These reckless practices have led to enormous suffering by Indian children and their parents, and the unnecessary breakup of Indian families. This important ruling should help keep this from happening in the future," said Pevar. "We are very grateful that Judge Viken is putting an end to years of violations of basic rights."
One remaining issue before the court pertains to the length of time Indian children are held in emergency foster care by the DSS. Indian child welfare organizations have long argued that children are often kept in foster care long after the "emergency" that triggered their removal has ceased to exist. Indian parents have consistently complained that there is no valid legal or moral justification for keeping a child in state custody for months after the emergency has subsided. Pevar expressed hope that the state would be willing to settle this remaining portion of the suit, now that the other issues have been adjudicated. This Tribes Win Landmark Child Welfare Case could have an impact on the futures of countless Native American children.
As it stands, Oglala v. Van Hunnik represents a significant milestone in American history, according to legal experts.
Barbara Atwood concluded, "The plaintiffs and their lawyers were courageous to challenge the very judges who have authority over their families. The ruling will surely benefit tribes and tribal members for years to come." The case of Tribes Win Landmark Child Welfare Case serves as a reminder of the ongoing struggle for justice and equality within the American legal system.