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From Staff Reports

RAPID CITY—Calling it a “fundamental lack of competence,” a federal judge last week denied South Dakota’s argument that he reconsider his earlier decision, which found the state violated the Indian Child Welfare Act (ICWA) and denied Indian parents their constitutional rights.

In March 2015, Judge Jeffrey Viken issued a partial summary judgment favoring plaintiffs in Oglala Sioux Tribe v. Luann Van Hunnik, concerning emergency removal or “48-hour hearings” in Pennington County.

State asked the court to reconsider its decision, which found Social Services, state’s attorney Mark Vargo, and Judge Jeff Davis ignored federal law, including statutory ICWA codes, and numerous civil procedures in simple, perfunctory hearings, which resulted in removing thousands of Indian children and putting them with non-Indians, in so-called foster homes.

State defendants challenged Viken’s ruling, asserting that “omissions” resided in the transcript and Indian parents failed to receive necessary documents.

“The DSS defendants miss the point of the court’s findings,” wrote Viken in his decision. “The issue is not what the Indian parents knew about the reasons their children were initially removed from the parents’ custody, but rather the factual basis supporting continued separation of the family.”

The findings last March, he wrote, were justified based on evidence against the state, and that “defendants’ challenges to the court’s legal conclusions are little more than a repeat of losing arguments made in earlier filings. Nothing raised by defendants points out ‘a manifest error of law’ requiring reconsideration.”

State officials were not available for comment on the latest decision.

The class action case is now in its third year. Filed in March 2013, by three Indian mothers and the Oglala and Rosebud Sioux tribes, it was intended to address ongoing state violations.

According to tribal officials and advocacy groups, ar least 750 Indian children each year are grabbed into state foster care, sometimes for months on end, often with little or no compliance with state and federal law.

For years, Indian parents in Pennington County have been denied court-appointed counsel as stipulated in ICWA, or the right to speak in their own defense, cross-examine witnesses or present evidence at emergency hearings; many of these hearings lasted less than 90 seconds, according to the lawsuit.

They were also denied the right to review secret petitions filed against them, documents routinely available to the judge.

Indian plaintiffs are represented by Stephen Pevar, ACLU, and Rapid City attorney Dana Hanna and former defense attorney in Rosebud.

The lawsuit seeks declaratory and injunctive relief for future cases, and other parents “similarly situated” across the country.

The case has gotten national attention and is a measure for upholding the statute, enacted in the 1970s. It was intended to protect against state agencies and courts routinely placing children into non-Indian settings from which they had no hope of escape.

The case now moves to its “remedy phase.” Parties will give the judge their ideas on how future ICWA cases should be adjudicated.

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