Federal judge rules state officials violated rights of American Indians in custody hearings

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SIOUX FALLS, South Dakota — South Dakota state officials developed and implemented policies that have routinely violated provisions of the Indian Child Welfare Act and the due process rights of American Indian parents during preliminary child custody hearings since 2010, a federal judge ruled this week.

U.S. District Judge Jeffrey Viken issued his decision late Monday in the lawsuit filed by the Oglala Sioux and Rosebud Sioux tribes and Indian parents on how the state has run hearings in the state's seventh judicial circuit, which includes Pennington County. The hearings are typically held within two days of the state removing children from a home and usually last less than five minutes.

Viken's decision is the culmination of a multi-year dispute about Indian children in foster care in South Dakota. The tribes and parents have alleged the state violates the rights of parents by holding improper hearings after children are removed from homes. During the hearings, parents are not allowed to testify or provide evidence, are not allowed court-appointed counsel, and are not allowed to cross-examine the witnesses making the allegations.

Viken found in favor of all seven of the plaintiffs' claims and wrote in his opinion that state 7th Judicial Circuit Court Presiding Judge Jeff Davis and other defendants "failed to protect Indian parents' fundamental rights to a fair hearing." In addition, Viken found officials violated by the 1978 Indian Child Welfare Act, which ensures the state must meet a higher burden of proof before removing Indian children from a home and must return children to their home as soon as it's safe to do so.

While Viken ruled in favor of the plaintiffs, the litigation is still pending, in part. Viken will lay out in May how courts must act during the preliminary 48-hour custody hearings. And a different part of the lawsuit regarding the role of the state Department of Social Services — which Viken didn't rule on — could still go to trial.

Davis declined comment, the attorney general's office said it was not directly involved in the case and all private attorneys contacted didn't return requests seeking comment.

Viken wrote in his opinion that there were 823 children involved in the 48-hour hearings between 2010 and 2013 in Pennington County and that more 350 Indian children were kept in state custody for at least one month. In all of the 48-hour hearings overseen by Davis, who is one of several judges who handles cases, Viken found that the judge ruled in favor of keeping children in state custody 100 percent of the time.

Attorneys for the tribes and parents, including the American Civil Liberties Union, said the ruling was a major victory, not only for American Indians in the state but nationwide.

Stephen Pevar, the senior staff counsel of the racial justice program for the ACLU and professor at New York University, said it's the first time Indian tribes and Indian families have filed suit in federal court alleging systemic violations of the Indian Child Welfare Act in its more than 30-year history.

Dana Hanna, a Rapid City attorney who represented the families and tribes along with Pevar, echoed his co-counsel's sentiments.

"This case will be used — this decision will be used — as authority in other cases around the country when these issues are raised in other jurisdictions," said Dana Hanna, one of the attorneys for the plaintiffs.

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