Federal Judge Rules Lawsuit over Treatment of South Dakota Indian Parents and Tribes Can Move Forward

January 29, 2014 12:00 am

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ACLU Charges Indian Parents and Tribes are Systematically Deprived of Basic Rights

January 29, 2014

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RAPID CITY, S.D. – A federal court has ruled that a lawsuit charging state and local officials with violating the rights of Indian parents and tribes in state child custody proceedings can go to trial.

The American Civil Liberties Union filed the lawsuit in March 2013 along with the ACLU of South Dakota and Dana Hanna of the Hanna Law Office in Rapid City. The lawsuit claims that Indian children are being removed from their homes in hearings that last no more than a few minutes, in which parents fail to receive a copy of the petition against them or have a chance to present evidence.

“We are thrilled that the court has recognized the importance of these issues to Indian parents and Indian tribes,” said Heather Smith, executive director of the ACLU of South Dakota.

The case was brought on behalf of two South Dakota Indian tribes – the Oglala Sioux Tribe and the Rosebud Sioux Tribe – and three Indian parents who suffered the loss of their children after very brief hearings in state court. The parents are Rochelle Walking Eagle, Madonna Pappan, and Lisa Young, all residents of Pennington County.

The defendants are State Judge Jeff Davis, Pennington County Prosecutor Mark Vargo, State Director of the Department of Social Services (DSS) Kim Malsam-Rysdon, and Pennington County DSS employee Luann Van Hunnik. In a 43-page ruling issued late yesterday, Chief Judge Jeffrey L. Viken denied motions to dismiss the case. He ruled that if the defendants are engaging in the policies and practices listed in the lawsuit, they are violating the federal rights of Indian children, parents, and tribes.

In a separate ruling, the judge held that the plaintiffs could represent a class of all Indian parents who are members of federally recognized Indian tribes and reside in Pennington County. He also granted a request filed by the plaintiffs to expedite certain aspects of the case due to the important interests at stake.

In 1978, Congress passed the Indian Child Welfare Act (ICWA) which, as Judge Viken points out, was intended “to curb the alarmingly high rate of removal of Indian children from Indian parents.” He agreed that if the plaintiffs prove at trial that the defendants are engaging in the practices challenged in the lawsuit, the defendants are violating that law, as well as plaintiffs’ constitutional right to due process.

“This is an important step forward for the rights of Indian families and tribes,” said Stephen Pevar, senior staff counsel with the ACLU’s Racial Justice Program. “We are grateful to Chief Judge Viken for taking the time to examine the complex issues raised in this case and for his sensitivity to the goals of the Indian Child Welfare Act.”

Rapid City attorney Dana Hanna, a co-counsel in the federal case, noted, “I have attended many of these cursory custody hearings in Pennington County and have repeatedly raised ICWA issues, to no avail. It’s vital that these federal issues will receive adequate attention.”

The lawsuit, Oglala Sioux Tribe v. Van Hunnik, was filed in U.S. District Court for the District of South Dakota in Rapid City.

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