RAPID CITY - SOUTH DAKOTA -- In what is being called a
rare move, the Department of Justice last week threw its support behind
two South Dakota tribes and two Native American mothers that have
accused state officials of violating the Indian Child Welfare Act by
taking custody of their children for 60 days after only a brief hearing.
United States District Judge Jeffrey Viken on Friday granted the
Department of Justice's motion to comment as a friend of the court in
the lawsuit filed in 2013. In doing so, Viken acknowledged the
department's amicus brief outlining its interpretation of the rights
Native American parents have under the Indian Child Welfare Act when
their children are removed from their homes.
The South Dakota
Department of Social Services often is called to take custody of
children when law-enforcement officers handle a domestic situation,
during a criminal investigation or when a warrant is served. Under state
law, a custody hearing is required within 48 hours of a child's removal
from a home. Such hearings are referred to as "48-hour hearings."
decision is good news, according to Rapid City attorney Dana Hanna,
who, along with the American Civil Liberties Union, represents the
Oglala Sioux and Rosebud Sioux tribes and mothers Madonna Pappen and
Lisa Young in the 2013 lawsuit. The suit was filed on behalf of all
Native American parents whose children were taken through the actions of
the Department of Social Services, Pennington County State's Attorney's
Office and the Seventh Circuit Court.
"The Indian plaintiffs in
this case and their attorneys are delighted that the Department of
Justice has supported virtually all our legal arguments that we have
raised in our lawsuit against the state officials," Hanna said in an
interview on Friday.
"We are confident that the brief filed by the
Department of Justice will be very helpful to the district court in
arriving at a just decision in this case."
The DOJ's participation in the case is a "very rare and unprecedented event," Hanna said.
The action shows the importance of the case, according to ACLU attorney Stephen Pevar.
may be the first time since ICWA was passed in 1978 that DOJ entered
into an ICWA case at the district court level," Pevar said in a news
The National Indian Child Welfare Association,
headquartered in Portland, Ore., also welcomes the DOJ's involvement in
the South Dakota case.
"It is our hope that this is just the first
of many actions the United States will take to better ensure Native
children and families are treated fairly under the law and that
non-compliance with the Indian Child Welfare Act is no longer
tolerated," Executive Director Terry Cross said Thursday in a statement.
"As always, NICWA stands in support of South Dakota's Indian families,
tribes and children. With today's development, we are one step closer to
achieving justice for them."
South Dakota Attorney General Marty
Jackley's office represents the judiciary in this case. On Friday, his
office said that he cannot comment on ongoing litigation.
lawsuit accuses Seventh Circuit Court judges of conducting perfunctory
48-hour hearings and placing children in foster care when the Department
of Social Services takes temporary custody of Native American children.
The lawsuit criticizes the speed of the hearings and the treatment
given parents during the hearings.
In the "Conclusion" section of
its brief, the Department of Justice wrote: "ICWA imposes a specific
obligation on state officials, including state courts and departments of
social services, to actively investigate and oversee emergency removals
of Indian children to 'insure' that the removal ends as soon as
possible, and that Indian children are 'expeditiously' returned to their
parents or their tribe, or that the state commences a child custody
proceeding subject to all of ICWA's protections." That obligation, the
brief continues, "applies to initial hearings such as the 48-hour
hearings at issue here."
In July, the attorneys filed motions
asking the federal court to hold as a matter of law that certain
practices used in Pennington County's initial 48-hour custody hearings
involving Native American families violate federal law.
Many such hearings last less than two minutes, according to Hanna.
review of hearing transcripts filed in the case shows parents are given
no meaningful opportunity to speak or questions the judges, Hanna
"They are expressly told by the judges that they are not
allowed to give testimony in the 48-hour hearing," Hanna said in an
The federal brief cites the plaintiffs' assertion
that "the 48-hour hearings are, almost without exception, cursory
affairs, and that no testimony or evidence is permitted." The brief
added that under federal law, "(S)tate officials must conduct an inquiry
into whether the emergency removal is still necessary to prevent
imminent harm to the child, and must accept and/or present evidence on
this issue, either at the 48-hour hearing or at another hearing soon
Such a hearing, the federal brief said, "should
include an opportunity to present witnesses and evidence on the parents'
At about 99 percent of the hearings, the court grants the state's petition for temporary custody, Hanna said.
Congress recognized a need for states to be able to take emergency
action to protect Native American children, it also imposes strict
limitations on that emergency authority, according to the brief.
emergency removal or placement should be terminated as soon as possible
by either returning children to a parent, custodian or tribe or
initiate a child custody proceeding within ICWA guidelines, according to
the Department of Justice.
The brief was submitted by U.S.
Attorney Brendan Johnson, Acting Assistant Attorney Generals Molly J.
Moran, Sam Hirsch and other U.S. Department of Justice attorneys.
this lawsuit, the Native American tribes and parents are trying to tell
state officials that temporary custody hearings do not meet
constitutional standards and violate ICWA, Hanna said.
"And now," Hanna said, "the Department of Justice has said that too."
Every week, Native American families are
torn apart in Rapid City in violation of their constitutional rights,
attorneys representing two Sout… Read more
With the backing of the American Civil
Liberties Union, the Oglala and Rosebud Sioux tribes will file a federal
class action today in Rapid Ci… Read more
A federal judge has decided that Native
American families deserve a chance to prove that South Dakota officials
routinely ignore their rights … Read more