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.
Chief 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."
Viken's 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.
"This 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 release Friday.
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.
The 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.
A review of hearing transcripts filed in the case shows parents are given no meaningful opportunity to speak or questions the judges, Hanna said.
"They are expressly told by the judges that they are not allowed to give testimony in the 48-hour hearing," Hanna said in an email Friday.
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 thereafter."
Such a hearing, the federal brief said, "should include an opportunity to present witnesses and evidence on the parents' behalf."
At about 99 percent of the hearings, the court grants the state's petition for temporary custody, Hanna said.
Although, 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.
An 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.
With 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."
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Chief 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."
Viken's 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.
"This 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 release Friday.
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.
The 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.
A review of hearing transcripts filed in the case shows parents are given no meaningful opportunity to speak or questions the judges, Hanna said.
"They are expressly told by the judges that they are not allowed to give testimony in the 48-hour hearing," Hanna said in an email Friday.
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 thereafter."
Such a hearing, the federal brief said, "should include an opportunity to present witnesses and evidence on the parents' behalf."
At about 99 percent of the hearings, the court grants the state's petition for temporary custody, Hanna said.
Although, 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.
An 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.
With 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."
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