NPR’s Laura Sullivan is back on the South Dakota beat covering the ongoing Indian foster child scandal. Listening to NPR just now, I learned from Sullivan that federal Judge Jeffrey Viken ruled last night that the Seventh Circuit Court, the Pennington County State’s Attorney’s office, the state Department of Social Services, and has regularly violated the rights of Indian children and parents by denying them proper due process in foster care placement hearings required by the Indian Child Welfare Act. Judge Viken finds…
- In 77 of 78 cases, hearing transcripts make no mention of the ICWA affidavits that DSS asserts it gave to parents to inform them of their rights and the charges provoking the state’s effort to take their children.
- Judge Jeff Davis rattled through a standard script in this 48-hour placement hearings and advised Indian parents they didn’t need to get a lawyer.
- “Judge Davis and the other Seventh Circuit judges presiding over 48-hour hearings (all jointly referred to as the ‘Seventh Circuit judges’) never advised any Indian parent or custodian they had a right to contest the state’s petition for temporary custody during the 48-hour hearing…. The Seventh Circuit judges never advised Indian parents they had a right to call witnesses at the 48-hour hearing. The Seventh Circuit judges never required the State to present sworn testimony from a live witness” [pp. 18–19].
- Judge Davis bears liability for this policy of discrimination, because no state statute compelled him to rule the way he did in these placement hearings, and the other defendants bear liability because they acquiesced to Judge Davis’s practices, creating “the appearance of regularity in a highly irregular process” [p. 27].
The ACLU, which is helping the Lakota plaintiffs, says Judge Viken ordered the state to take the following actions:
- Provide parents with adequate notice prior to emergency removal hearings
- Allow parents to testify at those hearings and present evidence
- Appoint attorneys to assist parents in these removal proceedings
- Allow parents to cross-examine the state’s witnesses in the hearings
- Require state courts to base their decisions on evidence presented during these hearings [American Civil Liberties Union, press release, 2015.03.31].
Too many Indian children and parents have been denied their rights under the Indian Child Welfare Act, perpetuating the ugly tradition of Western war against Native culture. Let’s hope Viken’s ruling stands and protects more Lakota families from our imperialism.