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Lowe: Viken ICWA Ruling Protects All SD Children and Parents from State Overreach

Hmm… given the significance of Judge Jeffrey Viken’s ruling in the American Indian foster care/Indian Child Welfare Act case in Rapid City, I’d have thought that our state Republican party would have had some press release extolling the sanctity of family values and criticizing an overreaching state for violating parental rights.

But no. The SDGOP has been too busy pooping its pants over legislative resignations and Mike Rounds’s photo contest.

South Dakota Democratic Party Vice-Chair Joe Lowe at least has something constructive to say about family values and propers checks on government power:

Chief U.S. District Judge Viken’s Federal Court Order righted a wrong that has been going on for years. Native American children were taken away from their parents without due process in our State. Our state will now have to treat these parents fairly and with dignity.

For years parents and guardians have complained about their rights being violated during child custody hearings in State Courts. Many were never advised they could contest the State’s petition for temporary custody. They were not advised they could call witnesses during the hearing.  The State was never required to present sworn testimony from a live witness and parents were never told that they had the right to testify at the first hearing after a child had been taken.

This court order is a tremendous victory for our State. No child should ever be taken away from their parents without due process. This ruling ensures all are treated equally [Joe Lowe, press release, 2015.04.01].

Not one of those words would set a Republican tongue ablaze. Defending parental rights and demanding due process should roll right off the conservative tongue. But in South Dakota, it takes our man Joe to put things in perspective.


  1. Troy 2015-04-02 06:58

    If the consensus is that youth on the reservations are in good care and the tribe is doing a good job protecting the few who aren’t, maybe the State child protection services should just stop their efforts at the reservation border except for white kids? This is what I’m hearing from the celebration of this ruling.

    Otherwise, because these are temporary custody situations where the State fears for the imminent safety of the child, or am I hearing the State should go through a long process in such situations. If a few kids get killed? No big deal.

    Your desire to slur Governor Dauguaard has reached a new low. We are talking about children who are believed are in a dire circumstance and whose safety is at risk.

    Just to be clear: My comment about stopping at the border is not my view. If parents aren’t protecting their children and the tribe isn’t doing its job, I will not abandon the defenseless to prove a point and believe the State should err on the side of caution.

  2. larry kurtz 2015-04-02 07:22

    Rounds and Daugaard repeatedly broke the law while covering up crimes against children perpetrated by clergy members. They should be prosecuted to the full extent of the law.

  3. David Moore 2015-04-02 09:07

    RE: DSS & Federal Judge Ruling

    It’s not just Pennington County, as many 7th circuit cases originate from the Martin office where regional supervisors like Robin Sones maintains status quo over multiple county jurisdictions.

    I am one of those non-native american parents fighting a corrupt and divisive SD-DSS system to rescue my daughter and take her home. Due to actions solely stemming from a bio-mother’s attempt to cross the country and conceal my child in the remoteness which is the 7th circuit court’s jurisdiction. Over the past 18 months I have had to experience every point the Federal Judge stated, and not been able to bring my daughter back to her home. (See Facebook group “Rescue Morgan Johann Moore”)

    Maliciously ignored, and fundamentally abused by what i see as a corrupt DSS and their agents, I will once again enter the courts on April 7th in Pennington County to try and rescue my daughter from the unforgiving situation now caused by the State DSS and a court and state attorney system they have manipulated. I hope this ruling brings relief to our plight as well, but I fear they will only circle the wagons tighter as it pertains to groups like the Black Hills Children’s Home that was founded by Governor Daugaard.

  4. Patrick Duffy 2015-04-02 09:16

    Err on the side of caution? Troy is a good man. A very good man. But he does not understand this issue well. If he did, his heart would soften.

    To “err on the side of caution” is to say that one will wrench children from their homes, place them in temporary care, frighten them, terrify them, and scar them for life. Troy’s misstated belief reminds me of Mrs. Sweeney, my fourth grade teacher in Fort Pierre. As tough as a hard-boiled owl, she would remind us continually that it was better that 100 guilty men go free than that one innocent man should be unjustly punished. That idea grew passe with the rise of the American Ayatollah class: those who believed in safety above all, those who believed the innocent should be unjustly punished so that we could assure ourselves of a mythic form of “safety” that never existed, until the Ayatollah Class began to scold, and seize, and punish us all.

    But this is far more serious than the wrongful punishment of those wrongly accused of crime. These children are innocent. They are our children, Indian, white, black, it makes no difference, none at all: no child should be seized from his home just to “err on the side of caution.”

    The kind of existential destruction of young souls that inevitably comes with “erring on the side of caution” is beneath us as a society. We used to believe that, all of us, but now we let “the devil take the hindmost.” The idea that innocent children ought to be seized by the state just to be “sure” has an awful ring to it, a savagery that literally takes ones breath away.

    We have reached a shocking point in our history, a place where the most innocent among us is sacrificed on an altar of expediency.

    It’s time to stop and reevaluate what we are doing, who we are as a people.

  5. Bob Newland 2015-04-02 09:22

    A few kids have been killed, Troy. Gina Score was run to death in Plankinton by Bill Janklow’s “corrections officers.” Brady Folkens was killed by Marty Jackley’s “corrections officers” in Custer; ridiculed by them as he begged for a doctor.

  6. jerry 2015-04-02 09:40

    The republican death panels have been slowed with this ruling. Now if we can get the corrupted Daugaard to see the value of helping the working poor by expanding Medicaid, we would be gaining a lot. Daugaard made money off of this either directly or indirectly and should be ridiculed for this.

  7. mike from iowa 2015-04-02 10:08

    It ain’t like wingnuts had nothing to do with this “wrong that has been going on for years.” Confession is good for the soul,but,one wonders if the Earth will last long enough to hear all these confessions perpetrated by basically the “party of family values?”

  8. Troy 2015-04-02 10:13


    I’m pretty sure we really aren’t very far apart. To the extent we are, I don’t believe it is really material. You understand and are charged with the system working right. We both want the right result.

    The essence of my statement comes from conversations with many of my family close and extended. It seems we have more than our share of teachers, school counselors, social workers, and pediatric health care professionals. When child tragedies get discussed they talk about how there is timidity to action because the recrimination for a bad decision is great. All of the people who go into these fields are well-motivated with regard to child welfare. I guess I just think we should give some presumption of good motive to low level child welfare people who act. If they act precipitously, treat it as a learning experience and not throw the book at them (thus my comment on err on the side of caution).

    If there are things that we can improve with regard to process, I am all for it just so long as it doesn’t extend time or add bureaucracy or undue recrimination from well-intended action. I’m with Mrs. Sweeney. Its part of my opposition to the death penalty. I’d rather we take 10 kids out of a home for a few days precipitously (every effort must be made to minimize the trauma you mention even so there isn’t a lasting scar though I believe in the resilience of kids) if it saves one kid from severe abuse or even death at the hands of their parent.

    Happy Triduum Pat.

  9. Patrick Duffy 2015-04-02 11:02


    It’s never “just a few days.”

    The “standard order” is sixty days. It is issued from a star chamber proceeding where parents are deliberately and wrongly told they have no right to counsel.

    For virtually any parental transgression you can imagine.

    Lower level DSS employees are often incompetent, over-worked, poorly educated, completely unqualified, and more often than not, mean. They need kids taken from their parents in order to justify their paychecks. Without children as grist for the mill, the paychecks stop. The bureaucracy stops. The money from D.C. stops. The myth of a balanced budget goes out the window.

    In short, the emperor has no clothes.

  10. Kyle Krause 2015-04-02 11:35

    Patrick, the data contradicts your statement that it is never just a few days. The numbers from Judge Viken’s decision show that slightly over 40% of children are discharged from DSS custody either at the 48 hour hearing or within 15 days thereof.

    Tony, next to none of the cases at issue in this suit involve children located on reservations. There is no reservation in Pennington County. Most of these cases are Native parents living in Rapid City. Whether state DSS operates on reservations is up to the tribes, and when they do, the tribal courts are the ones exercising ultimate decision making authority regarding whether the child can return home. Some tribes (e.g. Rosebud) use DSS services, and some (e.g. Pine Ridge) do not.

  11. bearcreekbat 2015-04-02 12:04

    Troy, while I agree with much of Duffy’s comment, I think he is wrong in denigrating CPS workers who are in the trench. They have no power or responsibility for what occurs at the 48 hour hearing. The District Court found that Judge Davis set these illegal policies, and that the other defendants, including Mark Vargo, acquiesced in the illegal policies.

    Duffy is dead right, however, in recognizing that Judge Davis and other defendants did not err on the side of caution. Indeed, under Judge Davis’ policies, no lawyer, including Duffy, was even permitted to call an expert witness to testify that the particular child in question would suffer more harm in foster care than if he or she were returned to the parent pending a full resolution of the case.

    And Kyle is right that many kids were returned before 60 days, but Kyle overlooks the stark fact that these returns were based on the exercise of unfettered DSS discretion, rather than any judicial determination. And the District Court found that in contested cases, Judge Davis granted the State’s motion for 60 days custody in 100% of the cases over a four year period. Really? The State never once made a mistake that Judge Davis could recognize? – Even though the State presented no evidence that was actually admitted as an exhibit nor live testimony since Davis neither required nor allowed actual evidence in a 48 hour hearing, and refused to appoint council before issuing the 60 day custody order. That, the District Court found, is an abdication of judicial oversight required by our Constitution and laws.

  12. Roger Cornelius 2015-04-02 13:18

    The SDGOP has declared a war on children by changing the peoples mandate on the minimum wage. They have continued that war by not adequately funding education and paying children’s teachers a fair wage.

    If anyone here believes that republicans give a good goddamn about Indian children they are sadly mistaken.

    Troy’s comments are nothing more than the typical republican law and order self-righteousness that Indians have come to be expect.

  13. jerry 2015-04-02 14:50

    One thing the SDGOP and the rest of the tea party fascists cannot declare war on is Iran. We now have a deal! Contrary to Tehran John and the Cotton Club, we have stepped back from yet another republican war. Good work Obama, wish you were gonna be president for another 8 years.

  14. leslie 2015-04-02 17:31

    we need to hit thune, noem and rounds (while he’s still there) hard about Citizens United and election money transparency. All Dems support it, the large majority of national voters support it and ONLY the GOP stands against it.

    Time to put these three elected officials’ of SD FEET TO THE FIRE to explain why they as a trio disregard SD and national voters, and all dems, on the most significant issue of the new millennium, starting now with no let up until they realize they should embarrassed.

    and duffy, welcome to politics, glad you got a bone in the game.

  15. larry kurtz 2015-04-02 21:02

    This might be the straw that breaks the elephant’s back in southern Dakota, init?

  16. tara volesky 2015-04-02 21:32

    Did you check out the news conference with Shirley Schwab and Mark Black today?

  17. leslie 2015-04-02 23:01

    touching on jerry’s comment, “small minority of special interests and wealthy donors dominate spending on modern U.S. elections. A mere quarter of a percent of all Americans contributed 66% of the nearly $4 billion political candidates, parties and outside groups spent in the 2014 elections. All of this money shuts most Americans out of the debate and allows the voices and policy preferences of this elite few to overwhelm those of everyday Americans.” #getmoneyout

    14 people in America saw a $157 billion increase of their wealth in the last 24 months. Sen. Bernie Sanders (ME, I) quoting Forbes, the magazine for billionaires. they own as much as 90% of the nation.

    check out minute 14:00-17:00 in Thom Hartmann 4.2.15 video, to apply pressure on republican congress members:

    why are thune, noem, and rounds working for them?

  18. Les 2015-04-02 23:35

    Where is the news conference, Tara?

  19. Deb Geelsdottir 2015-04-02 23:44

    I’ve worked for a variety of businesses in social services in SD for about 30 years, ranging from corrections to disabled. Now I’ve done the same in MN for 6 years. In both states I had a great deal of interactions with local and state government workers. I found that there was a wide range of workers and motivations. My estimate is that about 25% or less were not worth a damn. The rest ranged from competent to excellent. None were intentionally cruel.

  20. Deb Geelsdottir 2015-04-02 23:53

    The difference between conservative, corrupt SD and liberal MN is glaring. SD covers up, lies, obsfucates, and avoids. Late last year the Strib ran a series of articles about a very poorly handled child abuse case. Immediately the state began thoroughly investigating that case and others. When the legislative session began in January bills were in the hopper to rectify the problems revealed.

    Folks, SD doesn’t have to be the way it is. I’m not bragging about MN. I’m trying to help motivate you and give you hope. After 50 years in SD, I left because I felt too ground down by these kinds of things, so I’m trying my best to offer encouragement and hope. It can be different. SD can become a good government state. Don’t give up.

  21. tara volesky 2015-04-03 03:56

    Les, the News Conference was at the downtown library in Sioux Falls. KELO, KSFY, SD Public Radio and the Argus Leader were all there. It should be online.

  22. Les 2015-04-03 07:36

    Thanks, Tara. It looks like between Madville/Dakota Free Press and Dakota Reporter rooting out some carrots the media may finally have to give the Mette adoptees, Shirley and Brandon some justice.

  23. jake kammerer 2015-04-03 07:56

    Troy et al. “Follow the $$$$” ! In our money-driven society, and esp. in ‘bizzness-friendly SD”
    these type of horror rending stories don’t ‘just happen.’ They are the result of government/bizzness corroboration or favoritism as to where gov’t dollars flow to in exchange for
    work/labor/favors done toward/for gov’t by receiver…. In other words, who were paid by the state for reception and ‘care’ of these children over a period of time for this state enforced slavery.

  24. jake kammerer 2015-04-03 08:08

    and, this Judge Davis ran for voter’s approval as the ‘man in white hat dressed in black?”

  25. tara volesky 2015-04-03 21:59

    John Hult from the Argus needs to do the right thing and try and get this story published or resign and go independent.

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