Final ruling expected on Indian Child Welfare Case Aug. 17
By Ernestine Chasing Hawk
Native Sun News Editor
RAPID CITY –– For those who’ve lost their Indian children to a system that steals their identity, culture and connection to their families of origin, a ruling expected next week on the Indian Child Welfare Act can be a Godsend.
On Aug. 17, at 9 a.m. a South Dakota Indian Child Welfare case involving the first 48 hours after an Indian child is taken into custody by the S.D. Department of Social Services will be heard in the Federal Courthouse before Chief U.S. District Judge Jeffery Viken.
The case, OST et. al vs Van Hunnik et. al., filed three years ago by ACLU attorneys Dana Hanna and Stephen Pevar on behalf of the Oglala and Rosebud Sioux Tribes and all Indian parents in Pennington County, alleged South Dakota Department of Social Services, Judge Jeff Davis and States Attorney Mark Vargo regularly violated Constitutional Rights of Indian parents and provision 1922 of the Indian Child Welfare Act during the “show cause” hearing.
In March 2015, 7th Circuit Court Judge Viken ruled in favor of Indian plaintiffs and ruled that the practices and procedures of the State Court, the States Attorney and the Department of Social Services regularly violated Constitutional and ICWA rights of Indian parents in seven specific ways.
“At the hearing on Aug. 17, Judge Viken will hear arguments from the lawyers and testimony from witnesses concerning the relief that he will order for the state defendant’s violations of the Indian plaintiffs Constitutional and ICWA rights,” Hanna said.
According to Hanna, in the past year and a half defendants have done next to nothing in response to that order. At the hearing, Indian plaintiffs will ask the court to order that a federal monitor observe the “show cause” hearings and report back to the Federal judge to ensure that state defendants desist from their unconstitutional practices.
“He is going to enter an injunction and that will order the defendants specifically as to what they have to stop doing and specifically what they have to start doing in temporary custody hearings involving Indian children in which the state is claiming abuse and neglect,” Hanna said.
One of the most significant rulings that the Judge is expected to order at the August 17 hearing will be that Indian parents be provided appointed attorneys to represent them at the 48 hour hearings.
“The state is going to have to present live witnesses to prove that return of custody will likely result in physical harm to the child. The Indian parents through their attorneys will have the right to cross examine witnesses and contest the states petition to place the children in foster care,” Hanna continued. “What in essence has been going on for years is the state would order Indian children into foster care, giving custody to the Department of Social Services after a brief informal hearing in which Indian parents were not allowed to either present testimony or cross examine testimony.”
The hearing on August 17 is an open hearing and any interested persons can attend.
(Contact Ernestine Chasing Hawk at This email address is being protected from spambots. You need JavaScript enabled to view it.)