A federal judge recently made a landmark ruling that will significantly impact the way South Dakota state officials handle Native American child-custody cases.
According to Indian Country Today, Chief United States District Judge Jeffrey Viken ruled that state officials violated numerous provisions of the Indian Child Welfare Act (ICWA) and violated Native American parents’ rights under the Due Process Clause of the Constitution. Judge Viken referenced “widespread and systemic failure” to protect the integrity of Native American families in his ruling.
South Dakota’s Department of Social Services was discovered to have been forcibly removing more than 740 Native American children from their homes annually, overwhelmingly placing them in white foster homes. Little to no efforts were made to keep families together, and the state would often refrain from seeking expert testimony on whether the Indian parent or guardian is likely to physically or emotionally endanger his or her child.
Additionally, officials had been denying Indian parents and guardians their right to a fair hearing, according to PeoplesWorld.com. In most cases, parents were denied the right to even speak in custody hearings, and were not permitted to see the Indian Child Welfare Act petition or the supporting affidavit filed against their ability to parent.
Before the ICWA’s passing, anywhere from 25 – 35% of Native American children were removed from their families and placed with non-Indian foster families, from which they never returned. The law, passed in 1978, was Congress’s effort to end “institutionalized anti-Indian racism” present in state custody courts. Many South Dakota judges would openly state in court that they would not recognize the ICWA in their jurisdictions.
This is the first time the U.S. Department of Justice has intervened in a federal court case that involved the ICWA, making Oglala Sioux Tribe v. Luann Van Hunnik a truly historic case. Experts indicate that this case’s outcome will likely have repercussions nationwide, not just in South Dakota.
“Judge Viken’s powerful ruling is important, not just for tribal members in South Dakota but for Native people everywhere,” Barbara Atwood, the Mary Anne Richey Professor Emerita of Law and director of the Family and Juvenile Certificate Program at the University of Arizona School of Law, said. “The decision shines a light on [the] apparently rampant abuses of the emergency removal provision under the Indian Child Welfare Act.”