ICWA: Federal judge to issue order fixing '48-hour hearings'

RAPID CITY JOURNAL

Three years after Native American families filed a lawsuit against state officials over the handling of cases involving their children, the end of a phase was imminent Wednesday as lawyers from both sides made final arguments in Rapid City federal court.

Attorneys for the plaintiffs said the Seventh Circuit Court, state Department of Social Services and Pennington County State’s Attorney’s Office have made no fundamental changes in Native American children’s temporary custody hearings despite a federal judge’s findings in March of 2015.

Chief Judge Jeffrey Viken, of the South Dakota District Court, at the time found that local court procedures violated Native people’s rights. This included not advising parents they had a right to contest the state’s petition for temporary custody and not requiring the state to present sworn testimony from a live witness.

Viken had asked the defendants to offer recommendations on how the emergency removal hearings, or "48-hour hearings," can be fixed. The judge wanted to use this as a guide for an order he will be issuing, but on Wednesday said he has not received any recommendations.

Defense lawyers for the Seventh Circuit Court and State’s Attorney’s Office told Viken their clients have already instituted changes since his 2015 findings. The DSS’s attorney, meanwhile, said the department has always respected Native rights in the removal process.

Among the issues Viken is expected to address in his forthcoming order is whether the federal court will appoint a monitor to watch over the custody hearings, as requested by the plaintiffs. Viken did not say when his order will be released.

An issue that will be taken up in future hearings is the plaintiffs’ claim that the DSS has failed to train its workers on the requirements of the Indian Child Welfare Act.

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VIDEO
RAPID CITY, S.D. (KOTA TV) - U.S. District Court Judge Jeffrey Viken expressed dismay Wednesday that he has received no help from Pennington County officials drafting a court order to address shortcomings he identified in certain proceedings involving Native American children.

Plaintiff's attorney Stephen Pevar.

Seventeen months ago Judge Viken found that Indians were denied protections guaranteed under the constitution -- and the Indian Child Welfare Act – in certain hearings.

The proceedings, known as "48 hour hearings" are held to determine if the state has the right to temporary child custody.
In a suit brought by the Oglala Sioux and Rosebud Sioux Tribes, Viken found, among other things, that Native American parents were denied the right to representation by an attorney and are not afforded the chance to cross examine Department of Social Services staffers recommending the taking of their child.
Today the courts have so far not adhered to the bulk of Viken's interpretations -- nor changed much of the way they handle 48 hour hearings.
Plaintiff's attorneys called Pennington County States Attorney Mark Vargo to the stand and asked why he hadn't complied.

Vargo also said he felt his office was complying with the Indian Child Welfare Act. He said that Viken had not issued a formal ruling directing him to change procedures and that if the judge did, he would comply.
“The only issue in today's hearing was what remedies should just federal court issue in order to get the defendants to stop violating the rights of the plaintiffs,” said plaintiff attorney Stephen Pevar. “In a previous ruling he had found that the defendants were violating federal rights in seven different respects.”
Viken repeatedly said on Wednesday that he wanted the defendants, which includes the Department of Social Services, to suggest remedies. He said it was difficult for federal judges to craft write these without guidance.
But he was very clear. He said he is going to issue rules that the courts and the D.S.S. will have to follow.
He also said from the bench that it was not unlikely that this case, involving overlapping responsibilities of state and federal courts, is headed for appeal.