A lawyer representing two American Indian tribes urged a federal appeals court Tuesday to keep in place the changes a judge ordered for a South Dakota county’s system of removing children from homes in endangerment cases.
Stephen Pevar, a tribal law specialist with the American Civil Liberties Union, told the 8th U.S. Circuit Court of Appeals before those protections were imposed, the system was stacked against tribal families. From 2010-13, the state was granted custody of all 823 Indian children it sought to remove from homes in Pennington County.
“The state won 100 percent of the proceedings,” said Pevar, who is representing the Oglala and Rosebud Sioux tribes in the case. “It would have been a miracle if these parents had prevailed because they were denied elementary due process.”
The tribes sued the county in 2013, saying its procedures for conducting initial hearings in such cases violated the federal Indian Child Welfare Act. The tribes argued parents were denied basic due process protections in these informal hearings, including the right to a court-appointed attorney and to see and challenge the allegations against them.
The chief U.S. district judge for South Dakota, Jeffrey Viken, sided with the tribes in three rulings in 2015 and 2016. He ordered changes to give parents more rights at those initial hearings, which are required to be held within 48 hours of a child’s removal from the home to decide whether the child should be returned to the home or be placed in the custody of the state Department of Social Services. Parents previously weren’t guaranteed legal protections until a later stage in the process. The county, which includes Rapid City, is now abiding by the judge’s orders.
While the case applies most directly to Pennington County, the case has attracted attention elsewhere in Indian Country. The Cherokee Nation and Navajo Nation, the two largest tribes in the U.S., and other tribal groups filed a friend-of-the-court brief that said this lawsuit is vital to ensuring courts follow the Indian Child Welfare Act, which was enacted in 1978 in response to widespread abuses by state child welfare systems against Indian children and families.
The law sets standards for removing Indian children from their families, terminating parental rights and placing them in foster or adoptive homes. The brief says other states in the 8th Circuit have statutes or procedures in place to ensure those standards are met.
Lawyers for Pennington County State’s Attorney Mark Vargo and other officials named in the case argued the lower court did not follow proper legal procedures, so its decisions should be overturned. Much of their appeal turns on complex legal arguments over whether the state’s attorney or the presiding judge in the southwest corner of the state counted as policy-makers responsible for the old procedures who could legally be sued over them.
Parents did get full legal protections later in the process well before their parental rights could be terminated, said attorney Jeff Hurd, who represents Craig Pfeifle the presiding judge for the South Dakota judicial circuit which includes Pennington County.
The appeals court took the case under advisement. Chief Judge Lavenski Smith called it “a very difficult case” and said the panel would rule as soon as possible, but didn’t specify when.