By LACEY LOUWAGIE
RAPID CITY, S.D. (CN) – Nineteen months after a federal judge delivered a stinging rebuke to a South Dakota state judge and social service officials in Pennington County for disregarding the Indian Child Welfare Act in the removal of Indian children from their homes, the county continues to disregard the law.
In the spring of 2015, U.S. District Judge Jeffrey Viken blasted Pennington County Circuit Court Judge Jeff Davis, presiding judge of South Dakota’s Seventh Circuit, for his “five-minute” hearings that removed Native American children from their homes without giving parents the chance to cross-examine witnesses, view the accusations against them or consult with an attorney – all rights guaranteed under due process and the Indian Child Welfare Act.
The Oglala Sioux Tribe and the Rosebud Sioux Tribe, along with individual Indian parents, pressed the federal judge for further action as Pennington County remained out of compliance with ICWA over a year later.
On Thursday, Viken issued a new order enjoining officials to comply with his earlier ruling.
“The defendants continue to disregard this court’s March 30, 2015, partial summary judgment order,” Viken writes in his introduction. “That order outlined the defendants’ violations of the rights of Indian children, parents, custodians and tribes guaranteed by the Due Process Clause of the Fourteenth Amendment and by the Indian Child Welfare Act.… The court repeatedly invited the defendants to propose a plan for compliance with their constitutional and statutory obligations but the defendants rejected that opportunity.”
Because the new order is an injunction against the ongoing violations, it holds greater weight than the initial order, according to the tribes’ attorney, Stephen Pevar.
“If they disobey it, they could be found in contempt,” Pevar said in a phone call. “Once an official is found in contempt, he or she can be fined or even imprisoned. Judge Viken is clearly concerned and upset with these ongoing violations, and he intends to do something about them and stop them. This truly is a wonderful decision, and hopefully it will cause the defendants to stop engaging in violations that have been going on for many years, and that these officials have known about.”
Pevar is with the ACLU Foundation out of Hartford, Connecticut.
In the hot seat this round are the current presiding judge of the Seventh Circuit, Judge Craig Pfeifle, Pennington County Child Protection Services head Lisa Fleming, Pennington County State’s Attorney Mark Vargo and Secretary of the South Dakota Department of Social Services, Lynne Valenti.
During hearings held in August, witnesses from child protection services and the state’s department of social services admitted that no new training had been offered to implement Viken’s earlier order for compliance.
Pennington County officials are still not providing Indian parents and custodians with affidavits of the accusations against them prior to hearings, police reports that the judge reviews in making his decision, or attorneys to represent their interests. Indian parents also are not given the chance to cross-examine witnesses or offer testimony in their defense at removal hearings, which are rushed through the court schedule at approximately five per hour, twice a week, according to Viken’s 27-page order.
A witness from the state’s attorney’s office told Judge Viken that Pennington County hears about 100 cases involving Indian children each year, which is among the highest in the state.
Although Judge Pfeifle says he no longer handles child abuse and neglect cases, Viken didn’t let him off the hook. “The due process rights and ICWA rights of Indian children, parents, custodians and tribes cannot be left to the personal preferences of each circuit court judge,” he wrote. “It is Presiding Judge Pfeifle’s obligation to appoint to abuse and neglect cases only those Seventh Circuit Judges who will honor the due process rights and the ICWA rights of Indian children, parents, custodians and tribes.”
“The defendants were violating plaintiffs’ ICWA rights and their rights under the Due Process Clause at the time of the 2015 order,” Viken added. “They continue to do so today. The court has no assurance anything will change in the future without the court’s intervention.”
Viken entered a permanent injunction enjoining all the defendants except Judge Pfeifle to comply fully with ICWA in future removal proceedings involving Indian children.
He declined the tribes’ request that he appoint a monitor to supervise the county officials, stating that it was “premature” as he expects compliance with the new ruling.
The defendants’ attorney, Bob Morris of Morris Law Firm in Belle Fourche, South Dakota, declined to comment on the ruling.