RAPID CITY, S.D. (CN) - A South Dakota judge's five-minute hearings that remove Native American children from their homes violate the Indian Child Welfare Act, a federal judge ruled.
The Oglala Sioux and Rosebud Sioux tribes and two Sioux parents sued the presiding judge of South Dakota's 7th Circuit, the district attorney of Pennington County, the Secretary of the South Dakota Department of Social Services, and the person in charge of Social Services' Child Protection Services in Pennington County.
U.S. District Judge Jeffrey Viken on Monday directed most of his judicial wrath at Pennington County Circuit Court Judge Jeff Davis, presiding judge of South Dakota's 7th Circuit.
But Viken's 45-page opinion does not spare Pennington County States Attorney Mark Vargo, Social Services Secretary Lynne Valenti, or Pennington County CPS boss LuAnn Van Hunnik.
"Judge Davis typically conducts hearings within 48 hours of an Indian child's removal from the parents' care. The hearings usually last less than five minutes. The removed Indian children often spend weeks or months in foster care away from their parents, Indian custodians and tribes," Viken wrote.
He said that Judge Davis's colleagues on the 7th Judicial Circuit follow his policies and procedures to remove Indian children from their homes.
The hearings proceed without parents ever seeing the Indian Child Welfare Act petition or the supporting affidavit filed against them, Viken found.
He said Davis also denies parents the chance to cross-examine the affidavit's signer or to present evidence.
Children are often removed from the home with little or no efforts to keep the family together, and without expert testimony about whether continued custody by the Indian parent or guardian is likely to physically or emotionally endanger the child, Viken wrote.
He found that Davis's policies have allowed him to efficiently "rubber stamp" the removal of hundreds of Indian children.
"In 100 percent of the 48-hour hearings conducted by Judge Davis from January 2010 to July 2014, he granted motions by the State's Attorney and DSS for continued custody of all Indian children involved," the ruling states.
Davis also illegally grants authority to Dakota Social Services to determine when the "imminent threat" to an Indian child's safety had passed, and when or if to return him or her home, Viken said.
"This abdication of judicial authority is contrary to the protections guaranteed Indian parents, children and tribes under ICWA." Viken wrote. "The court cannot delegate the authority to make the custody decision to a state agency or its employees."
Davis claims that his hearings are "emergency" proceedings that are exempt from ICWA requirements, and that the ICWA does not need to be invoked until full custody proceedings take place.
Viken disagrees, citing the contradiction between Davis' process and the Department of the Interior's guidelines for Indian child custody proceedings and South Dakota's guidelines for neglect and abuse cases.
"The DOI Guidelines and the SD Guidelines were publicly available to the Seventh Circuit judges, including Judge Davis, and to the other defendants," Viken wrote. "A simple examination of these administrative materials should have convinced the defendants that their policies and procedures were not in conformity ..."
He ordered the defendants to allow Indian parents to meet with an attorney and review relevant documents, even if it delays the proceedings by a few hours or even a day. "This process undoubtedly will require additional time and more county and judicial resources," Viken wrote, "but these concerns are not adequate to forgo rights mandated by ICWA and fundamental due process."
Congress enacted the Indian Child Welfare Act in 1978 in response to high numbers of Indian children being placed in foster care and adoption away from their tribal roots.
"Judge Davis and the other defendants failed to protect Indian parents' fundamental rights to a fair hearing," Viken concludes. "Indian children, parents and tribes deserve better."
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