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ICWA Progress Halted By 8th Circuit




RAPID CITY – The State of South Dakota has won a temporary victory in its effort to deny Lakota families their right to due process during emergency 48-hour custody hearings involving Native American children.

On Friday, the 8th Circuit Court of Appeals ruled that two earlier lower court decisions lacked the jurisdiction to force a State to comply with federal law.

In 2013, the Oglala Sioux Tribe and the Rosebud Sioux Tribe sued the State of South Dakota, and specifically Pennington County, alleging that the state’s courts had institutionalized violations of the Indian Child Welfare Act and the rights to due process of Native American families during an abuse and neglect hearing through policy and practice. Since then, a number of other tribal-nations have joined a legal brief in support.

During an abuse and neglect case there are four primary stages that take place. The initial stage takes place when social services, the police, or some other agent of the government removes a child from their home under the suspicion of neglect. After the removal the next step of the process is a hearing must take place to determine whether the child is in immediate danger and needs to remain in the custody of the state. The third stage involves a trial to determine if neglect has taken place, and the final stage involves the placement of a child in a foster home for an undetermined amount of time. The lawsuit challenges the second step.

In 2016, a judge ruled in favor of the plaintiffs in In Oglala Sioux Tribe v. Van Hunnik. The plaintiffs presented evidence that showed that during these hearings Native American parents often were not allowed to speak on their behalf, view evidence gathered against them, or even hear why their children were removed from their homes. Some of these hearing lasted less than five minutes. The Indian Child Welfare Act requires that cases involving Native American children be handled differently and in coordination with their tribal-nation.

South Dakota has fought to prevent the implementation of policies that would allow Native American families their due process under the Indian Child Welfare Act and the United States Constitution.

Lawyers for the tribes say they have asked the court to reconsider but are prepared to take the case to the United States Supreme court.

(Contact Brandon Ecoffey at ecoffeyb@gmail.com)

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