South Dakota Tribes Win Federal ICWA Case, Oglala Sioux v. Van Hunnik

The 45 page order granting partial summary judgment is HERE, with a judgment order granting injunctive and declaratory relief forthcoming in May.

The court finds that Judge Davis, States Attorney Vargo, Secretary Valenti and Ms. Van Hunnick developed and implemented policies and procedures for the removal of Indian children from their parents’ custody in violation of the mandates of the Indian Child Welfare Act and in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

The case directly addressed section 1922 emergency removal standard of evidence and return of the child; and due process claims at those emergency hearings (48-hour hearing) of notice, the right of parents to present evidence, to cross-examine witnesses, attorney representation, and a decision based on evidence at that hearing.

Among many other things, the judge addresses both the old and new Guidelines (which specifically mentioned this case):

A simple examination of these administrative materials should have convinced the defendants that their policies and procedures were not in conformity with ICWA § 1922, the DOI Guidelines or the Guidelines promulgated by the South Dakota Unified Judicial System. Indian children, parents and tribes deserve better.

The order grants summary judgment on  the ICWA violations AND the Due Process ones:

Judge Davis and the other defendants failed to protect Indian parents’ fundamental rights to a fair hearing by not allowing them to present evidence to contradict the State’s removal documents. The defendants failed by not allowing the parents to confront and cross-examine DSS witnesses. The defendants failed by using documents as a basis for the court’s decisions which were not provided to the parents and which were not received in evidence at the 48-hour hearings.

This is amazing–congratulations and many thanks to all involved. Especially to the families.

Previous coverage here. Summary judgment briefs and exhibits here.

8 thoughts on “South Dakota Tribes Win Federal ICWA Case, Oglala Sioux v. Van Hunnik

  1. Lara/Trace March 31, 2015 / 7:46 am


  2. Julie April 1, 2015 / 4:34 am

    About damn time!!!

  3. marilyn April 1, 2015 / 7:45 pm

    wish they helped here. all i hear from the icwa reps from so. dakota is :we concur: wow like come on now i thought you was supposed to help us. happy for them there.

  4. Judy Lujan April 2, 2015 / 8:42 am

    This is great news! Now if we can just get Oklahoma and Alaska to start following ICWA laws… Will there be any criminal charges leveled against these folks?

  5. Tina Wahweotten April 17, 2015 / 11:17 am

    We are having many problems in Holton Kansas (Jackson County) as well.

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