Indian Child Welfare Act

ACLU Announcement on Oglala Sioux Tribe v. Van Hunnik

Matthew L.M. Fletcher3 Comments

Here.

An excerpt:

Three Indian parents, the Oglala Sioux Tribe, and the Rosebud Sioux Tribe filed a class-action lawsuit to challenge the continued removal of Indian children in Pennington County, South Dakota from their homes based on insufficient evidence and without proper hearings, in violation of the Indian Child Welfare Act of 1978 and the constitutional right to due process.

Congress enacted ICWA to put in place federal safeguards for the removal of Indian children from their homes to both protect the interests of Indian children and give Indian tribes a voice in the process, because of an alarming number of Indian children who were removed from their homes and their tribes. Family separation can be particularly difficult for Indian children because not only are children separated from their parents, but because they are often placed with non-Indian families, they also experience separation from their culture.

When children are removed from their parents based on an allegation of neglect or abuse, a substantive hearing should normally be held in order to determine whether their children should continue to be separated from them. Instead, the lawsuit contends, Pennington County officials hold a cursory hearing in 48 hours that sometimes lasts no more than a minute, where all of the documents are kept a secret from the parents and they are not permitted to introduce any evidence, and their children are then removed for a minimum of 60 days and usually 90 days, according to the complaint. Most parents are also unfairly coerced by the court to “work with” the state Department of Social Services (DSS), which essentially authorizes the department to hold the children for at least two months under whatever terms DSS wants. DSS rarely seeks to assist the family.

The ACLU filed the lawsuit along with the ACLU of South Dakota and Dana Hanna of the Hanna Law Office in Rapid City. The lawsuit was filed on behalf of three parents in Pennington County, as well as the Oglala Sioux Tribe and the Rosebud Sioux Tribe, which are federally recognized Indian tribes with reservations in South Dakota.

Oglala Sioux Tribe v. Van Hunnik et al.: Class Action Suit to Force South Dakota Judges to Comply with Indian Child Welfare Act

Matthew L.M. Fletcher6 Comments

Here is the complaint, to be filed today:

OST1 Complaint with Exhibits 3 4 6

From the complaint:

Congress passed the Indian Child Welfare Act of 1978 (ICWA) in part because officials in South Dakota and other states were removing scores of Indian children from their homes based on insufficient evidence, and in perfunctory and inadequate hearings, in violation of federal law. Yet today, despite the added protections of ICWA, officials in Pennington County, South Dakota are removing scores of Indian children from their homes based on insufficient evidence, and in perfunctory and inadequate hearings, in violation of federal law.

Attached to this complaint as “Exhibit 1” is the transcript of one such Pennington  County hearing. This hearing, involving Plaintiff Madonna Pappan, her husband, and their two children, lasted little more than sixty seconds. The court did not permit the Pappans to see the petition that had been filed against them by state officials. When Mr. Pappan asked what he was permitted to discuss, the court changed the subject and, a few seconds later, terminated the hearing. The court immediately entered an order (attached as “Exhibit 2”) which found that “active efforts have been made to provide remedial services and rehabilitative programs” to the Pappans, and that taking the Pappan children away from their parents “is the least restrictive alternative available,” even though no evidence was introduced during the hearing on those issues. The order stripped the Pappans of custody over their children for at least sixty days and gave that custody to the officials who had filed the secret petition. As discussed below, Plaintiffs Rochelle Walking Eagle and Lisa Young, like many other Indian parents in Pennington County, were treated similarly during their hearings, and their children were removed from their custody. This lawsuit seeks a speedy end to such a disgraceful process.

Opening Briefs in Baby Veronica Case

Matthew L.M. Fletcher2 Comments

Here (thanks to NARF/NILL):

Opening Brief for Petitioners Adoptive Couple

Opening Brief for Respondent GAL Supporting Reversal

NPR: South Dakota Tribal ICW Directors’ Studies on State’s Incredible Lack of Compliance with the Indian Child Welfare Act

Matthew L.M. Fletcher1 Comment

Here, via Pechanga.

An excerpt:

South Dakota’s Indian Child Welfare Act (ICWA) directors have issued two reports to Congress: “Reviewing the Facts: An Assessment of the Accuracy of NPR’s ‘Native Foster Care – Lost Children, Shattered Families,’” and “Is South Dakota Over-Prescribing Drugs to Native American Foster Kids?” The first of these reports cites evidence that South Dakota’s Department of Social Services (DSS) is placing 87% of Indian children into non-Indian homes or group care, even while anywhere from 20-43% of licensed Native American foster homes in the state sit empty. This, according to the authors of the report, is in clear violation of the federal ICWA law which requires states to keep Native foster children with their extended families and tribes whenever possible. The study also affirms NPR’s assessment that the state’s ICWA violations are partly motivated by the tens of millions of federal dollars that South Dakota receives for placements of Native children each year.

NYTs on Lack of Indian Foster Families

Matthew L.M. Fletcher

Here.

NYTs Room for Debate on Baby Veronica Case

Matthew L.M. Fletcher1 Comment

Here.

The debaters:

Kevin Noble Maillard

Terry Cross

Solangel Maldonado

Matthew L.M. Fletcher

Joan Hollinger

Marcia Zug

Megan Lindsey

National Council of Juvenile and Family Court Judges Bulletin to Improve Compliance with ICWA

Adrea Korthase1 Comment

Here

NYTs (Liptak) on SCT Cert Petition involving Cherokee ICWA Case

Matthew L.M. Fletcher1 Comment

Here.

Birth Father/Cherokee Nation Cert Opposition Brief in Adoptive Couple v. Baby Girl

Matthew L.M. Fletcher

Here:

Cherokee Cert Opp

Guardian ad Litem Brief in Support of Cert Petition in Adoptive Couple v. Baby Girl

Matthew L.M. Fletcher1 Comment

Here:

GAL Brief in Support of Petition

A direct challenge to the constitutionality of the Indian Child Welfare Act, filed by Paul Clement. No circuit split, no split of authority in the state courts, arguments never raised below — an emotional plea to an unemotional Court.