The most important trial related to the Indian Child Welfare Act since the Baby Veronica case continues in a federal court in Rapid City, South Dakota.
The case, Oglala Sioux Tribe v Van Hunnik, is a class action lawsuit involving two Lakota tribes and three Indian parents who say Indian children are continually removed from Indian homes by the state based on insufficient evidence and without proper due process.
While the legal questions in the case are narrow the implications of the case are huge.
This is evidenced by the fact that the United States Department of Justice filed amicus briefs — which describes when a third party files in the case to provide information it believes merits consideration during adjudication.
In this particular case, the DOJ filed briefs that asserted that the South Dakota’s stated reasons for failing to abide by certain provisions of ICWA was faulty and came down firmly on the side of the tribes in their ongoing battle against states.
The latest development in the watershed case came when Stephen Pevar, the ACLU attorney that is arguing on behalf of the plaintiffs, requested access to communications between 7th Circuit Judge Jeff Davis and other judges.
Pevar wants to see if Davis colluded with other judges in establishing the approach to Indian custody cases.
“Our burden is to prove these are more than random acts,” Pevar told the Rapid City Journal. “We need to know to the extent (Davis) is a policy-maker and to what extent he is involved.”
The presiding judge in the OST v Van Hunnik case, Chief U.S. District Judge Jeff Viken has yet to issue a ruling about whether Davis’ communiques will be subject to court review, but is expected to make a decision by March.
The plaintiffs say Davis and other judges make decisions to quickly, do not give Indian parents the opportunity to view documents containing allegations against them and do not afford them the opportunity to prove they are fit parents.
Furthermore, the ACLU alleges most parents are coerced into cooperating with the Department of Social Services, which allows the DSS to hold children for 60 days under terms of their choosing, often excluding family members from visiting the children.
The DOJ amicus briefs were filed before Holder recently announced his department would “redouble their efforts” to enforce ICWA.
Holder told NPR’s Laura Sullivan the agency will hire more attorneys and work with other federal agencies “to protect Indian children from being illegally moved from their families,” which he said was done sometimes “by those acting in bad faith.”
Sullivan is the reporter who worked in close concert with the Lakota People’s Law Project to uncover the rampant abuse of ICWA in South Dakota, penning an in-depth investigative report in 2011 that found South Dakota Native American children were being removed at alarmingly high rates and being placed in non-Native homes, despite ICWA.
Sullivan also said the DOJ’s amicus brief filing in the OST v Van Hunnik case is the first time in the history of the nation that the highest law enforcement agency in the land intervened in a federal court case in South Dakota.