Huge Development in South Dakota ICWA case

On Thursday, Craig Pfeifle replaced South Dakota Seventh Circuit Judge Jeff Davis as the circuit’s presiding judge, after Davis and other members of the South Dakota court system were found to have systematically denied Indian parents their rights under both ICWA and the U.S. Constitution.

In a March hearing, U.S. District Judge Jeffrey Viken found that Davis, along with Pennington County State’s Attorney Mark Vargo and two of the state’s top Department of Social Services officials, failed to honor the rights of Native American parents under the Indian Child Welfare Act.

The decision was a landmark moment for the Lakota People’s Law Project and yet another among many validations of our claim that South Dakota has been flagrantly and willfully violating the important federal law for more than a decade.

Davis was found to be enacting policies which prevented parents from testifying, and obtaining aid from court appointed lawyers at preliminary 48-hour hearings–proceedings held within 48 hours of a child’s removal from his or her home in order to determine temporary custody. For these trials to take place it must be proven that children are in immediate danger, yet a majority of these cases failed to demonstrate this. The children were removed anyway.

“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,” reads the Introduction to the summary judgment.

The 2013 lawsuit, filed by the Rosebud Sioux tribe, Oglala Sioux tribe, and three Native parents, was ruled in favor of the plaintiffs in March. Viken found that the defendants directly violated ICWA and due process of law according to the 14th amendment. He took the Natives’ side on six of seven issues–the seventh being an assertion that Davis acted as a final policymaker in 7th circuit courtrooms.

Davis and his fellow defendants filed for reconsideration of the ruling. He countered saying there are multiple ways that parents can appeal these temporary-custody decisions to the state Supreme Court, so a single judge cannot be accused of final policy making. Additionally, he also accused Viken of factual errors in a desperate attempt for validation.

Despite Davis’ resistance, the outcome is a victory for the Lakota people. Legal attention to ICWA violations are a needed push towards solving the issue of racist state actors seizing Indian children, often to benefit the bottom lines of both private and public institutions in South Dakota.

Though Judge Davis’ replacement hasn’t been formally linked to specific reasoning, this move reinforces the message rendered by Viken’s ruling.

Judge Pfeifle has an opportunity to set a new precedent for honorable relations between South Dakota courts and Native people. LPLP and others will be vigilant in ensuring this happens.

The Lakota People’s Law Project focuses on the injustices Natives are subjected to when ICWA is violated. While the result of the trial is encouraging, let no one confuse the outcome with a permanent solution for the Lakota still suffering under the weight of a ruthlessly racist system.

The punishment only applies to four state employees in South Dakota, where the entire system is constructed to deprive Indians of their federal rights.

More must be done to not only reveal the problems,  but help formulate enduring solutions.