On November 4th, South Dakota’s Supreme Court struck down a standing order that barred all Oglala Lakota County residents from serving on juries. The court found that the 2009 standing order issued by Seventh District Court Judge Jeff Davis unnecessarily violated the civic rights of residents in that county.
“The circuit court’s ruling, effectively prohibiting the entire population of a South Dakota county from participating in their civic right to be a juror, is a structural defect we cannot allow,” declared Chief Justice David Gilbertson in the court’s unanimous ruling.
Oglala Lakota County has roughly 14,000 residents, approximately 96% of whom are Native American. For the past six years, none of them have been allowed to exercise their right to serve on a jury of their peers.
Justice Gilbertson went on to rule that Davis’ standing order to exclude the residents of a county from service far exceeded his authority as a circuit court Judge. Davis also failed to file this motion for approval with the South Dakota Supreme Court, as he was mandated to do.
The actions of Judge Davis are deplorable and fully consistent with his history of arbitrary and racially discriminatory judicial conduct.
In March of 2015, a federal court ruled against Judge Davis in the lawsuit Oglala Sioux Tribe v. Van Hunnik, brought by the ACLU that accused Davis, Pennington County Prosecutor Mark Vargo, State Director of the Department of Social Services (DSS) Lynne Valenti, and Pennington County DSS employee Luann Van Hunnik, of systematically violating the Indian Child Welfare Act of 1978, and due process clause of the 14th amendment of the Untied States Constitution.
Chief Judge Jeffrey L. Viken’s ruling found that, “An alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies, and that an alarmingly high percentage of these children are placed in non-Indian foster and adoptive homes and institutions.”
Davis often arranged custody hearings within 48 hours of removing a child from their family, before the parents could arrange adequate legal support. Typically, Davis would consider a case for less than five minutes, before ruling against the parents. Children removed were often kept in foster care for weeks and months before being reunited with their families.
Viken declared that, “Indian children, parents and tribes deserve better”, and ordered the state to: Provide parents with adequate notice prior to emergency removal hearings, allow parents to testify at those hearings and present evidence, appoint attorneys to assist parents in these removal proceedings, allow parents to cross-examine the state’s witnesses in the hearings, and require state courts to base their decisions on evidence presented during these hearings.
The ruling also found the conduct of Davis to be particularly damaging, because his colleagues often followed the policies he set on removing Indian children from their homes.
The recent ruling against Davis and that of Oglala Sioux Tribe v Van Hunnik are not isolated incidents of one disgruntled judge, but are representative of the system of discrimination and exclusion faced by the Lakota people in South Dakota. Both of these cases go beyond Davis, and accuse other judges, prosecutors and state DSS employees of racial bias and misconduct. They come at the same time as a federal lawsuit launched by the Department of Justice, which accuses South Dakota DSS of screening prospective employees by race.
Judge Viken is correct when he declares that American Indians in South Dakota deserve better than the systemic injustices that are currently perpetrated against them, at all levels of South Dakota state government and administration.