Press "Enter" to skip to content

Judge Viken Rules Lakota-ACLU Suit Against DSS over Child Removal May Proceed

On Tuesday, Judge Jeffrey Viken ruled in favor of the Oglala and Rosebud Sioux Tribes and three individual Lakota plaintiffs fighting the state of South Dakota's practice of taking Indian children from their parents:

"We are thrilled that the court has recognized the importance of these issues to Indian parents and Indian tribes," said Heather Smith, executive director of the American Civil Liberties Union of South Dakota.

The plaintiffs claim some child custody hearings are barely 60 seconds long. Parents are not allowed to see the petition used to take their children, nor are they given a chance to introduce evidence that they can take care of their children, all of which they say violates the Indian Child Welfare Act (ICWA) and their Fourteenth Amendment right to due process.

"We shouldn't forget that it's all about due process," Hanna said. "The state's going to give you a fair hearing before they take your kids" [Andrea J. Cook, "Native American Child Custody Lawsuit Advances," Rapid City Journal, 2014.01.30].

The defendants—South Dakota Social Services Secretary Kim Malsam-Rysdon and employee LuAnn Van Hunnik, Pennington County State's Attorney Mark A. Vargo and 7th Circuit Judge Jeff Davis—wanted Judge Viken to dismiss the suit for several reasons. Among other arguments, the defendants contended that the tribes lacked standing in this suit because tribes are not "persons" under the Indian Child Welfare Act, suffer no redressable injury, and are acting in the interest of only those tribal members with children rather than "all" members of the tribe.

(Hmm... if I were the state of South Dakota or any official thereof, I really wouldn't want to go on the record declaring that the tribes aren't people. But let's not get bogged down in wordplay.)

Judge Viken upheld the tribes' standing to challenge South Dakota's ICWA's non-compliance:

The purpose of ICWA, as declared by Congress, is to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . .” 25 U.S.C. § 1902. Congress specifically found “that there is no resource that is more vital to the continued existence and integrity of the Indian tribes than their children . . . .” 25 U.S.C. § 1901(3) [Judge Jeffrey Viken, ruling, Oglala, Rosebud, et al. vs. Hunnik et al., 2014.01.28].

Judge Viken's ruling is significant because it allows the tribes, the ACLU, and aggrieved Lakota parents as a class to continue pressing a case that addresses one of the core questions raised in reporting by NPR's Laura Sullivan: is South Dakota waging war against American Indian tribes by tearing their families apart, in violation of the Indian Child Welfare Act? The answer to that question has enormous bearing on the fight for justice and equality for our Lakota neighbors. It may also have enormous bearing on the officials who have overseen South Dakota's actions under ICWA and who face re-election this fall.


  1. interested party 2014.01.31

    Setting up the dominoes can be agonizing but it's hardest deciding who gets to trip them and when.

    Uzani, his army.

  2. interested party 2014.01.31

    How much of Mike Rounds' campaign money can go to his defense against this lawsuit?

  3. Roger Cornelius 2014.01.31

    This ruling is good news for tribes and tribal members.

    Hopefully by advancing the lawsuit will reveal some of the secrecy behind DSS and the state of South Dakota.

    The business of for-profit Indian foster care scheme must end.

    The tribes not being people is silly, the tribe, the parents, extended family are people, real people.

    If Republicans can call corporations people, surely tribes can be people too.

  4. Douglas Wiken 2014.01.31

    South Dakota should just wash their hands of this and let the sovereign tribes take care of their own child abuse.

  5. interested party 2014.01.31

    Shut up, Doug.

  6. interested party 2014.01.31

    Imagine a tribal authority going into Winner and seizing a white child to place with a Native family.

  7. Roger Cornelius 2014.01.31


    Wiken is finally catching on. Amen

  8. Anne Beal 2014.01.31

    I would be interested in hearing the particulars of each case, starting with how the state got involved on tribal land, because that's a jurisdictional issue. Did the tribal police call them in? Did the tribal court call them in? I suspect what really happened is somebody with authority called them to come pick up these kids. Unless the tribes want to organize their own foster care system or orphanages they have to have some procedure when children are at risk. What is that procedure?

  9. Taunia 2014.02.01

    I think it's a really great thing for Cory to educate people on so many different topics.

    Take Anne, for example. She has all these questions and Cory's given links to all of them. He has done her homework. She would need to pay for this education elsewhere. She should tip his jar.

    Bless her heart.

  10. Joel R 2014.02.01

    Regarding the families that have brought the lawsuit mentioned in this post, it appears that they are enrolled tribal members living in Pennington County, i.e. off the reservation. So they would fall under the jurisdiction of the State. At least that's my understanding.

  11. Roger Cornelius 2014.02.01

    That is precisely the point of ICWA, to protect the custody of Native children on and off the reservation.

  12. Douglas Wiken 2014.02.01

    Imagine a tribal authority going into Winner and seizing a white child to place with a Native family. lk

    Would not bother me depending on the White family and the Native family. There are some hard-working Natives here and some totally worthless drunken white trash as well.

  13. Joel R 2014.02.01

    I absolutely agree. When Anne asked that question, I was under the impression that she was asking: "who gave the state the authority to go onto the reservation and take these children out of the custody of their parents?" I wondered that too, so I looked up the complaint online. At least in this case, the children appear to have been taken from parents who reside off the reservation. But, as you say, ICWA still applies (as it should).

    As for the claims that children have been taken from homes on the reservation, I'm not sure the state has that authority. If they do, it would have to granted to them by statute from the feds or through some agreement with the tribe. I'm unaware of such a grant of authority, but we are reaching the limits of my understanding of Federal Indian Law at this point.

  14. Joel R 2014.02.01

    Please insert "have been" between "to" and "granted" above. Thanks, joel.

  15. Roger Cornelius 2014.02.01


    In cases on the reservation of child abuse the cases where physical abuse or death result, federal and tribal jurisdiction would apply.

    The state and tribes join together in "compacts" where each party accepts various forms of jurisdiction, these would include gaming compacts, tax revenue, etc.

    South Dakota Social Services operates on reservations and practices some questionable uses of placing children off the reservation, when that occurs the ICWA is still enforced, or should be, that is part of the problem.

  16. Taunia 2014.02.01

    Holy crap. Does anyone read the links Cory puts in these posts?!

    Under "one of the core questions raised in reporting by NPR's Laura Sullivan" link - the BLUE link? This:

    "For years now, council members of the Crow Creek Sioux Tribe in South Dakota have watched as the state's Department of Social Services removed children from the reservation and placed many of them in white foster homes, far from tribal lands. Many of the children were later adopted, losing their connection to their families and heritage."

    Read on.

  17. Douglas Wiken 2014.02.01

    Most of that original NPR story has been discredited by NPR since originally broadcast.

  18. Roger Cornelius 2014.02.01

    If the NPR report has been discredited, does that mean Native American children are not placed in white foster homes without regard for the law of ICWA?

  19. interested party 2014.02.01

    Crimes have been committed, please wait for the dominoes to be herded into place, people.

  20. interested party 2014.02.01

    None of you know, do you?

  21. interested party 2014.02.01

    Uzani, his army at Lashmir.

  22. mike from iowa 2014.02.02

    A friend of mine from the found this for me. She knows,from decades of dealing with Native American claims in Alaska, way more than any book can teach you.

  23. interested party 2014.02.03

    My point stands, Doug:

    "Through more than 150 interviews with state and federal officials, tribal representatives and families from eight South Dakota tribes, plus a review of thousands of records, Sullivan and NPR producers pieced together a narrative of inequality in the foster care system across the state. In addition to her third Peabody, the series also won Sullivan her second Robert F. Kennedy Award."

  24. interested party 2014.02.03

    Take on Pierre, Doug: that's what you're best at. Help me drown out the noise from the war toilet.

Comments are closed.