Federal judge to issue new rules for local courts on ICWA cases

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RAPID CITY, S.D. (KOTA TV) - U.S. District Court Judge Jeffrey Viken expressed dismay Wednesday that he has received no help from Pennington County officials drafting a court order to address shortcomings he identified in certain proceedings involving Native American children.

Plaintiff's attorney Stephen Pevar.

Seventeen months ago Judge Viken found that Indians were denied protections guaranteed under the constitution -- and the Indian Child Welfare Act – in certain hearings.

The proceedings, known as "48 hour hearings" are held to determine if the state has the right to temporary child custody.

In a suit brought by the Oglala Sioux and Rosebud Sioux Tribes, Viken found, among other things, that Native American parents were denied the right to representation by an attorney and are not afforded the chance to cross examine Department of Social Services staffers recommending the taking of their child.

Today the courts have so far not adhered to the bulk of Viken's interpretations -- nor changed much of the way they handle 48 hour hearings.

Plaintiff's attorneys called Pennington County States Attorney Mark Vargo to the stand and asked why he hadn't complied.

Vargo also said he felt his office was complying with the Indian Child Welfare Act. He said that Viken had not issued a formal ruling directing him to change procedures and that if the judge did, he would comply.

“The only issue in today's hearing was what remedies should just federal court issue in order to get the defendants to stop violating the rights of the plaintiffs,” said plaintiff attorney Stephen Pevar. “In a previous ruling he had found that the defendants were violating federal rights in seven different respects.”

Viken repeatedly said on Wednesday that he wanted the defendants, which includes the Department of Social Services, to suggest remedies. He said it was difficult for federal judges to craft write these without guidance.

But he was very clear. He said he is going to issue rules that the courts and the D.S.S. will have to follow.

He also said from the bench that it was not unlikely that this case, involving overlapping responsibilities of state and federal courts, is headed for appeal.