Lawsuit can proceed against South Dakota Social Services over Native American foster care

SIOUX FALLS, S.D. – A lawsuit from two tribes and three parents accusing South Dakota of routinely violating the federal law governing foster care and adoptions for American Indian children can proceed as a class-action case, a judge ruled.

U.S. District Judge Jeffrey Viken in Rapid City refused to dismiss the lawsuit and ruled that parts of it can proceed at an expedited pace and as a class-action case, according to court documents filed Tuesday.

The Oglala Sioux and Rosebud Sioux tribes and Indian parents Rochelle Walking Eagle, Madonna Pappan and Lisa Young filed the lawsuit last year.

The case is part of an ongoing dispute about Native American children in foster care in South Dakota. It alleges the state is violating the Indian Child Welfare Act by holding improper hearings after children are removed from homes. It says the hearings are sometimes as short as 60 seconds and do not give parents the opportunity to introduce evidence showing their ability to care for the child or to question the state.

"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 lawsuit names South Dakota Social Services Secretary Kim Malsam-Rysdon and employee LuAnn Van Hunnik, Pennington County State's Attorney Mark Vargo and 7th Judicial Circuit Court Presiding Judge Jeff Davis as defendants.

"It is an early stage in the proceedings and there has been no decision on the merits. We will prepare to file our answer and work with the parties to exchange discovery information," said South Dakota Attorney General Marty Jackley.

Federal law requires that Indian children removed from homes be placed with relatives or with other Native American families, except in unusual circumstances. Tribal officials contend South Dakota removes too many American Indian children from their homes and then puts them in foster care with non-Indian families.

Congress passed the Indian Child Welfare Act in 1978 because of the once high number of Indian children being removed from their homes by public and private agencies.

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Contact Carson Walker at https://twitter.com/carsonjw