Appeals Court Overturns Native American Child Welfare Ruling in South Dakota

A federal appeals court last week sided with state agencies in South Dakota in regard to an earlier district court ruling to protect the rights of Native American parents during emergency child removal hearings.

In 2013, the Oglala Sioux Tribe and the Rosebud Sioux Tribe of South Dakota filed a class action lawsuit focused on the initial hearings following emergency removals during child abuse investigations, alleging that they were so short — oftentimes just a few minutes — that they violated parents’ Indian Child Welfare Act (ICWA) and 14th amendment due process rights.

At the time of the initial hearing, the state Department of Social Services (DSS) and other named state defendants moved to dismiss the suit on the grounds that federal courts are not supposed to interfere with the workings of state courts.

Friday’s decision by the Court of Appeals will send the case back to the district court and instruct them to dismiss the original complaint, as previously requested by DSS.

“DSS has maintained from the beginning the district court should have abstained from exercising jurisdiction in this case, and we are pleased that our position prevailed at the Eighth Circuit,” DSS Secretary Lynne Valenti said in a statement.

ICWA, enacted by Congress in 1978, governs state child-custody proceedings in multiple ways, including:

  • Recognizing tribal jurisdiction over decisions for their Indian children.
  • Setting minimum federal standards for the removal of Indian children from their families.
  • Establishing preferences for placement of Indian children with extended family or other tribal families.
  • Instituting protections to ensure that birth parents’ voluntary relinquishments of their children are truly voluntary.

The law was established as a way to address an alarming trend of high numbers of Indian children being removed from their homes by child welfare agencies — and more often than not, placed with non-Native foster and adoptive families. Part of the intent, according to the legal text, is to “promote the stability and security of Indian tribes and families.”

Whenever a child is removed into protective custody, an inquiry into possible Native American heritage is required to determine if the child and family are protected by ICWA rules.

Despite Friday’s ruling, this case will likely be ongoing. In a 2015 hearing of the original suit, Chief Judge Jeffrey Viken said the case could make it all the way to the U.S. Supreme Court “because of the importance of the issues involved,” the Rapid City Journal reports.


If you are interested in reading more about federal child welfare and juvenile justice policy, read our annual special issue “Kids on the Hill: A Special Issue on Child Welfare Policy” by clicking here!


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Sara Tiano
About Sara Tiano 96 Articles
General assignment reporter for The Chronicle of Social Change