Court erases victory for Native American parents separated from their children
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In March 2013, the Oglala Sioux Tribe, the Rosebud Sioux Tribe, and three Indian parents filed a first-of-its-kind suit in federal court under the Indian Child Welfare Act and the Fourteenth Amendment. Judges and state attorneys were blowing through the inCourt erases victory for Native American parents separated from their children
In March 2013, the Oglala Sioux Tribe, the Rosebud Sioux Tribe, and three Indian parents filed a first-of-its-kind suit in federal court under the Indian Child Welfare Act and the Fourteenth Amendment. Judges and state attorneys were blowing through the initial hearings that are required after removing an Indian child from a parent. Parents didn’t know they had a right to an attorney; they were being denied the chance to contest claims of neglect or abuse. The result? Children were separated from their families for months before a meaningful opportunity to fight for their return arose. Social workers have been taking children away from parents based on nothing more than a report about the parent or a parent’s arrest. In one South Dakota county, more than 1,000 Indian children have been removed from their homes since 2010. Fifty-two percent of children in foster care in the state are Indian. Of course, there’s a long and terrible history of state actors removing Indian children from their homes. District Court Judge Jeffrey Viken granted the tribes standing to sue under the ICWA and certified Indian parents as a class for the first time. He went on to rule for the plaintiffs, cataloging state failures and mandating reforms. Then it went to the Eighth Circuit. It’s not that the Eighth Circuit said that South Dakota’s practices are fine; it just said that federal courts shouldn’t intervene. The three judges are relying on a principle of abstention established in 1979 in Younger v. Harris, that federal courts should generally let state courts decide state issues. Their reasoning draws heavily, but not well, from ignoble Supreme Court precedent. There’s a 1979—yes, 1979—case called Moore v. Sims in which a five-justice majority decided that Younger abstention doctrine should apply to a federal district court challenge to Texas child custody procedures because Texas hadn’t specifically banned parents from litigating the issues in-state. [T]he only pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims, and Texas law appears to raise no procedural barriers. Read more