On January 28, 2014, the Federal District Court denied all motions to dismiss that had been submitted in Oglala Sioux Tribe v. Van Hunnik, and also certified the case as a class action. I have been waiting for these decisions by the Court before writing about this case, but unfortunately find myself too busy to devote sufficient time to the topic at the moment. As such, my comments at the moment will less extensive than they could be.
This case primarily involves the judicial procedures used when children are initially removed. Typically the removal of a child from the home is unplanned, such as when the child’s parents are arrested. The child cannot be held for more than two business days without a hearing and court order. This hearing is referred to as the 48-hour hearing. At the 48-hour hearing, it is the norm for the court to grant custody of an allegedly abused or neglected child to the Department of Social Services (DSS) for 60 days. The Plaintiffs in the federal case are alleging violations of due process and the ICWA based on some of the particulars of these initial proceedings. As summarized by me, the alleged violations are (1) not providing parents with the allegations and information against them, (2) not allowing parents to cross-examine witnesses and present their own evidence at this stage, (3) not requiring expert witness testimony at this stage as allegedly required by the ICWA, and (4) not ensuring that foster placements terminate as soon as required by the ICWA. The first two alleged violations are not dependent on ICWA status, and would have application to all abuse and neglect cases.
When ruling on the motions to dismiss, the Federal Court had to assume that the factual allegations made by the Plaintiffs were all true. The Defendants argued that even if the factual allegations of the Plaintiffs were accurate, they did not have a case. By denying the motions to dismiss, the Federal Court essentially found that if the Plaintiff’s allegations were accurate, a violation of the law occurred. The Court’s refusal to grant the motions to dismiss is therefore quite significant, although it is far from a final ruling. There will now be a discovery phase in the case, as part of which the Plaintiffs will be obtaining transcripts from other 48-hour hearings. Absent a settlement along the way, the Court will still need to determine contested facts, likely make additional legal rulings, and determine the appropriate relief for any constitutional or ICWA violations.
I feel the need to point out what this case is NOT, namely a challenge to how South Dakota Courts apply the ICWA placement preferences or the overall number of Indian children removed. The suit essentially contends that things which eventually happen in abuse and neglect cases should happen at a much earlier point in the proceedings. Therefore, the primary practical effect of a victory by the Plaintiffs would be the creation of procedures that would result in children who are eventually returned to their parents and families being returned earlier. This result would be laudatory, as removal for any period of time is traumatic for both children and parents. However, it would probably not result in a significant decrease in the number of removed children who are never returned to their parents.
Below are most of the court documents filed to date, which have also been posted by Matthew L.M. Fletcher on Turtletalk. The curious may also want to read the Cheyenne River Sioux Tribe v. Davis decision by the South Dakota Supreme Court, which describes some of the facts and procedures from the state court case of one of the plaintiff parents. Those wanting to read mostly about the substantive claims in this case rather than class-action certification, standing, and abstention doctrines, would do best to limit their reading to the Complaint, the relevant parts of the various motions to dismiss and responses thereto, and the relevant parts of the Order Denying Motions to Dismiss. Those wishing to limit their reading to one document would do best to start at page 18 of the Order Denying Motions to Dismiss and read to the end.
- 2013_03_26 Complaint & Public Exhibits
- 2013_04_22 Brief in Sup of Mot for Class Certification
- 2013_05_17 Davis Memorandum in Sup of Motion to Dismiss
- 2013_05_20 DSS Memorandum in Sup of Mot to Dismiss
- 2013_05_20 Vargo Brief in Sup of Mot to Dismiss
- 2013_05_23 Plaintiff’s Reply Brief re Mot for Class Certification
- 2013_06_06 Plaintiff’s Response to Davis Motion to Dismiss
- 2013_06_10 Plaintiff’s Response to DSS Motion to Dismiss
- 2013_06_10 Plaintiff’s Response to Vargo Motion to Dismiss
- 2013_06_28 Plaintiff’s Notice of Supplemental Authority re Baby Girl
- 2014_01_28 Order Granting Class Certification
- 2014_01_28 Order Granting Motion for Expedited Discovery
- 2014_01_28 Order Denying Motions to Dismiss
- 2014_03_17 Motion to Compel (added 3/21/2014)
- 2014_03_17 Order re Motion to Compel (added 3/21/2014)
- 2014_03_28 88 Davis Response to Motion to Compel (added 4/4/2014)
- 2014_03_28 89 Non-Party Judges Response to Motion to Compel (added 4/4/2014)
- 2014_05_01 95 Order Granting Motion to Compel (added 5/2/2014)
- 2014_06_18 98 Plaintiff’s Mot to Compel Responses from Davis (added 7/25/2014)
- 2014_07_03 99 Davis Response to 2nd Motion to Compel (added 7/25/2014)
- 2014_07_07 100 Plaintiff’s Reply Brief re Mot to Compel (added 7/25/2014)
- 2014_07_07 101 Plaintiff’s Mot to File Under Seal (added 7/25/2014)
- 2014_07_11 106 Plaintiff’s 1st Sum Judgment Mot – ICWA (added 7/25/2014)
- 2014_07_11 107 Plaintiff’s Statment of Undisputed Facts re ICWA (added 7/25/2014)
- 2014_07_11 108 Plaintiff’s 2nd Sum Judgment Mot – Due Process (added 7/25/2014)
- 2014_07_11 109 Plaintiff’s Statment of Undisputed Facts re Due Process (added 7/25/2014)
- 2014_07_21 112 Order Granting Mot to Seal (added 7/25/2014)
- 2014_07_21 113 Plaintiff’s Motion to Unseal (added 7/25/2014)
- 2014_07_28 118-1 48 Hour Hearing Transcripts (pgs 1-50) (added)
- 2014_07_28 118-1 48 Hour Hearing Transcripts (pgs 51-100) (added)
- 2014_07_28 118-1 48 Hour Hearing Transcripts (pgs 101-300) (added)
- 2014_07_28 118-1 48 Hour Hearing Transcripts (pgs 301-502) (added)
- 2014_07_28 118-2 Temporary Custody Orders (pgs 1-55) (added)
- 2014_07_28 118-2 Temporary Custody Orders (pgs 56-113) (added)
- 2014_07_28 118-3 ICWA Affidavits (pgs 1-75) (added)
- 2014_07_28 118-3 ICWA Affidavits (pgs 76-145) (added)
- 2014_07_28 118-4 Petitions for Temporary Custody (added)
- 2014_09_05 128 Defendant’s Reponse to 1922 Summary Judgment Motion (added 9/29/2014)
- 2014_09_05 129 Defendant’s Reponse to Due Process Summary Judgment Motion (added 9/29/2014)
- 2015_03_30 150 Order (Granting Partial Summary Judgment) (added 3/31/2015)