The Defendants in the Oglala Sioux Tribe v Van Hunnick federal class action suit submitted responses to the Plaintiff’s motions for summary judgment in early September. Those responses are linked below:
- 2014_09_05 128 Defendant’s Reponse to 1922 Summary Judgment Motion
- 2014_09_05 129 Defendant’s Reponse to Due Process Summary Judgment Motion
The responsive briefs of the plaintiffs were filed on September 30th and are linked below:
- 2014_09_30 135 Plaintiff’s Reply Brief re ICWA
- 2014_09_30 136 Plaintiff’s Reply Brief re Due Process
There are a lot of different comments I find myself wanting to make, but in the interest of posting this in a remotely timely fashion, I will refrain from doing so in any depth. Below are a few of my very brief, and therefore very conclusory, thoughts. Many may seem random without reading the briefs.
- The codified laws in this area, both state (SDCL 26) and federal (ICWA), are often poorly written.
- Providing parents with a generic form petition that incorporates a police report, but not also providing that incorporated police report, does not adequately notify them of the claims against them.
- Claiming to be protecting a parent’s right to counsel cannot serve as a legal basis for categorically denying parents the opportunity to present evidence or cross-examine witnesses. The most obvious reason for this is that parents have the right to not invoke their right to counsel.
- Parents must be notified that they have the right to contest the State’s petition for temporary custody, and of the legal standards that are applicable.
- Ideally, parents should also be notified that if they wish to exercise their right to consult with their newly-appointed attorney before deciding whether to request a full evidentiary hearing to contest the petition for temporary custody, that such a hearing will be convened within a time-certain if later requested (e.g. 10 days). Without some knowledge of how long they would have to wait for such a hearing, it would be very difficult for a parent to make an informed decision.
- South Dakota law does NOT require the implementation of many of the procedures common in 7th Circuit. A significant range of procedures are likely permissible under South Dakota law. Discretionary procedures used essentially 100% of the time fit the dictionary definition of “policy.” These policies are made by the Judges, which would make them “policy makers.” Deciding that legal question may be more complicated, but that is what my intuition and common usage of the English language tell me.
- Section 1912(a) of ICWA does not prevent a “child custody proceeding” from being “initiated” without 10 days notice, it prevents a “foster care placement or termination of parental rights proceeding” from being “held” without 10 days notice. I’m not sure how one provides notice of a proceeding that has not been “initiated,” and this notice requirement mostly logically applies to what would be the adjudicatory hearing. This is one example of how ICWA is very poorly written. (see #1)