The Federal District Court has granted summary judgment in favor of the Plaintiffs on essentially all issues, both ICWA and due process related, in the Oglala Sioux Tribe v. Van Hunnik case. The Court’s Order is linked below:
A separate order granting declaratory and injunctive relief will be issued later. The parties to the case have until May 1, 2015 to submit their proposals for such an order. This will likely be the more interesting order in my opinion. It is easy conclude that existing procedures are inadequate, but harder to craft a replacement. A number of significant documents in the case are linked in this previous post. I have previously opined on the potential outcome of this case and relief that could be granted in these posts:
- OST v. Van Hunnick – Additional Briefs & Thoughts
- DOJ Brief & Thoughts on Relief in OST v Van Hunnik
There is significant potential for this case to impact the rights of all parents (not just Native American) throughout the country (not just in Pennington County, South Dakota). Although the Court’s ruling is directly limited to the parties involved, it creates a precedent that could apply to a much larger population. The due process arguments made are applicable to ALL parents whose children are removed, and suspect procedures similar to those used in Pennington County are used in many places throughout the nation.
Below are a few of the more interesting quotes from the Court’s Order:
- A competently conducted evidentiary hearing held on an expedited basis is fundamental to ICWA’s purposes. ICWA requires the state court to make the custody decision at the earliest possible moment. The court cannot delegate the authority to make the custody decision to a state agency or its employees. Plaintiffs are entitled to judgment as a matter of law on their Indian Child Welfare Act claims. (p35)
- Judge Davis and the other defendants failed to protect Indian parents’ fundamental rights to a fair hearing by not allowing them to present evidence to contradict the State’s removal documents. The defendants failed by not allowing the parents to confront and cross-examine DSS witnesses. The defendants failed by using documents as a basis for the court’s decisions which were not provided to the parents and which were not received in evidence at the48-hour hearings. Plaintiffs are entitled to judgment as a matter of law on their Due Process Clause claims. (p42)
- Approximately one hundred 48-hour hearings involving Indian children are held each year in the Seventh Circuit Court for Pennington County. (Docket 130 ¶ 1). Excluding those cases where jurisdiction over a child was promptly transferred to a tribal court, in 100 percent of the 48-hour hearings conducted by Judge Davis from January 2010 to July 2014, 15 he granted motions by the States Attorney and DSS for continued custody of all Indian children involved in those hearings. (Dockets 109 ¶ 1 & 131 ¶ 1). Eight hundred twenty-three Indian children were involved in 48-hour hearings in Pennington County, South Dakota, during the years 2010 to 2013. (Docket 131 if 2). Of those 823 Indian children
– 87 children were discharged from DSS custody the day of the 48-Hour hearing;
– 268 children were discharged from DSS custody within 1-15 days after the 48-hour hearing;
– 114 children were discharged from DSS custody within 16-30 days after the 48-hour hearing;
– 44 children were discharged from DSS custody within 31-45 days after the 48-hour hearing;
– 50 children were discharged from DSS custody within 46-60 days after the 48-hour hearing; and
– 260 children remained in DSS court-ordered custody for more than 60 days after the 48-hour hearing. (p12-13)