The Defendants in the Oglala Sioux Tribe v. Van Hunnik federal class action have all requested that the Court reconsider it’s most recent order, which granted summary judgment to the Plaintiffs on essentially all issues. The reconsideration documents are available on Turtle Talk, and linked below. The briefs (documents 168, 171, & 172) contain the actual arguments and are the documents worth reading.
- 2015_04_27 167 DSS Motion to Reconsider
- 2015_04_27 168 DSS Brief in Sup of Mot to Reconsider
- 2015_04_27 169 Vargo Motion to Reconsider
- 2015_04_27 170 Davis Motion to Reconsider
- 2015_04_27 171 Vargo Brief in Sup of Mot to Reconsider
- 2015_04_27 172 Davis Brief in Sup of Mot to Reconsider
- 2015_04_27 173 DSS Joinder in Other Arguments
The main thrust of the arguments is that the Defendants are not “policy makers” in the sense required to hold them liable in this case. I am somewhat sympathetic to the arguments of DSS (Van Hunnik) and State’s Attorney (Vargo) on this point. I am far less sympathetic to the argument that judges (Davis) are not policy makers in this situation. As I indicated previously, common usage of the English language certainly suggests they are policy makers in many ways relevant to the issues raised in this case.
My brief review of these submissions leads me to believe that this “policy maker” issue is going to be one of the primary issues in an eventual appeal by the Defendants. This is unfortunate, because it completely skirts the heart of the issue. The Federal Court has determined, I believe correctly in many respects, that the prevailing procedures in the Seventh Circuit when children are first removed violate the constitutional rights of parents. Even if the Defendants are entirely successful in their “policy maker” argument, that would not mean that parents’ rights were not violated. All it would mean is that these particular Defendants are not legally liable for it, despite the fact that they are the ones with the discretion to do things differently.