Case: Oglala Sioux Tribe v. Van Hunnik

This case is about whether, despite the protections afforded by the Indian Child Welfare Act of 1978 (ICWA) to Native American families, officials in Pennington County, South Dakota removed Native American children from their homes without sufficient evidence or adequate hearings. On March 21, 2013, three native parents and the Oglala Sioux Tribe and the Rosebud Sioux Tribe brought this class-action lawsuit in the U.S. District Court for the District of South Dakota. They sued the Secretary of the South Dakota Department of Social Services (DSS), the State's Attorney for Pennington County, the presiding judge of the Seventh Judicial Circuit Court of the state of South Dakota, and the person in charge of Child Protective Services (CPS) for Pennington County under 42 U.S.C. § 1983. Represented by private counsel and the ACLU, the plaintiffs sought declaratory and injunctive relief.

The plaintiffs challenged three policies, practices, and customs: “(1) removing Indian children from their homes without affording them, their parents, or their tribe a timely and adequate hearing as required by the Due Process Clause [of the Fourteenth Amendment], (2) removing Indian children from their homes without affording them, their parents, or their tribe a timely and adequate hearing as required by the Indian Child Welfare Act, and (3) removing Indian children from their homes without affording them, their parents, or their tribe a timely and adequate hearing and then coercing the parents into waiving their rights under the Due Process Clause and the Indian Child Welfare Act to such a hearing.”

On April 22, 2013 the plaintiffs moved to certify their class, and by May 20, 2013, all defendants had moved to dismiss, arguing: “(1) the court should not entertain this action under the Younger and Rooker–Feldman abstention doctrines; (2) plaintiffs failed to exhaust their state court remedies; (3) plaintiffs lack standing; (4) plaintiffs have failed to state a claim upon which relief can be granted; and (5) plaintiffs' ICWA claims cannot be vindicated under 42 U.S.C. § 1983.”

On January 28, 2014, Chief Judge Jeffrey L. Viken certified the class as “all other members of federally recognized Indian tribes who reside in Pennington County, South Dakota, and who, like plaintiffs, are parents or custodians of Indian children.” On the same day, Judge Viken also denied each of the five claims raised by the defendants in their motions to dismiss. 993 F.Supp.2d 1017.

The plaintiffs then filed two separate motions for partial summary judgment on July 11, 2014; one concerned the due process claims and the other concerned their claim regarding ICWA, specifically that the defendants were violating § 1922, which allows for the emergency removal of a native child only “in order to prevent imminent physical damage or harm to the child.”

Judge Viken granted both motions for partial summary judgment on March 30, 2015. Judge Viken found that judicial and prosecutorial immunity did not apply to the defendants, and that the practice and policies of the defendants violated both the requirements of ICWA and due process. He summarized the violations as follows: “(1) failing to appoint counsel in advance of the 48-hour hearing; (2) failing to provide notice of the claims against Indian parents, the issues to be resolved and the state's burden of proof; (3) denial of the right to cross-examine adverse witnesses; (4) denying Indian parents or custodians the right to present evidence in their own defense; and (5) removing Indian children on grounds not based on evidence presented in the hearing.” Additionally, he noted that even though the two Tribes reached a separated agreement in May of 2014 with the State's Attorney and DSS, which maintained that they would provide both “the petition for temporary custody and the ICWA affidavit to Indian parents at 48–hour hearings,” this did not negate the plaintiffs’ right to relief. The presiding judge of the Seventh Judicial Circuit Court still maintained that “§ 1922 and the due process rights…do not apply at 48–hour hearings,” and therefore it is not “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” 100 F. Supp. 3d 749.

However, on February 19, 2016, Judge Viken granted in part the defendant’s motion for reconsideration based on “minor misstatements” of material facts in the March 30 order, and subsequently he amended the grant of partial summary judgment. 2016 WL 697117. Plaintiffs again moved for partial summary judgment on July 5, 2016, which the defendants moved to strike on July 26, 2016.

On December 15, 2016, Judge Viken denied the defendants’ motion to strike and again granted the plaintiffs’ motion for partial summary judgment. Whereas plaintiffs’ first motion for summary judgment challenged the “policy of ignoring § 1922,” the second motion challenged the policy of “misinterpreting and misapplying § 1922.” Judge Viken found that the DSS continued to seek emergency custody “based exclusively on evidence of emotional damage,” when “Congress intended § 1922 to be limited solely to “imminent physical damage or harm” in determining whether to initiate or terminate emergency proceedings.” 220 F. Supp. 3d 986.

Consequently, on the same day, Judge Viken granted the plaintiffs' request for a declaratory judgment and injunctive relief. In his declaratory judgment, he berated the defendants for continuing to “disregard this court's March 30, 2015, partial summary judgment order” and failing to comply “with § 1922 and the Due Process Clause when dealing with Indian children, parents, custodians and tribes in 48-hour hearings.” Judge Viken therefore issued a detailed permanent injunction against the DSS and CPS, but not the presiding judge, which largely forbid the violations outlined in the March 30 order so as to protect “the constitutional rights of the plaintiffs guaranteed by the Due Process Clause of the Fourteenth Amendment” and “the statutory rights of the plaintiffs guaranteed by the Indian Child Welfare Act.”

On January 1, 2017 the defendants filed their appeal of Judge Viken’s December 15, 2016 decision.

Meanwhile, the plaintiffs again filed two additional motions for partial summary judgment, which alleged “inadequate training and supervision” of CPS staff and against DSS for failing to end the placement of Native children when the reason for the placement ends. However, on September 29, 2017, Judge Viken denied both motions because the motions addressed claims not made in the original complaint. The plaintiffs subsequently filed an amended complaint on January 21, 2018 which added the allegations made in the motions for partial summary judgment to the complaint as a fourth and fifth claim.

However, on September 14, 2018, the Eighth Circuit of the United States Court of Appeals vacated the orders granting partial summary judgment and declaratory and injunctive relief, and remanded the case with instructions to dismiss the claims that gave rise to the orders. The Eighth Circuit held that the district court should have abstained under Younger because “South Dakota's temporary custody proceedings are civil enforcement proceedings to which Younger principles apply.” Abstention, the court reasoned, “was warranted because “a federal court should not intervene where such interference unduly inhibits the legitimate functioning of the individual state's judicial system.” In this case, the relief granted “would interfere with the state judicial proceedings by requiring the defendants to comply with numerous procedural requirements at future 48-hour hearings.” 904 F.3d 603.

Following this decision, which left only claims four and five of the plaintiffs’ amended complaint in contention, the defendants filed a motion to dismiss for failure to state a claim on October 22, 2018. The plaintiffs, meanwhile, appealed to the Supreme Court, which declined to hear the appeal on October 8, 2019.

On January 16, 2020, Judge Viken granted defendants' motion to dismiss as claims four and five also rested on judicial policies and practices of the state, which under the Eighth Circuit’s decision required abstention, and entered judgment in favor of the defendants.

The case is now closed.