Case: Oglala Sioux Tribe v. Van Hunnik

5:13-cv-05020 | U.S. District Court for the District of South Dakota

Filed Date: March 21, 2013

Closed Date: Jan. 16, 2020

Clearinghouse coding complete

Case Summary

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 …

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.

Summary Authors

Madeline Buday (3/11/2021)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4382044/parties/oglala-sioux-tribe-v-van-hunnik/


Judge(s)

Viken, Jeffrey Lynn (South Dakota)

Attorneys(s) for Plaintiff

Doody, Robert J. (South Dakota)

Goodman, Rachel E.. (New York)

Hanna, Dana (South Dakota)

Knecht, Andrew J (South Dakota)

Pevar, Stephen L. (Connecticut)

Attorneys(s) for Defendant

Anderson, Robert B. (South Dakota)

Blair, Steven R (South Dakota)

Connolly, Jeffrey R (South Dakota)

Frankenstein, Sara (South Dakota)

Judge(s)

Viken, Jeffrey Lynn (South Dakota)

Attorneys(s) for Plaintiff

Doody, Robert J. (South Dakota)

Goodman, Rachel E.. (New York)

Hanna, Dana (South Dakota)

Knecht, Andrew J (South Dakota)

Pevar, Stephen L. (Connecticut)

Attorneys(s) for Defendant

Anderson, Robert B. (South Dakota)

Blair, Steven R (South Dakota)

Connolly, Jeffrey R (South Dakota)

Frankenstein, Sara (South Dakota)

Giedd, Roxanne (South Dakota)

Goodsell, G Verne (South Dakota)

Hurd, Jeffrey G (South Dakota)

Mann, Rebecca L. (South Dakota)

Mines-Bailey, Ana F. (South Dakota)

Morris, Robert L (South Dakota)

Oviatt, Nathan R (South Dakota)

Palmer, J Crisman (South Dakota)

Quinn, Terence R (South Dakota)

Sabers, Catherine M (South Dakota)

Other Attorney(s)

Bachand, Paul E (South Dakota)

Deerinwater, Verlin Hughes (District of Columbia)

Johnson, Gerald D (South Dakota)

Ragu-Jara, Gregg (District of Columbia)

Documents in the Clearinghouse

Document

Docket [PACER]

July 31, 2020 Docket
1

Class Action Complaint for Declaratory and Injunctive Relief

March 21, 2013 Complaint
70

Order Granting Class Certification

2014 WL 317693

Jan. 28, 2014 Order/Opinion
69

Order Denying Motion to Dismiss

993 F.Supp.2d 1017

Jan. 28, 2014 Order/Opinion
150

Order

100 F.Supp.3d 749

March 30, 2015 Order/Opinion
303

Declaratory Judgment

Oglala Sioux Tribe v. Fleming

Dec. 15, 2016 Order/Opinion
304

Permanent Injunction

Oglala Sioux Tribe v. Fleming

Dec. 15, 2016 Order/Opinion
301

Order

Oglala Sioux Tribe v. Fleming

220 F.Supp.3d 986

Dec. 15, 2016 Order/Opinion
384

Order

Oglala Sioux Tribe v. Fleming

Jan. 16, 2020 Order/Opinion

Resources

Title Description External URL

Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform

Kathleen G. Noonan, Charles F. Sabel, William H. Simon

Current trends intensify the longstanding problem of how the rule of law should be institutionalized in the welfare state. Welfare programs are being redesigned to increase their capacities to adapt … June 1, 2009 http://papers.ssrn.com/...

Docket

See docket on RECAP: https://www.courtlistener.com/docket/4382044/oglala-sioux-tribe-v-van-hunnik/

Last updated May 12, 2022, 8 p.m.

ECF Number Description Date Link
1

Complaint

1 *Restricted*

View on PACER

2 *Restricted*

View on PACER

3 Exhibit 3 - Indican Child Welfare Act (ICWA) Blank Affidavit

View on RECAP

4 Exhibit 4 - Blank Temporary Custody Order

View on PACER

5 *Restricted*

View on PACER

6 Exhibit 6 - July 3, 2012 letter from Judge Thorstenson

View on PACER

7 *Restricted*

View on PACER

March 21, 2013 RECAP
2

Civil Cover Sheet

March 21, 2013 PACER
3

Filing Fee Received

March 21, 2013 PACER
4

Summons Issued

March 21, 2013 PACER
5

Motion to Seal Document

March 21, 2013 PACER
6

Motion to Expedite

April 9, 2013 PACER
7

Order

April 11, 2013 PACER
8

Order on Motion to Seal Document

April 11, 2013 PACER
9

Motion for Admission Pro Hac Vice

April 12, 2013 PACER
10

Order on Motion for Admission Pro Hac Vice

April 15, 2013 PACER
11

Notice of Appearance

April 15, 2013 PACER
12

Notice of Appearance

April 15, 2013 PACER
13

Notice of Appearance

April 15, 2013 PACER
14

Notice of Appearance

April 16, 2013 PACER
15

Notice of Appearance

April 18, 2013 PACER
16

Notice of Appearance

April 18, 2013 PACER
17

Response to Motion

April 18, 2013 PACER
18

Brief

April 18, 2013 PACER
19

Supplement

April 18, 2013 PACER
20

Certificate

April 18, 2013 PACER
21

Joinder

April 18, 2013 PACER
22

Affidavit

April 18, 2013 PACER
23

Joinder

April 18, 2013 PACER
24

Motion for Miscellaneous Relief

April 22, 2013 PACER
25

Memorandum in Support of Motion

April 22, 2013 PACER
26

Reply to Motion Response

April 23, 2013 PACER
27

Motion for Leave to File Excess Pages

May 7, 2013 PACER
28

Response

May 13, 2013 PACER
29

Memorandum in Opposition to Motion

May 13, 2013 PACER
30

Joinder

May 13, 2013 PACER
31

Response to Motion

May 15, 2013 PACER
32

Order on Motion for Leave to File Excess Pages

May 16, 2013 PACER
33

Motion to Dismiss

May 17, 2013 PACER
34

Memorandum in Support of Motion

May 17, 2013 PACER
35

Certificate

May 17, 2013 PACER
36

Joinder

May 17, 2013 PACER
37

Motion to Dismiss

May 20, 2013 PACER
38

Memorandum in Support of Motion

May 20, 2013 PACER
39

Motion to Dismiss

May 20, 2013 PACER
40

Memorandum in Support of Motion

May 20, 2013 PACER
41

Reply to Motion Response

May 23, 2013 PACER
42

Motion for Leave to File Excess Pages

June 4, 2013 PACER
43

Reply

June 6, 2013 PACER
44

Reply

June 9, 2013 PACER
45

Reply

June 10, 2013 PACER
46

Order on Motion for Leave to File Excess Pages

June 12, 2013 PACER
47

Motion to Extend

June 18, 2013 PACER
48

Reply

June 19, 2013 PACER
49

Order on Motion to Extend

June 19, 2013 PACER
50

Reply

June 24, 2013 PACER
51

Response

June 26, 2013 PACER
52

Reply

June 28, 2013 PACER
53

Reply

July 19, 2013 PACER
54

Joinder

July 19, 2013 PACER
55

Notice of Appearance

July 29, 2013 PACER
56

Request

Sept. 20, 2013 PACER
57

Notice

Dec. 11, 2013 PACER
58

Order

Dec. 12, 2013 PACER
59

Supplement

Dec. 23, 2013 PACER
60

Joinder

Dec. 23, 2013 PACER
61

Joinder

Dec. 26, 2013 PACER
62

Response to Motion

Jan. 8, 2014 PACER
63

Reply

Jan. 14, 2014 PACER
64

Joinder

Jan. 16, 2014 RECAP
65

Joinder

Jan. 17, 2014 PACER
66

Motion to Withdraw as Attorney

Jan. 17, 2014 PACER
67

Order on Motion to Withdraw as Attorney

Jan. 27, 2014 PACER
68

Notice

Jan. 27, 2014 PACER
69

ORDER denying 33 Motion to Dismiss; denying 36 and 37 Motion to Dismiss; denying 39 Motion to Dismiss. Signed by Chief Judge Jeffrey L. Viken on 1/28/14. (SB)

Jan. 28, 2014 RECAP
70

ORDER granting 24 Motion for Class Certification. Signed by Chief Judge Jeffrey L. Viken on 1/28/14. (SB)

Jan. 28, 2014 RECAP
71

Order on Motion to Expedite

Jan. 28, 2014 PACER
72

Order for Form 52

Jan. 28, 2014 PACER
73

Notice of Appearance

Feb. 6, 2014 PACER
74

Answer to Complaint

Feb. 11, 2014 PACER
75

Answer to Complaint

Feb. 11, 2014 PACER
76

Answer to Complaint

Feb. 11, 2014 PACER
77

Stipulation

Feb. 18, 2014 PACER
78

Protective Order

Feb. 21, 2014 PACER
79

Motion to Substitute Party

Feb. 27, 2014 PACER
80

Answer to Complaint

Feb. 28, 2014 PACER
81

Answer to Complaint

Feb. 28, 2014 PACER
82

Order on Motion to Substitute Party

Feb. 28, 2014 PACER
83

Form 52 Report

March 7, 2014 PACER
84

Scheduling Order

March 12, 2014 PACER
85

Motion to Compel

March 17, 2014 PACER
86

Order

March 17, 2014 PACER
87

Redacted Document

March 24, 2014 PACER
88

Response to Motion

March 28, 2014 PACER
89

Response to Motion

March 28, 2014 PACER
90

Reply to Motion Response

April 4, 2014 PACER
91

Objection

April 14, 2014 PACER
92

Response

April 15, 2014 PACER
93

Order

April 22, 2014 PACER
94

Response

April 23, 2014 PACER
95

Order on Motion to Compel

May 1, 2014 PACER
96

Motion to Extend Deadlines

June 13, 2014 PACER
97

Order on Motion to Extend Deadlines

June 16, 2014 PACER
98

Motion to Compel

June 18, 2014 PACER
99

Response

July 3, 2014 PACER
100

Reply to Motion Response

July 7, 2014 PACER

State / Territory: South Dakota

Case Type(s):

Child Welfare

Key Dates

Filing Date: March 21, 2013

Closing Date: Jan. 16, 2020

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Parents or custodians of Indian children from members of federally recognized Indian tribes who reside in Pennington County, South Dakota

Plaintiff Type(s):

American Indian Tribe

Private Plaintiff

Attorney Organizations:

ACLU Affiliates (any)

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Granted

Defendants

South Dakota Department of Social Services , State

Child Protective Services (CPS) for Pennington County, County

Presiding Judge of the Seventh Judicial Circuit Court of South Dakota, State

State's Attorney for Pennington County, County

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action:

42 U.S.C. § 1983

Constitutional Clause(s):

Due Process

Availably Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Non-settlement Outcome

Any published opinion

Outcome

Prevailing Party: Defendant

Nature of Relief:

None

Source of Relief:

None

Issues

General:

Access to lawyers or judicial system

Classification / placement

Family abuse and neglect

Family reunification

Incident/accident reporting & investigations

Juveniles

Parents (visitation, involvement)

Placement in shelters

Youth / Adult separation