Federal Court Issues ICWA Orders (Now With Teeth)

Federal District Court Judge Viken issued new orders on December 15th in the Oglala Sioux Tribe v. Flemming case (previously Oglala Sioux Tribe v. Van Hunnick).  The Court already found in favor of the Plaintiffs over a year and a half ago, but had not issued orders with any real teeth until now.  As such, the Defendants had continued to engage in practices the Court had found unconstitutional and in violation of the Indian Child Welfare Act (ICWA).  The new documents are linked below:

Document 301 is a ruling that potential emotional harm is not grounds for emergency removal under ICWA.  Document 302 discusses the failure of the Defendants to make changes following the Court’s earlier orders and details the Court’s authority to grant relief.  Document 303 is a declaratory judgment detailing the Court’s findings regarding what must be done in 48-hour hearings, and is the document to read if you are wondering what practical changes are required.  Document 304 is an injunction directing the Pennington County State’s Attorney and the South Dakota Department of Social Services not to violate the rights of the Plaintiffs described in the Declaratory Judgment.  These Defendants could be subject to sanctions for contempt of court if they fail to comply with the injunction, which is what gives it teeth as compared to previous orders.  The Federal Court lacks the authority to issue an injunction against South Dakota State Court judges at this time.  However, if they fail to follow the Federal Court’s Declaratory Judgment, an injunction directed towards them could be issued at a later date.

If these Orders are not stayed pending the inevitable appeal of this case, they are likely to result in very rapid changes to the way abuse and neglect cases are initially conducted in the Seventh Circuit.  Currently, no testimony is allowed at initial 48-hour hearings.  Parents who show up are typically appointed an attorney at the initial 48-hour hearing (the vast majority of parents in these cases are indigent), and the hearing is continued for about two weeks.  Under the Federal Court’s orders, the 48-hour hearing can be continued only until the next business day, and shall be an adversarial proceeding with witnesses and cross-examination if desired by the respondents.

The 24-hour continuation timeline is the most interesting ruling in my mind, and I think it will be interesting to see how this works in practice.  Parents are usually initially assigned an attorney from the Public Defender’s Office or Dakota Plains Legal Services.  These entities have already been turning away cases because their attorneys cannot ethically handle additional cases.  I have to wonder how they will deal with contested 48-hour hearings on less than a day’s notice.  It will also be interesting when at the continued hearing there is a conflict that causes a parent’s attorney to have to withdraw (which is common).  The State’s Attorney’s office is also going to have to scramble to get documents out to appointed attorneys the same day they are appointed.  Any time constraint on how long hearings could be continued for was going to be somewhat arbitrary, so I will be interested in seeing how this aspect of the decision is scrutinized down the road.

We Should Be Ashamed

I was recently appointed to represent a young child who is the subject of an abuse and neglect case.  I went to visit with the child at her daycare, and was spontaneously commended by the daycare provider for coming to meet with the child.  She told me that she is also a foster parent and has had over 160 children pass through her home.  My visit was the fourth time she had ever seen a lawyer for a foster child.  I was only the third lawyer she had ever seen, as one of the prior lawyers had visited twice (props to Wendy McGowan on being that lawyer).

I also attended part of the Children’s Justice Conference in Rapid City on Tuesday.  As was the case last year, the Young Voices group, which is composed of young people who have been involved in the foster care system, was not on the agenda.  I suspect the reason is that those arranging the conference got tired of hearing about poorly we do in many ways, including lawyers purporting to represent clients that they never talk to.  I have previously discussed just how easy it would be to change our culture of legal malpractice if the judiciary wanted it changed.  If judges handling abuse and neglect cases took an extra 30 seconds per hearing to ask attorneys representing children when they had last met with their client, the culture of not doing so would change virtually overnight.

Right now, it seems that there is not just a tolerance of, but a preference for, poor (and unethical) representation.  I am somewhat baffled as to why this is, but suspect that it is due to an (incorrect) belief that it costs less.  We should be ashamed, and I suspect that in some ways we are, which is why we no longer hear from former foster children who point out our flaws.

If you are a former foster child who never met your lawyer, feel free to contact me.  I would be more than happy to help you report your lawyer to the disciplinary board.


Final ICWA Regulations Published

The soon-to-be final version of the new ICWA regulations were published on June 8, 2016.  They will not officially take effect until December 12, 2016.  There is extensive commentary prior to the actual regulations in both of the versions linked below:

I have not yet had the opportunity to thoroughly review the new regulations and compare them to the initial proposal, but it does appear that some significant improvements were made.  I submitted comments on the the proposed regulations regarding what I perceived as the most significant flaws in the proposal.  Very notably, the final regulations appear to have preserved the option for biological parents to retain anonymity in voluntary adoption situations.  This option would have been obliterated by the regulations initially proposed.  The final version of the regulations, while not perfect, also appear to reflect a number of other improvements from what was initially proposed.




$50,000 Stipulated Sanctions in Federal ICWA Case

Seventh Circuit Judge Jeff Davis, and presumably the South Dakota Attorney General’s office that now represents him, have stipulated to pay fifty thousand ($50,000!!!) in sanctions due to failing to produce requested discovery in the Oglala Sioux Tribe vs. Van Hunnik federal class action.  A pile of documents were unsealed earlier this month as a result of the stipulation, but I have thus far only reviewed the ones available here on the Turtle Talk website.

The short story appears to be as follows.  Judge Davis’ former counsel previously clerked for the 7th Circuit and drafted a memorandum that appears to have become the basis for 48 hour hearing practice in the 7th Circuit.  Plaintiff’s counsel knew of the memorandum because he received a copy through other channels, and a discovery request was made which should have resulted in the production of the memorandum.  It was not produced, apparently for quite some time despite communications between counsel.  Judge Davis indicates in the stipulation that he forgot about the document’s existence.

I still do not feel like I understand just what occurred, primarily because of the $50,000 in agreed attorney fees.  The fact that this amount was stipulated to means the Plaintiffs had a potential claim for more than that, and there had to be a lot more that went on than just what I have outlined above to justify more than $50,000 in fees.  I’m curious just where this $50,000 is going to come from, but presumably the State of South Dakota is somehow picking up the tab.

Update on ICWA Litigation from ICWA Defense Project

I have posted previously (here and here) about some ongoing ICWA litigation around the country.  The ICWA Defense Project has released a memorandum with updates on the latest procedural happenings in these cases.  It is recommended reading for anyone trying to keep up, and can be found at the following link:

Motions to Reconsider Denied in Federal ICWA Case

The Federal Court has denied the motions to reconsider submitted by the Defendants in the Oglala Sioux Tribe v. Van Hunnik federal class action case.  The Court found most of the Defendants’ arguments to be either without any merit or duplicative of earlier arguments that were already rejected.  The Court’s Order is linked below:

The Parties will now submit arguments as to the exact nature of the remedy to be crafted by the Court.  An injunction will issue against the State’s Attorney’s Office and DSS.  There likely will not be an injunction against the state court judges, but there will also be a declaratory judgment that they should abide by.  As I noted in an earlier post, Pennington County courts have continued to unabashedly violate parents’ due process rights, even after the earlier Federal Court order, and will presumably continue to do so until the Federal Court issues its injunctive and declaratory orders.

Pennington County Courts Continue to Violate Parents’ Due Process Rights

Earlier this week I had my first opportunity to observe temporary custody (48 hour) hearings in Pennington County since the Federal District Court entered its Order granting partial summary judgment in the Oglala Sioux Tribe v. Van Hunnik case.  Among other things, the Federal Court found that Pennington County courts were violating the constitutional due process rights of parents by denying them the opportunity to present evidence in their defense, cross-examine witnesses, or be represented by counsel.  Unfortunately, it appears that these violations continue to occur.

I base my conclusion on primarily on the advisement of rights that was given by the Court to the parents present.  As a lawyer with experience in this area, I have little doubt that I was better able to comprehend the Court’s advisement than any of the parents present.  Here is what I did NOT hear, but should have:

  1. You have the right to contest the removal of your children.
  2. The State would have to prove X, Y, and Z if you contest the removal of your children.
  3. You have the right to present evidence at a hearing contesting the removal of your children.
  4. You have the right to be represented by an attorney if you contest the removal of your children.
  5. Here’s what you have to do to request a hearing contesting the removal of your children (e.g. request a hearing when your case comes up; your lawyer may request a hearing after consulting with you; a hearing will be held within X days if requested).

Rather than making those things clear, the Court’s advisement gave the distinct impression that there was nothing the parents could do until either the next hearing in the case or the filing of a formal petition by the State.  It was explicitly stated in the advisement that testimony would not be taken at the hearing.  With regard to rights the parents (should) have to contest their children’s initial removal, the advisement was actually misleading.

In actual practice, children were returned to a parent at many of the hearings I observed, and attorneys were appointed for the parents who were present and whose children were not returned.  I don’t think the ultimate outcome of most of the cases would have been significantly different.  But, this misses the point.  It is not OK to disregard constitutional rights because they are inconvenient or probably will not be consequential to the outcome.  In some cases, they will be.  I believe the result in the case I was there for was different because of my early involvement.

The Federal Court is still weighing the multiple motions to reconsider that I discussed in this post.  As such, no injunction or declaratory judgment has yet been made to give teeth to the Court’s prior Order.  Hopefully that happens soon, because it is clear that the current practice will not change otherwise.  I remain curious regarding the exact relief that will be granted, but it is still self-evident to me that it is unconstitutional to take someone’s children for months without the opportunity for a meaningful hearing.

Addressing Some Misconceptions About Shared Parenting

In a bit of a deviation from my usual blog topics, I feel the need to address the topic of shared parenting.  The issue of shared parenting has often become a political one, including in South Dakota.   I have seen a number of misconceptions and just plain bad arguments from people on both sides of the issue.  I hope to briefly address some of them, but given the sheer number of misconceptions and bad arguments, I suspect this post may still get quite lengthy.  Due to time constraints, it will lack many of the citations I would often prefer to provide.

What is “shared parenting?” 

Different researchers and groups use different definitions of “shared parenting.”  This can create significant confusion.  Many social science researchers define it as a parenting arrangement where a child spends at least 1/3 of the time with each parent.  Many legislative battles focus on presumptions that a child would spend almost exactly half of the time with each parent.  I have seen others confuse the concept of joint legal custody (joint decision making) with shared parenting, and then contend that most states have presumptions in favor of shared parenting (which is totally false if one uses one of the more common definitions based on time with each parent).

In this post, I am going to use shared parenting to mean a parenting arrangement where the child is with each parent essentially equal amounts of time.  This usage is consistent with what it means to have “joint physical custody” in South Dakota (see SDCL 25-5-7.1 and SDCL 25-4A-24).

Is shared parenting inherently detrimental? 

I have seen two arguments advanced by detractors of shared parenting that are essentially a blanket condemnation of shared parenting arrangements.  The first of these is that kids need the stability of a single home base rather than two separate homes.  The second is that children need to form an attachment with a primary parent.  Neither of these assertions is well-supported by social science in this context.  Both are based at least in-part on a monotropic version of attachment theory that theorizes that children need to have a primary attachment figure.  This theory has not withstood the test of time (The South Dakota Parenting Time Guidelines are also based on this outdated attachment concept).

The data is clear regarding what parenting arrangements tend to produce the best outcomes.  If we look at real-world children, we find that they tend to fare best in the following family structures, in this order: (1) two married parents, (2) parents with a shared parenting arrangement, (3) a primary residential parent with a highly involved non-residential parent, and (4) a primary residential parent and an uninvolved non-residential parent.

I believe there are some questions that still need to be answered regarding very young children, but I have found the research trying to suggest a detriment in shared parenting situations to be quite speculative and unconvincing, especially in light of the other apparent advantages of having both parents heavily involved.

In situations involving two high-quality parents who cannot live together anymore, shared parenting is often the best arrangement for the children. 

Does the success of shared parenting suggest that it should be ordered in most cases? 

Correlation is not the same as causation.  The fact that shared parenting often works so well is almost certainly due in large part to co-occuring factors that result in shared parenting arrangements.  Most shared parenting arrangements are the result of settlements between parents that are relatively low-conflict, willing to cooperate for the sake of their children, and economically advantaged.  These factors are also highly predictive of child outcomes in and of themselves.  Forcing parents without these traits into shared parenting arrangements is unlikely to produce the same outcomes (although it may still be the best option).

Another common theme of any policy debate regarding shared parenting is the parade of horrible statistics demonstrating that children whose fathers are not involved tend to fare significantly worse in life.  The implication is supposed to be that a shared parenting presumption will fix that.  The problem with this line of reasoning is that the majority of parents who are not involved with their children are not involved because they are crummy parents who are either disinterested, incarcerated, drug or alcohol dependent, or just not good at parenting.  Crummy parents leads to crummy outcomes for children.  Our legal system does create a barrier for many parents, and this should not be overlooked.  But, the legal system is certainly not the primary factor behind the parade of horrible statistics.

When is shared parenting a bad idea?

Shared parenting is likely not the optimal parenting option in the following situations:

  • When it’s logistically impractical.  Shared parenting can be logistically impractical due to schedules or distance.  Once a child is of school age, the child needs to be in the same community for school about nine months out of the year.  This makes shared parenting impractical when parents live a significant distance apart.  If the work schedule of a parent is highly irregular, unpredictable, or simply too time-consuming, that can also make shared parenting impractical.
  • When it will perpetuate domestic violence and coercive control.  Abusers can and do use children to hurt and control an ex.  Women are also very capable of the coercive control aspect of this dynamic.
  • When it will result in excessive conflict.  If the parenting arrangement results in substantial and ongoing conflict between the parents or a parent and child, it is likely to be detrimental to the children.  This should not be used to brush aside shared parenting too quickly though, because conflict can decrease as time goes on.
  • When one parent is just not very good.  I encompass a lot under this factor, and emphasize that shared parenting is only a good idea when both parents are good parents.  Some things that can detract from parenting ability include drug and alcohol use, abusive behavior, neglectful behavior, disinterest in parenting, mental illness, poor morals, and an inability to work with the other parent on matters involving the children.

How does shared parenting interact with child support?

In South Dakota, shared parenting does not mean that there is no child support.  In such situations, child support is calculated using the “shared parenting cross-credit” described at SDCL 25-7-6.27.  Basically, the parent with the higher income will end up paying support to the other parent, unless there is a reason to deviate from the prescribed amount.

Unfortunately, child support considerations can and do motivate parents’ negotiations regarding custody.  Some parents are motivated to try to obtain shared custody just to get themselves out of child support.  I have seen a father who had not taken any initiative to see his kids in over a year (despite the fact that he could have easily done so) try to modify custody to get shared parenting.  His obvious motivation was child support.  I have also seen multiple parents who did not want to allow more time to the other parent because it would impact the child support they received.  However, although child support motivates some parents, I do not believe it is the primary motivation for most people when deciding custody issues.

Does one parent have to be designated as the primary parent? 

South Dakota law does not require that any parent be named as “primary.”  I have written many custody agreements without any such language.  Who gets to claim the child for various tax purposes needs to be resolved, but that does not mean someone needs to be designated as the primary parent.

I would not have even thought to include this topic if I had not received a call from a prospective client who had been advised by both an attorney and a mediator that someone had to be named as the primary parent, even though he and his wife were in agreement on equally shared parenting.  This, and criticism by the mediator of the schedule they had chosen, (a 2-2-3 schedule that also made sense) was on the verge of killing the reasonable parenting arrangement they thought they had agreed on.  In my opinion, these parties were done a significant disservice by the professionals they had been working with.

What is the law in South Dakota regarding shared parenting?

South Dakota courts can order shared parenting (joint physical custody), even over the objection of one or both parents.  In addition to the factors outlined in the Fuerstenberg v. Fuerstenberg case, courts are now supposed to consider factors listed at SDCL 25-4A-24 when a parent requests joint physical custody.  South Dakota does not have a legal presumption in favor of shared parenting.  The ultimate question for the court is what is in the child’s best interests.

Despite the long list of factors a court is to consider, the bottom line regarding custody decisions in South Dakota is that, for most practical purposes, they are based on whatever the individual judge hearing the case believes to be in the child’s best interests.  Unfortunately, this can vary significantly from judge to judge.  Some judges almost never order shared parenting in contested cases, and some judges order it in almost all cases absent a really good reason not to.  Appellate review borders on non-existent in custody cases because almost any result will be upheld as long as it appears that the court considered the factors it was supposed to.  Many mediators and custody evaluators also seem to be woefully unaware of the empirical research related to this topic.

My hope is that we can move towards a consistent and empirically-sound method of determining custody issues that results in better outcomes for the children involved.

DSS Sued by DOJ for Employment Discrimination

The United States Department of Justice has filed a federal lawsuit against the South Dakota Department of Social Services alleging employment discrimination against Native American job applicants.  You can view the DOJ press release here, and the federal court complaint here.

The complaint alleges that the Pine Ridge DSS office hired less-qualified white people rather than more-qualified Native American applicants. In particular, it alleges that the office hired a white woman fresh out of college rather than hiring Cedric Goodman, a Native American with a college degree and supervisory experience as a social worker.  The facts of the case date back to 2010, when Goodman made a complaint to the Equal Employment Opportunity Commission (EEOC).  The EEOC investigated and found “reasonable cause” to believe that discrimination had occurred.  After failing to reach any agreement for resolution with the State of South Dakota, the EEOC referred the matter to the DOJ, which brought the suit.

The facts presented so far, and the fact that the EEOC already essentially found against DSS, certainly do not look good for the State.  But, it would be remarkably stupid for the State to have not settled the case through discussions with the EEOC if it did not believe it could justify its actions.  It will be interesting to see what justifications are offered.

I note that the Pine Ridge DSS office handles economic assistance, but does not handle child abuse matters.

ICWA Cases Update

Since the BIA indicated its intention to publish new regulations regarding the Indian Child Welfare Act (ICWA), there have been at least five lawsuits filed challenging various aspects of the federal Indian Child Welfare Act (ICWA), state versions of that law, or the new BIA Guidelines upon which the proposed regulations are based.  I previously commented on two of them.  I have been too busy to stay entirely up-to-date on all of these cases since, but some basic information and links regarding them are below.

One of the best ways to keep up with what is going on is to follow the blogging of Kate Fort on Turtle Talk.  Ms. Fort is a law professor at Michigan State University where the ICWA Appellate Clinic is assisting with the response to most of these cases.  This October 19 Memo by the ICWA Defense Project provides a quick update on the cases, and many filings from the cases are available on this Turtle Talk page.  My brief description of each case is below.


  • Filed May 27, 2015 in federal court in the Eastern District of Virginia.
  • Challenges the new guidelines and some parts of ICWA itself.
  • The claims in the Complaint of D.V., N.L., T.W., and Philip (Jay) McCarthy were dismissed without prejudice by stipulation.  No other significant rulings yet.


  • Filed June 3, 2015 in federal court in the District of Minnesota.
  • Challenges the version of ICWA enacted in Minnesota STATE law, particularly as it relates to notice in a voluntary adoption.
  • The Court denied the request for a preliminary injunction for two reasons.  It found that the Minnesota ICWA allowed for the parents to remain anonymous as part of their notice, and (2) the Tribe pledged not to intervene in the adoption.  In light of these facts and rulings, I would not be surprised if the case was eventually dismissed.


  • Filed July 7, 2015 in federal court in the District of Arizona.
  • Challenges the New Guidelines and some aspects of the ICWA.
  • This suit is backed by the Goldwater Institute, so it is a relatively well-funded and well-planned attack on the New Guidelines and parts of ICWA.
  • No significant rulings yet.
  • Rather ironically, much of the argument put forth in the Federal Defendants’ Motion to Dismiss is essentially that the New Guidelines are not binding and state courts don’t have to follow them.  Many of the citations are to state court cases that proponents of the New Guidelines believe the state courts got wrong.


  •  Filed August 18, 2015 in federal court in the Northern District of Oklahoma.
  • Challenges the version of ICWA enacted in Oklahoma STATE law, particularly as it relates to notice to tribes in a voluntary adoption.
  • No significant rulings yet.

5) C.E.S. v. NELSON

  • Filed in federal Court in the Western District of Michigan on September 29.
  • Challenges the version ICWA enacted in Michigan STATE law, particularly the extra limitations in the state law regarding declining to transfer a case to tribal court.
  • The federal case is the latest in a string of litigation.  The Michigan Court of Appeals had just determined that the best interests of the child is not factor that can be considered when deciding whether to transfer and ordered that the case be transferred.
  • The Plaintiffs received an immediate ex parte temporary restraining order preventing the transfer of their adoption case to tribal court.  The Court will consider the case again tomorrow (October 21, 2015) and weigh whether to issue a preliminary injunction.

Below are a few of my very quick thoughts:

  1. I don’t think the actual federal ICWA statute is in much danger.  However, aspects of the aggressive interpretation of that statute preferred by many tribes, and being pushed by the current administration at the BIA, are much more vulnerable.
  2. The key issues in both Minnesota and Oklahoma cases previously mentioned is the rights of tribes to be notified of an involved in voluntary adoption proceedings.  The state laws at issue reflect the interpretation of the federal ICWA from the proposed regulations.  These are cases where the interests of the Tribe are in direct conflict with the interests of the members of the Tribe (biological parents).
  3. One issue that is lurking but is not directly being litigated right now is to what extent Tribes can assert their influence over members who want nothing to do with the Tribe.  Many people are enrolled as children rather than by choice as adults.  Additionally, many tribes (e.g. the Cherokee) are making any lineal decedent of a member eligible for membership, meaning people who are less than 1% genetically Indian can be members.  In the Oklahoma case above, at least one parent was not even aware that she was a tribal member until it screwed up her preferred voluntary adoptive placement.  It is clear the biological parents in that case want nothing to do with the Tribe.  In another Oklahoma case, the biological father tried to revoke the tribal membership of himself and his child to avoid the application of ICWA, but the case was decided on other grounds when the Oklahoma Supreme Court decided to disregard the New Guidelines.  (In re M.K.T., C.D.T., and S.A.W.).