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.