The Eighth Circuit Court of Appeals has overturned the decision of Federal District Court Judge Jeffrey Viken holding that the due process and ICWA rights of parents were being violated in abuse and neglect proceedings in Pennington County, South Dakota. However, the appeals court decision was not based on an analysis of constitutional rights or ICWA, but rather on the absention doctrine. Under this line of reasoning, it does not matter whether the Plaintiffs’ constitutional rights were being violated because that issue can only be decided by the state court system.
Hopefully the changes that occurred as a result of the case remain intact. But, I know from firsthand experience that the due process rights of non-Native American parents continue to be violated at the temporary custody stage. As best I can tell, there has not been a contested evidentiary hearing at the 48-hour stage in a non-ICWA case in over a year. It is unfortunate that we will not have some strong precedent on the topic and will need to litigate it on a case-by-case basis. Arguing such unsettled constitutional issues is unfortunately not something that most abuse and neglect practitioners here seem able or willing to do.
Linked below is the Eighth Circuit opinion, and the District Court opinion that addressed abstention.