Turtle Talk

Decision here.

The Cheyenne River Sioux Tribe filed a writ of mandamus to the South Dakota Supreme Court, trying to stop the practice of the lower courts using 25 USC 1922 to justify ignoring ICWA’s requirements for weeks after a removal of a child. The Supreme Court dismissed the writ.

In this case, the original removal was on July 6. At a hearing on July 23, the judge stated that the hearing was a “continuation of the emergency hearing, and that ICWA placement preferences were not yet applicable.” The Supreme Court upheld this decision, and the inapplicability of ICWA to emergency or temporary custody proceedings.
After the court justified ignoring the plain language of the section (applying it to all Indian children, and ignoring the “imminent physical damage or harm” requirement of a 1922 action), the court went on to state:

Tribe also asserts a violation of state law in the temporary custody hearing based upon an alleged lack of evidence of a need for temporary custody as required by SDCL 26-7A-18. Tribe ignores, however, that the temporary custody hearing proceeded on the State’s petition for temporary custody and the accompanying police report and ICWA affidavit from a DSS specialist . . . While these documents might not constitute evidence within the normal bounds of the Rules of Evidence, those rules are not applicable at a temporary custody hearing.

It would be interesting to know what rules do apply to temporary custody hearings in South Dakota.