District Court of South Dakota

Motion and Briefing for Partial Summary Judgment in Oglala Sioux v. Fleming (Van Hunnik)

Kate Fort

This filing is part of the ICWA class action case in South Dakota over the interpretation of 25 USC 1922 (emergency jurisdiction):

The third reason why this Court’s ruling on § 1922 has been inoperative is because the State’s Attorney for Pennington County, Defendant Mark Vargo, and the person Mr. Vargo has assigned to handle abuse and neglect cases in Pennington County, Deputy State’s Attorney Roxanne Erickson, see Erickson Dep. at 5-7, is failing to properly employ the federal standard. Indeed, Mr. Vargo’s interpretation of § 1922 threatens to forever prevent Plaintiffs from obtaining the benefit of this Court’s ruling on § 1922.6 The instant motion for partial summary judgment seeks to remove this final obstacle to the implementation of § 1922 in Defendants’ 48-hour hearings.

Plaintiffs deposed Ms. Erickson on May 25, 2016. Ms. Erickson testified that she interprets the word “harm” in § 1922’s standard “physical damage or harm” as including emotional harm. Id. at 131 made that ‘harm’ would also include emotional harm to the child. . . . [T]hat is how I would read it, that you have to show some form of harm which could include emotional harm.”). Thus, Defendant Vargo continues to use the state standard rather than the federal standard, given that Ms. Erickson interprets the federal standard to authorize DSS to consider emotional harm in determining whether to seek continued custody of an Indian child at the 48-hour hearing.

Motion for Partial Summary Judgment

Memorandum in Support of S.J.

Affidavit in Support of Motion

Statement of Undisputed Facts

Ex. 1-Vargo

Ex. 2-Vargo

Ex. 3-Vargo

Ex. 4-Vargo

Ex. 5-Vargo

Ex. 6-Vargo

8th Circuit Finds Tribal Cop Working under BIA Contract was Federal Officer when Assaulted

Sarah M Donnelly

Link to memorandum in re U.S. v. Janis (Jan. 15 2016) here.

Defendant’s brief here and reply brief here.

United States’ brief here.

Previous coverage here.

Defendant raised two questions on appeal: (1) whether officers in the Dept. of Public Safety on the Pine Ridge Reservation are federal officers authorized to carry out tribal law and (2) whether the court erred in instructing the jury to find Officer Mousseau a federal officer as a matter of law.

The Eighth Circuit held that through the Indian Law Enforcement Reform Act a “638 contract” between the BIA and the Oglala Sioux Tribe explicitly required officers to enforce both tribal and federal laws.

However, it decided that the district court erred on jury instructions because although it was correct to rule as a matter-of-law that Oglala Sioux’s Public Safety officers were federal officers for the purpose of 18 U.S.C. § 111, it should have been up to the jury to determine whether Officer Mousseau was a Dept. of Public Safety officer at the time of the assault.  The Court determined the error was harmless, though, since evidence on record made it clear beyond a reasonable doubt that a rational jury would find Mousseau an officer when she responded to a complaint of illegal alcohol consumption at a home on the Reservation.

Silbernagel v. Standing Rock/Fort Totten School

Matthew L.M. Fletcher

This case, in the District Court for South Dakota, involves the question of whether the Standing Rock/Fort Totten Community School is entitled to tribal sovereign immunity or whether it has lost its tribal character. This is a discovery order opening up discovery on the question. The underlying question involves a tort claim against the school — sexual harassment.

dct-order-on-discovery

United States v. Killeaney — Sixth Amendment and the Dual Sovereignty Doctrine — A Circuit Split involving Tribal Law Enforcement & Tribal Courts?

Matthew L.M. Fletcher1 Comment

The District Court for the District of South Dakota recently declined to suppress evidence obtained in a criminal investigation at the Rosebud. This case has the potential to go to the Supreme Court (a circuit split already exists and another could arise) and could be a significant problem for tribal criminal law enforcement.

The defendant allegedly committed a crime on tribal lands, initially investigated by the tribal police and prosecuted in tribal court. The defendant made statements to police while being represented by a tribal public defender, who was not a lawyer or a law school graduate (however, the director of the tribal public defender office is a lawyer). The US would like to use those statements in the federal prosecution of the same offense. The question is when the defendant’s Miranda and the Sixth Amendment right to counsel attaches. If the CA8 reverses this decision and holds that they attach at the tribal court level, then there will be two circuit splits.

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