District of South Dakota

DOJ Amicus Brief in SD ICWA Class Action Case

Kate Fort3 Comments

The United States came in strongly on the side of the tribes and tribal families for both the enforcement of ICWA and meaningful due process.

Here.

Thus, from the very start of an emergency removal, Section 1922 requires state courts, agencies, and officials to actively investigate and evaluate whether the emergency situation has ended. Given the statutory requirements for oversight and “immediate” action, this ongoing obligation cannot be deferred for weeks or months until the next scheduled hearing occurs.

***

The interest that parents have in the custody of their children is not to be lightly interfered with, even following an emergency situation. While an emergency proceeding such as the 48- hour hearing may not permanently deprive parents of their custody rights, even a temporary deprivation of physical custody requires a prompt and meaningful hearing.

Memorandum in support of leave to file amicus here.

Motion for Leave to File here.

Update — The court granted the motion the next day:

123 DCT Order Granting US Motion

Previous coverage here.

Eighth Circuit Briefs in Lee v. Cleve Her Many Horses (Challenge to Oglala Sioux Tribal Govt.)

Matthew L.M. Fletcher1 Comment

Here:

Lee Opening Brief

Cleve Her Many Horses Answer Brief

Tribal Appellees Answer Brief

Lee Reply Brief

Lower court materials here.

Oglala Sioux Tribe Evidentiary Exhibits Supporting Motions for Partial Summary Judgment

Matthew L.M. Fletcher1 Comment

Here are the materials in Oglala Sioux Tribe v. Van Hunnik (D.S.D.):

Exhibit 1 (Hearing Transcripts) 502 pp

Exhibit 2 (Custody Orders) 113 pp.

Exhibit 7 (ICWA Affidavits) 145 pages

Exhibit 8 (Petitions for Temp Custody) 7 pages

The motions are posted here.

Federal Court Grants Motion to Seal Evidence re: Judge Davis in Oglala ICWA Class Action

Matthew L.M. Fletcher1 Comment

Here are the updated materials in Oglala Sioux Tribe v. Van Hunnik (D.S.D.):

112 DCT Order Granting Motion to Seal

113 OST42(MotionToUnseal)

Related post here.

Two Motions for Partial Summary Judgment in Oglala Sioux Tribe v. Van Hunnik

Kate Fort3 Comments

Brief in Support of First Motion (July 2014)

Statement of Undisputed Facts (First Motion)

As a result of the fact that (a) Defendants allowed no testimony at 48-hour hearings, (b) Defendants allowed no cross-examination at 48-hour hearings, (c) often the only questions asked of the parents in a 48-hour hearing were for purposes of identification and to see if they understood their rights, and (d) Defendants never conducted the inquiries required by 25 U.S.C. § 1922, Defendants’ 48-hour hearings were completed rather quickly. Judging from the length of the transcripts that were produced, the average length of time it took to complete a 48-hour hearing, Plaintiffs estimate, was under four minutes. A number of these hearings appear to have been completed in about sixty seconds.

The brief goes on to describe the many, many individual hearings where children were kept in DSS care for 45 or 60 days with absolutely to no evidence or testimony as to why.

Due Process Motion (Second PSJ)

Due Process Undisputed Facts

Update in South Dakota ICWA Class Action — Is Judge Davis Concealing Evidence?

Matthew L.M. Fletcher1 Comment

Here are new pleadings in Oglala Sioux Tribe v. Van Hunnik (D.S.D.):

99 Judge Davis Response

100 Oglala Sioux Tribe Reply Brief

An excerpt:

Plaintiffs possess a document that strongly suggests that Judge Davis is concealing information prejudicial to his case. If Plaintiffs are correct, then the Court will need to determine whether that document and the brief that Plaintiffs are filing under seal should be unsealed, whether any sanctions against Judge Davis are warranted, and whether Judge Davis should be ordered to disclose any other incriminating evidence that he may be concealing. For now, Plaintiffs will respond to Judge Davis’s brief as if the injurious evidence that Plaintiffs have in their possession does not exist and will await the Court’s ruling on that matter.

101 Oglala Sioux Tribe Motion To File Under Seal

OST’s second motion to compel is here.

 

Second Motion to Compel in Oglala Sioux Tribe v. Van Hunnik

Matthew L.M. Fletcher1 Comment

Here:

98 Plaintiffs Motion to Compel

An excerpt:

The only information that Interrogatory No. 11 seeks to discover is whether Judge Davis discussed any 48-hour procedures with other judges on the Seventh Judicial Circuit. It is difficult to imagine an interrogatory more related to Plaintiffs’ burden of proof than Interrogatory No. 11. See Disc. Op. at *6 (“In this case, in order to be successful, plaintiffs must prove the defendants engaged in policies, practices and customs which violate the plaintiffs’ constitutional rights.”).

Materials on prior motion to compel is here.

Federal Denies Motion to Suppress in Lower Brule Sioux Reservation Synthetic Marijuana Prosecution

Matthew L.M. Fletcher

Here are the materials in United States v. Long (D.S.D.):

74 MJ R&R

103 DCT Order Adopting Mj R&R

Federal Judge Orders South Dakota Judges to Comply with Subpoenas in ICWA Class Action

Matthew L.M. Fletcher1 Comment

Here are the newest materials in Oglala Sioux Tribe v. Van Hunnik (D.S.D.):

We posted the motion to compel and the order to show case here.

87-1 Plaintiffs Exhibits

88 Judge Davis Response

89 Non-Party State Judges Response

90 Plaintiffs Reply

95 DCT Order Granting Motion to Compel

Prior posts here (denial of motions to dismiss), and complaint here.

Eighth Circuit Affirms Injunction against South Dakota Ban on Native Prisoner Tobacco Use

Matthew L.M. Fletcher

Here is the opinion in Native American Council of Tribes v. Weber. An excerpt:

In this appeal, we consider the South Dakota Department of Corrections’ (“SDDOC”) decision to prohibit tobacco use by Native American inmates during religious activities. In 2009, the Native American Council of Tribes (“NACT”) and South Dakota Native American inmates Blaine Brings Plenty and Clayton Creek (collectively “inmates”) brought suit against 1 prison officials from the SDDOC (collectively “defendants”)2 claiming that the tobacco ban substantially burdened the exercise of their religious beliefs in violation of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc-1(a). After a three-day bench trial, the district court granted 3 injunctive relief to the inmates and directed the parties confer regarding a revised tobacco policy. On failure to agree, the district court entered a remedial order that, among other things, limited the proportion of tobacco in the mixture distributed to inmates for religious purposes to no more than one percent. The defendants appeal the grant of injunctive relief, including the remedial order. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

Briefs here:

South Dakota Opening Brief

Native American Council Brief

US Amicus Brief

South Dakota Reply Brief

Lower court materials are here and here.

Other posts are here, here, and here.