District of South Dakota – Page 18

Oglala Sioux Tribe v. Van Hunnik et al.: Class Action Suit to Force South Dakota Judges to Comply with Indian Child Welfare Act

March 21, 2013Matthew L.M. Fletcher6 Comments

Here is the complaint, to be filed today:

From the complaint:

Congress passed the Indian Child Welfare Act of 1978 (ICWA) in part because officials in South Dakota and other states were removing scores of Indian children from their homes based on insufficient evidence, and in perfunctory and inadequate hearings, in violation of federal law. Yet today, despite the added protections of ICWA, officials in Pennington County, South Dakota are removing scores of Indian children from their homes based on insufficient evidence, and in perfunctory and inadequate hearings, in violation of federal law.

Attached to this complaint as “Exhibit 1” is the transcript of one such Pennington County hearing. This hearing, involving Plaintiff Madonna Pappan, her husband, and their two children, lasted little more than sixty seconds. The court did not permit the Pappans to see the petition that had been filed against them by state officials. When Mr. Pappan asked what he was permitted to discuss, the court changed the subject and, a few seconds later, terminated the hearing. The court immediately entered an order (attached as “Exhibit 2”) which found that “active efforts have been made to provide remedial services and rehabilitative programs” to the Pappans, and that taking the Pappan children away from their parents “is the least restrictive alternative available,” even though no evidence was introduced during the hearing on those issues. The order stripped the Pappans of custody over their children for at least sixty days and gave that custody to the officials who had filed the secret petition. As discussed below, Plaintiffs Rochelle Walking Eagle and Lisa Young, like many other Indian parents in Pennington County, were treated similarly during their hearings, and their children were removed from their custody. This lawsuit seeks a speedy end to such a disgraceful process.

Remedial Order re: South Dakota Prison Ban on Tobacco

January 28, 2013Matthew L.M. Fletcher4 Comments

The case, once again, is Native American Council of Tribes v. Weber (D. S.D.):

DCT Remedial Order

The court previously issued an order explaining how the ban violates federal religious freedom rights here.

Since the prison system could not agree with the prisoners on a way to craft an injunction, Judge Schreier simply issued an order stating, “[D]efendants are enjoined from banning tobacco used during Native American religious ceremonies.”

Update in Columbe v. Rosebud Sioux Tribe: Tribal Court Has Jurisdiction to Rule on Gaming Management Contract

January 21, 2013Matthew L.M. Fletcher2 Comments

Here are the materials in Columbe v. Rosebud Sioux Tribe (D. S.D.):

DCT Order Granting RST Motion

Columbe Motion for Summary J

RST Cross Motion for Summary J

Columbe Response

An excerpt:

Colombe now asks this Court to rule on the sole remaining issue from this Court’s September 23, 2011 Opinion and Order: Whether the Tribal Court had jurisdiction to hold that the oral modification to the NIGC-approved management contract was void. Colombe argues that the NIGC has the sole, exclusive authority to determine whether modifications to NIGC-approved management contracts can have any legal effect. Doc. 49 at 6-7. Colombe also argues that Defendants’ Tribal Court suit is prohibited because IGRA does not authorize a private cause of action. Doc. 49 at 8. Defendants counter that the Rosebud Sioux Tribal Supreme Court had jurisdiction to rule on the legal validity of the oral, unapproved modification to the approved management contract after Colombe raised the modification as a defense in the Tribe’s underlying contract suit. Doc. 59; Doc. 60. Defendants also assert that its Tribal Court suit is not for a “claimed IGRA violation” and therefore does not need to be authorized by the IGRA. Doc. 57 at 19.

Here are the materials on the Sept. 2011 order, and on the motion for reconsideration.

Plains Commerce Bank Redux — Federal Court Orders Exhaustion on Claims Not Decided by Supreme Court

January 3, 2013Matthew L.M. Fletcher

Here are the materials in Plains Commerce Bank v. Long Family Land and Cattle Co. (D. S.D.):

DCT Order Requiring Tribal Court Exhaustion

Long Family Tribal Court Complaint

Plains Commerce Federal Court Complaint [plus tribal court docs]

Plains Commerce Motion for TRO

Plains Commerce Motion for Summary J

Long Family Opposition

Plains Commerce Reply

You may recall from Justice Pommersheim’s opinion from way back in the last decade that Plains Commerce only challenged the discrimination claim against it, not the bad faith or breach of contract claims. And since the money damages verdict was a general verdict, any of the surviving claims may support the verdict.

Federal Indictment for Failure to Comply with Tribal Court Child Support Order Dismissed

December 20, 2012Matthew L.M. Fletcher

Strange case, turning on a lack of personal jurisdiction in the Oglala Sioux Tribal Court.

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

DCT Order Dismissing Indictment

Lopez Motion to Dismiss

US Opposition Brief

Lopez Reply M

J R&R Recommending Denial of Motion to Dismiss

Lopez Objection to MJ R&R

IHS Changes Venue in Wrongful Death Suit from Western Division to Northern Division of District of South Dakota

December 19, 2012Matthew L.M. Fletcher1 Comment

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

Archambault Redacted Complaint

DCT Order Granting US Motion to Change Venue

Federal Court Declines to Suppress Evidence Obtained in Search by Cheyenne River Sioux Tribal Police

December 11, 2012Matthew L.M. Fletcher

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

DCT Denying Farlee Motion

Farlee MJ R&R

Race Discrimination Claim at Federal Training for BIA Officers Dismissed

November 5, 2012Matthew L.M. Fletcher

Here is the opinion in Fuller v. Salazar (D. S.D.):

Fuller v Salazar

Interesting opinion.

An excerpt:

Plaintiff Howard J. Fuller, III (“Fuller”), acting pro se, sued Defendant Kenneth L. Salazar, Secretary of the United States Department of the Interior, claiming employment discrimination. Doc. 1. Fuller asserts that, while at the Indian Police Academy of the Bureau of Indian Affairs and while training as a police officer, Fuller was subject to actionable racial discrimination because of his Native American heritage. Fuller also claims that adverse employment action later was taken against him because of his race as an American Indian. Doc. 1. Defendant filed a motion for summary judgment, Doc. 23, which this Court grants for the reasons explained below.

Cheyenne River Sioux Tribe Members Sue over Lake Oahe Dam Taking

October 29, 2012October 29, 2012Matthew L.M. Fletcher2 Comments

Here is the complaint in LeBeau v. United States (D. S.D.):

LeBeau v US Complaint

Excerpts:

Plaintiffs Casimir L. LeBeau, Clarence Mortenson, Raymond Charles Handboy, Sr., and Freddie Lebeau (collectively “Plaintiffs”), on behalf of themselves and the putative classes set forth below, bring this Complaint against the United States of America (“Defendant”), and bring this claim based upon an unlawful taking without just compensation of thousands of acres of land owned by Plaintiffs and other individuals. Plaintiffs seek declaratory relief ordering Defendant to perform its fiduciary duties as trustee of the individual Plaintiffs’ trust monies pursuant to federal law and common law trust principles, including an accounting of the monies owed to Plaintiffs and the putative classes.

***

1. Nearly seventy years ago, Congress enacted a law authorizing the Army Corps of Engineers to develop a number of water control projects. Among these projects was the Pick Sloan Missouri River Basin Project (the “Pick-Sloan Project”), which involved the construction of six hydroelectric dams in the upper Missouri river basin. One of these dams, the Oahe Dam, impounds Lake Oahe, an artificial reservoir stretching almost the entire distance from Pierre, South Dakota, to Bismarck, North Dakota.

2. In building the Oahe Dam and creating Lake Oahe, the United States flooded a vast area of North and South Dakota, including over 104,420 acres of land, some of which was owned by the Cheyenne River Sioux Tribe (the “Tribe”) and some of which was owned in allotments or in fee by individual members of the Tribe (the “Individual Landowners”). The Individual Landowners were required to evacuate their homes and abandon their land and its valuable resources to make way for an energy project benefiting only those downriver.

3. The Oahe Dam destroyed more Indian land than any other United States public works project. Over 180 families – 30% of the tribal population – were forced to leave their homes and sever the profound cultural connection that they had to the land.