emergency hearings

Cheyenne River Sioux Tribe v. Honorable Jeff W. Davis: ICWA Case

Kate Fort5 Comments

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.

Memorandum from Judge in ICWA Case out of South Dakota’s Seventh Circuit

Kate Fort4 Comments

We would call this a shocking opinion in case #A12-245 for various reasons, but here is one excerpt:

First, the Tribe does not have a fundamental right to fairness under ICWA, even though the parents and children do. ICWA serves as a procedural prophylactic which permits, or compels, a state court to transfer a child custody proceeding to tribal court so that the tribe may exercise its inherent sovereignty over its tribal members. The Tribe, at its option, could invoke that that jurisdiction and have the case transferred into tribal court. However, it elected not to do so. Consequently, state law prevails in the 48-hour hearing, and Indian parents who appear before the Court are subject to those rules at that stage.

Of course, if ICWA doesn’t apply at the 48 hour hearing, it’s hard to figure out how the Tribe would even know to move to transfer the case.

This is one of those most ICWA hostile opinions we’ve read in a while–especially the parts about proceeding informally, and the endless loop the court creates in not applying ICWA in emergency hearings.