Motions to Reconsider in Oglala Sioux Tribe v. Van Hunnik


Davis Brief in Support (April 2015)

Davis Motion to Reconsider (April 2015)

DSS Brief in Support (April 2015)

DSS Joinder in Arguments of other Defendants (April 2015)

DSS Motion to Reconsider (April 2015)

Vargo Brief in Support (April 2015)

Vargo Brief in Support Revised (April 2015)

The order at issue is here.

Stephen Pevar on the Oglala Sioux v. Van Hunnik Victory


All of the cards were stacked against the parents in these proceedings and the parents lost 100 percent of the time.

That’s right, you didn’t misread that. The state won 100 percent of the time, which isn’t surprising given that only the state was allowed to present any evidence and all of that evidence was submitted secretly to the judge. But two South Dakota Indian tribes — the Oglala Sioux Tribe and the Rosebud Sioux Tribe — and three Indian parents fought back.

South Dakota Tribes Win Federal ICWA Case, Oglala Sioux v. Van Hunnik

The 45 page order granting partial summary judgment is HERE, with a judgment order granting injunctive and declaratory relief forthcoming in May.

The court finds that Judge Davis, States Attorney Vargo, Secretary Valenti and Ms. Van Hunnick developed and implemented policies and procedures for the removal of Indian children from their parents’ custody in violation of the mandates of the Indian Child Welfare Act and in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

The case directly addressed section 1922 emergency removal standard of evidence and return of the child; and due process claims at those emergency hearings (48-hour hearing) of notice, the right of parents to present evidence, to cross-examine witnesses, attorney representation, and a decision based on evidence at that hearing.

Among many other things, the judge addresses both the old and new Guidelines (which specifically mentioned this case):

A simple examination of these administrative materials should have convinced the defendants that their policies and procedures were not in conformity with ICWA § 1922, the DOI Guidelines or the Guidelines promulgated by the South Dakota Unified Judicial System. Indian children, parents and tribes deserve better.

The order grants summary judgment on  the ICWA violations AND the Due Process ones:

Judge Davis and the other defendants failed to protect Indian parents’ fundamental rights to a fair hearing by not allowing them to present evidence to contradict the State’s removal documents. The defendants failed by not allowing the parents to confront and cross-examine DSS witnesses. The defendants failed by using documents as a basis for the court’s decisions which were not provided to the parents and which were not received in evidence at the 48-hour hearings.

This is amazing–congratulations and many thanks to all involved. Especially to the families.

Previous coverage here. Summary judgment briefs and exhibits here.