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.

The Guardian Article on ICWA

Fairly long read here.

Hanna is representing two South Dakota tribes in a class action lawsuit filed against state officials for systematically violating the act. Last week, the Bureau of Indian Affairs issues updated ICWA guidelines for state courts for the first time since 1979, specifically citing the lawsuit.

In December, US attorney general Eric Holder announced a new initiative to “actively identify state-court cases where the US can file briefs opposing the unnecessary and illegal removal of Indian children from their families and their tribal communities.” Holder promised to strengthen the act by ensuring compliance with the federal law with the caveat that “barriers erected over centuries of discrimination will not be surmounted overnight.”

Many native families and advocates say the commitment is long overdue. After decades of assimilation-oriented policies, ICWA was passed in 1978. By then, one in four Native American children were removed from their families and placed in boarding schools, adoption or foster care placements.

Despite the law’s intentions, the removal rate of all American Indian children increased to 35% over the following decade, 85% of whom were placed in non-Indian homes. Thirty-five years later, these children remain staggeringly overrepresented in state foster care placements across the country.

Thanks to MM for the heads up.

NPR Coverage of DOJ’s Commitment to Enforcing the Indian Child Welfare Act

Here is “Justice Department Vows To Fight States That Violate Indian Child Welfare Law.”

An excerpt:

This summer the Justice Department intervened for the first time in its history in a federal district court case in South Dakota, concluding that the state has violated the rights of Native American parents.

Two of the state’s largest tribes argued that the state has removed children in hearings where parents were rarely allowed to speak and often lasted less than 60 seconds. The children were then placed indefinitely in largely white foster homes.

Stephen Pevar, a senior staff attorney at the American Civil Liberties Union, which brought the suit along with the Oglala Sioux and Rosebud Sioux tribes, called the hearings “kangaroo courts.”

“There was nothing — nothing — that any of the parents did or could have done,” Pevar said. “It was a predetermined outcome in every one of these cases.”

Oglala Sioux Tribe v. Van Hunnik Briefing Complete


Brief in Support of First Motion (July 2014)

Statement of Undisputed Facts (First Motion)

Due Process Motion (Second PSJ)

Due Process Undisputed Facts

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

DOJ Amicus Brief

128 Defendants Response to 1922 Motion

129 Defendants Response to Due Process Motion



State Judges Respond to Oglala Sioux Tribe Motions for Summary Judgment

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

128 Defendants Response to 1922 Motion

129 Defendants Response to Due Process Motion

The motions for summary judgment are here.

The evidentiary exhibits are here.

The DOJ amicus brief is here.

NICWA Webinar on Oglala Sioux v. Van Hunnik by Stephen Pevar

Information here.

On August 27, 2014, members will join Stephen Pevar, senior staff attorney with the American Civil Liberties Union (ACLU), for this webinar as he gives an update on the ICWA compliance class action lawsuit, Oglala Sioux Tribe v. Van Hunnik. The lawsuit was filed by the ACLU against South Dakota state and local officials who have an alleged history of violating the ICWA, resulting in devastating ramifications for American Indian children and families in the state. Mr. Pevar will also discuss the overarching goals of the lawsuit and the implications this case has for ICWA.

To register, contact Ava Hansen NICWA’s member relations manager at