Prior post here.
Here is the Order Denying South Dakota’s Motion to Dismiss Rosebud and Oglala’s Complaint that South Dakota is failing to comply with the National Voter Registration Act.
Here is the Amended Complaint.
Previous post on this issue here.
Court page with oral arguments here.
I have delayed in posting this one mostly because I found this one particularly difficult, but I’ve referenced it in multiple presentations, so here it is. In essence, the child is a Lakota child, but due to COVID and tribal citizenship requirements and enrollment delays, ICWA did not apply to their case.
Red Cloud [Oglala Sioux ICWA Director] testified that he first met Mother the day before the hearing. He testified that he had consulted with his supervisor and that it was absolutely the intention of the tribe to intervene in the proceeding. When the State pointed out that the motion to intervene contained a reference to a stranger who was not a party to the proceedings, Red Cloud apologized for the error.
Red Cloud testified that because of staff difficulties and COVID-19, there were two years’ worth of cases that were not followed up on by the Oglala Sioux Tribe. He testified that the Bureau of Indian Affairs (BIA), which ordinarily signed off on tribal enrollments, had not done enrollments since March of 2020. When asked, however, whether Z.K. was “eligible for enrollment” in the Oglala Sioux Tribe, Red Cloud responded “Yes.”
On cross-examination, Red Cloud stated that it was hard to get enrollment certified because of the health issues of a BIA employee responsible for certification. Yet, Red Cloud testified that the tribe could determine whether somebody is a member or eligible for membership without certification by the BIA.
Red Cloud further stated that the Mother is at least half Native American regardless of whether she is a member of the Standing Rock Sioux or Oglala Sioux Tribe, and as a result, “there was no way that [the Court] can determine that [Z.K.] is not an Indian.” Red Cloud added, “[W]e need the time to figure this out.”
Obviously, that time didn’t happen and the Court found ICWA did not apply because the mother was not a citizen of Oglala. This is especially frustrating coming out of Iowa, which has an ICWA statute that attempted to define an “Indian child” as one that was recognized as such by her community. However, in 2007, the Iowa Supreme Court found that portion of the statute unconstitutional.
Lower court materials here.
Here are the materials in Easeley v. WLCC II (S.D. Ala.):
There is a lot going on in this case, including issues involving a GAL (best interests attorney) advocating for best interests rather than the child’s state interests and opposing transfer to tribal court, transfer to tribal court issues, and termination of parental rights issues. The Tribe made a solid run at trying to get the GAL removed for a stated interests attorney. South Dakota law is pretty clear that the appointed attorney for a child should be a BI attorney, and the Court stated:
We adopt this approach as it relates to a child’s attorney appointed in abuse and neglect proceedings pursuant to SDCL 26-8A-18. The child’s attorney appointed pursuant to the statute is required to advocate for the child’s best interest. However, when the attorney’s determination of what constitutes the child’s best interest conflicts with the child’s expressed wishes, the ethical obligations of the attorney require consultation with the child to insure that the child’s objectives are presented to the court, along with the basis for the attorney’s determination of the child’s best interest. This approach “gives priority to the paramount goal of discerning the child’s best interest while enabling the lawyer to advocate an opposing viewpoint without fear of ethical violation.” J.P.B., 419 N.W.2d at 392.
Ultimately the child did testify (which, ooof, if you read the opinion), and the Court affirmed the termination and the denial of transfer.