Oglala Sioux Tribe

By Chief Joseph Brings Plenty, a former chairman of the Cheyenne River Sioux Tribe, teaches Lakota culture at the Takini School on the Cheyenne River Indian Reservation.

South Dakota SCT Issues ICWA Active Efforts Decision

December 19, 2012Matthew L.M. Fletcher

Here is the opinion in In re S.H.E.

An excerpt:

The record demonstrates that DSS actively attempted to reunify the family. The services provided to Father, in conjunction with DSS’s considerable efforts to help Mother1 and Mother2, satisfy the “active efforts” requirement under ICWA. Accordingly, the circuit court did not err in finding, beyond a reasonable doubt, that reasonable and active efforts were made to reunify the family.

Update in Oglala Sioux Voting Rights Act Case

September 28, 2012Matthew L.M. Fletcher

The federal court denied the state’s motion to dismiss. Here are the updated materials in Brooks v. Gant (D. S.D.):

South Dakota Motion to Dismiss

Plaintiffs’ Opposition

South Dakota Reply

DCT Order Denying Motion to Dismiss

The complaint is here.

The court previously denied a motion for preliminary injunction:

DCT Order Denying Motion for PI

The ACLU submitted an amicus brief:

ACLU Amicus Brief

Now, the plaintiff’s motion for summary judgment is pending:

Plaintiffs’ Motion for Summary J

WaPo on Tribal Concerns re: Keystone XL Pipeline

September 18, 2012Matthew L.M. Fletcher

Here, or here.

Frank Pommersheim on the Crazy Horse Malt Liquor Case

August 26, 2012Matthew L.M. Fletcher1 Comment

Frank Pommersheim has posted Part III of his South Dakota Law Review trilogy, The Crazy Horse Malt Liquor Case: From Tradition to Modernity and Halfway Back.

Here is the abstract:

Tasunke Witko, or Crazy Horse as he is known in English, is a revered nineteenth century warrior and spiritual leader of the Oglala Band of the Lakota (or Sioux) Nation. He is renowned for both his skills as a warrior and his high spiritual concern for the welfare of his people. He also often seems to stand apart as a mysterious, even mystical, individual. His picture was never taken by a photographer. He never went to Washington, D.C. to meet the “white fathers.” He never signed a treaty with the United States government. He never claimed to be a chief or tribal leader. He was ultimately killed in 1877, when he was held captive pursuant to his “surrender” at Camp Robinson in Nebraska. This, too, is shrouded in mystery.

Nebraska COA Decides ICWA Tribal Court Transfer Case

August 1, 2012August 1, 2012Matthew L.M. Fletcher1 Comment

Here is the opinion.

An excerpt:

Even if we had not found that Sellers failed to object to the parents’ motion to transfer in the county court, his assignment of error has no merit. He argues that the court abused its discretion by ordering a transfer to the tribal court when good cause was shown not to transfer the case. But the burden to prove good cause was on Sellers. See In re Interest of Leslie S. et al., 17 Neb. App. 828, 832, 770 N.W.2d 678, 682 (2009) (“party opposing a transfer of jurisdiction to the tribal courts has the burden of establishing that good cause not to transfer the matter exists”). And per our standard of review, we review the county court’s decision for abuse of discretion. There was testimony that the tribal court could convene for any necessary hearings in Hall County. Indeed, commentary to the Bureau of Indian Affairs’ guidelines specifically referred to the ability of tribal courts to alleviate hardship on the parties and witnesses “by having the court come to the witnesses” or by appointing members of the tribe who live outside of the reservation as tribal judges. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,591 (Nov. 26, 1979) (not codified). Furthermore, the tribal representative testified that the tribal court could always receive testimony from witnesses in Hall County via telephone or documentary evidence. Given this evidence, the county court did not abuse its discretion in finding that Sellers failed to prove that there was good cause to deny the transfer based on hardship to potential witnesses.

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

July 10, 2012July 10, 2012Kate 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.