South Dakota Supreme Court

Placement Preferences/Active Efforts (ICWA) Case from South Dakota Supreme Court

Kate Fort

InreMD

Footnote 4:

4. We are aware of the recent decision of the United States District Court for the Northern District of Texas holding parts of ICWA, including its placement preferences, unconstitutional. Brackeen v. Zinke, No. 4:17-cvoo868-0, 2018 WL 4927908 (N.D. Tex. Oct. 4, 2018). However, the decision may be appealed and ICWA has previously been upheld by the United States Supreme Court. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989). Moreover, we are not bound by the decision of the District Court in Texas and must presume that ICWA is constitutional. U.S. v. v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32, 83 S. Ct. 594, 597, 9 L. Ed. 2d 561 (1963) (noting that Acts of Congress have “strong presumptive validity’); State v. Rolfe, 2013 S.D. 2, ¶ 13, 825 N.W.2d 901, 905 (“Statutes are presumed to be constitutional[.]”).

The Father argued the state failed to provide active efforts when the children were not placed within the placement preferences. The Court did not agree with his argument.

South Dakota SCT Dismisses Appeal Challenging State Utility Approval of Keystone XL Pipeline

Matthew L.M. Fletcher

Here is the opinion:

in re keystone xl pipeline

South Dakota SCT Decides Estate of Ducheneaux v. Ducheneaux II

Matthew L.M. Fletcher

Here:

Opinion

Prior opinion here.

South Dakota Supreme Court Overturns Denial of Transfer to Tribal Court

Kate Fort1 Comment

Here.

We agree that the court’s denial of the request to transfer was improper. It is undisputed that the circuit court refused to hold a separate evidentiary hearing on the question of good cause. And the court’s commentary on the issue during the December 14, 2015 review hearing consists only of the following:

Well, it’s going to be the Court’s finding that the motion to transfer is not timely and it’s going to be denied in this case. I note this case is—was open last November, 2014. The [T]ribe’s apparently been aware of it for more than a year. No efforts were made to get it transferred before this time, and I—my real concern is, it just is contrary to the interests of the children to start over from square one after a year has proceeded in the matter, so that motion is going to be denied.

As noted above, in determining whether the motions to transfer were timely, the court was required to consider all the particular circumstances of this case, not simply the amount of time that had passed since the proceedings first began. See id. at 600. Although this case was over one year old, it had not yet reached final disposition. Without knowing the Tribe’s and Mother’s reasons for waiting to seek transfer, the circuit court necessarily did not consider all the circumstances of this case.

The court’s finding that transferring jurisdiction was not in the best interest of the Children is susceptible of the same criticism. As above, the absence of specific factual findings precludes meaningful review. The Tribe intervened and has been involved in this case since nearly its beginning. The Tribe has been represented at each of Mother’s review hearings. The circuit court did not identify any reason to conclude that transferring jurisdiction to the Tribe would have amounted to a “start over from square one[.]”

South Dakota SCT Decides Two Related Matters Involving Crow Creek Sioux Tribal Member Estate

Matthew L.M. Fletcher

Here are the opinions in Estate of Flaws (Tamara) and Estate of Flaws (Yvette).

South Dakota SCT Enforces Rosebud Tribal Court Judgment Against Estate of Former Elected Official

Matthew L.M. Fletcher

Here is the opinion in Rosebud Sioux Tribe v. Estate of Colombe.

An excerpt:

An estate appealed from a circuit court’s decision to grant comity to a Rosebud Sioux Tribal Court order. The order pierced a business’s corporate veil and held decedent personally liable for a judgment in favor of the Rosebud Sioux Tribe. We affirm.

Briefs:

Appellee’s Brief

Appellant’s Amended Brief

Reply Brief

Burden of Proof ICWA Case out of South Dakota

Kate Fort

Here.

In this case, Mother challenged the QEW and the burden of proof requirement for termination of parental rights. The concurrence is particularly useful:

The circuit court in this case found many of the facts beyond a reasonable doubt where that was not the correct standard of proof and failed to find certain facts beyond a reasonable doubt where applying that high standard is required. This may indicate that confusion exists on the applicable standards of proof in abuse or neglect proceedings, including those where ICWA applies. I write specially to clarify the standards of proof by which the court must issue certain findings.

The concurrence also explains that South Dakota is a state that requires active efforts to be proven beyond a reasonable doubt in a termination of parental rights. Contra State of New Mexico v. Yodell. B. (N.M. Ct App. 2015) 

South Dakota SCT Decides Matter Involving Shannon County (Pine Ridge) Jury Pools

Matthew L.M. Fletcher

Here is the opinion in Good Lance v. Black Hills Dialysis (S.D.). From the opinion:

Vera Good Lance sued Black Hills Dialysis, LLC and LeEtta Brewer (collectively, BHD) for negligence after suffering an injury from a fall while at BHD’s facility in Shannon County on the Pine Ridge Indian Reservation.1 A dispute arose between the parties about whether the circuit court should summon jurors from Shannon County or neighboring Fall River County. A 2009 standing order issued by the Seventh Circuit Presiding Judge required that all cases filed in Shannon County be venued in Fall River County. In accordance with this order, the circuit court ruled that it would summon Fall River County jurors. Good Lance, through her estate’s administrator Hilda Kills Small, requested this intermediate appeal. We reverse and remand for further proceedings.

 

South Dakota Supreme Court Reinstates Some Indian Child Sex Abuse Claims against Catholic Church

Matthew L.M. Fletcher

Here is the decision in Eagleman v. Diocese of Rapid City:

SC SCt Order

Prior decision here.

South Dakota Supreme Court Declines Jurisdiction over Challenge to Transfer of Trust Land

Matthew L.M. Fletcher

Here is the opinion:

Estate of Ducheneaux v Ducheneaux

An excerpt:

The Estate of Wayne Kenneth Ducheneaux appeals the Sixth Judicial Circuit Court’s denial of its motion for summary judgment and that court’s dismissal of the Estate’s action for lack of subject matter jurisdiction. The Estate argues Wayne Ducheneaux (the Decedent) lacked the requisite mental capacity, or was unduly influenced by Douglas D. Ducheneaux (Ducheneaux), when the Decedent transferred two quarter sections of Indian trust land located in Tripp County, South Dakota, to Ducheneaux. Although the Estate acknowledged the circuit court had no authority to directly return title of the trust land to the Estate, the Estate nevertheless asserts the circuit court had personal jurisdiction over Ducheneaux and, therefore, could have compelled Ducheneaux to make application to the Bureau of Indian Affairs to transfer the two quarter sections back to the Estate. We agree that the circuit court lacked jurisdiction over the parcels held in trust by the United States and affirm.