We posted the South Dakota Supreme Court’s opinion from December here.
Here are the briefs:
South Dakota Supreme Court
S.D. SCT Reverses Costs/Attorney Fees Award to American Indian Plaintiffs in Long-Running Tax Case
Here is the opinion in Pourier v. S.D. Dept. of Revenue and Regulation.
An excerpt:
Loren Pourier, the owner of a corporation that operates a gas station on reservation land, brought an action against the South Dakota Department of Revenue and Regulation (Department) to protest a state motor-fuel tax imposed on the corporation. This Court held the fuel tax was illegal in Pourier v. South Dakota Department of Revenue & Regulation (Pourier I), 2003 S.D. 21, 658 N.W.2d 395. Pourier then filed a motion for costs and attorneys’ fees pursuant to SDCL 10-59-34. The circuit court granted the motion. The Department appeals. We reverse.
South Dakota SCT Remands American Indian Probate Case to Allow Newly-Enrolled Heir to Reopen BIA Probate Decision
Here is the opinion in In re Estate of Flaws.
An excerpt:
Based upon the plain language of SDCL 29A-2-114 and the foregoing authorities, we hold that the trial court did not err in determining that the methods and time limits in the statute for establishing paternity are exclusive. A question remains, however, as to whether Yvette failed to comply with any of them. The trial court found that Yvette had petitioned the Department of the Interior, Bureau of Indian Affairs, Office of Hearings and Appeals to reopen Donald’s probate to include her as an heir. For that reason, the court initially took this matter under advisement to see if Yvette’s petition would be granted. The court subsequently determined it could take more than a year to have Yvette’s petition heard. For that reason, the court issued its decision and this appeal followed. The day after the filing of Yvette’s appellant’s brief, however, the Bureau of Indian Affairs tribunal issued an order directing any parties opposed to naming Yvette as an heir to Donald’s estate to show cause for their objections within thirty days. Thus, Yvette’s efforts to reopen Donald’s probate may still prove successful, permitting her to comply with SDCL 29A-2-114(c) to establish Donald’s paternity. In the interests of justice, therefore, we remand this matter to the trial court to wait for a reasonable time for the Bureau of Indian Affairs’ decision and to proceed accordingly.
South Dakota SCT Rules against ICWA Tribal Court Jurisdiction
In what appears to be a kind of factual opposite of Holyfield, the court held that tribal member grandparents cannot establish reservation domicile of off-reservation tribal member children two years after the beginning of state court proceedings.
Here is the opinion in Merrill v. Altman.
S.D. SCT Dismisses Boarding School Abuses Case
South Dakota SCT Finds “No Bias” in Case of Judge Who Referred to Indian Defending as “Go[ing] Native”
Here is the opinion in State v. Good Plume (h/t Legal Profession Blog).
An excerpt:
Defendant, a Native American, argues that he was denied due process in sentencing when the judge voiced a racial stereotype to describe his violent behavior under the influence of alcohol. The judge used the term “go native.” In defendant’s view, the remark was “improper” and “gave the impression of bias and prejudice” entitling him to resentencing before another judge. Although the term was ill chosen, upon examining the judge’s entire remarks, we detect no risk of actual bias based on objective and reasonable perceptions, and thus, we affirm.
State Supreme Court Outcomes: South Dakota
After Montana, North Dakota, and Alaska, we turn to South Dakota, another state with no intermediate appellate court.
Some observers would like to see more detail about the cases (a short description of the subject matter, whether tribes had filed amicus briefs, and how they fared if they did, for example). To this we can only say … it’s summer. There just isn’t enough time in the day.
Tribal interests have a 50 percent chance of prevailing in the South Dakota Supreme Court.
Here are the cases we looked at:
South Dakota Supreme Court Orders “Retirement” (or Six-Month Suspension without Pay) for Judge Openly Disgusted by Alleged Police Racism
Here is yesterday’s order in In re Fuller.
Here are his admissions about Indians:
The walls in Judge Fuller’s courtroom are lined with photographs and artwork. In order to accommodate the audio-visual system, if needed in his courtroom, Judge Fuller would remove three pieces depicting Native Americans. When the trial was over, Judge Fuller would hang the artwork back on the wall. When doing so he admits “saying, again in a smart aleck deal, this is where I hang my Indians.” Judge Fuller admits that the remark was completely inappropriate and claims that he apologized. He testified that the pictures of Native Americans in his courtroom were to demonstrate to Native American juveniles respect for their leaders.
Rapid City Judge Openly Disgusted by Racial Profiling by Local Police Could Be Removed by State Supreme Court
Here is the ABA Journal article, with links to both the complaint and the investigator’s report. Of note, the judge allegedly referred to the Rapid City police department as a bunch of “racists” in response to an answer about the reason for the police to stop a vehicle. He also noted it was one of the worst cases of racial profiling he had ever seen.
While the report does mention the comment of a defense attorney that the judge’s comment was justified (and agreed the police had behaved in a racist manner), the report is completely silent on this very serious question of racism. In fact, race is all but absent from the report, and it absolutely missing from the formal complaint. The text of a 2000 U.S. Civil Rights Commission report on South Dakota justice system discrimination against American Indians is here. Rapid City’s police department is featured heavily there.
Much of the investigative report details instances of fairly awful behavior by the judge in other contexts, to be sure.
South Dakota Supreme Court Decides ICWA Case — When Good Cause Exists to Deviate From Placement Preferences
Here is the opinion in In re D.W.
The Court’s first holding:
The “clear and convincing” standard appears to be the better-reasoned approach. It is consistent with both the congressional intent in adopting ICWA and this Court’s precedent. Therefore, we conclude that deviations from the ICWA placement preferences require a showing of good cause by clear and convincing evidence.
And the second:
Aside from Girlfriend, neither DSS nor the Tribe located another viable placement option within the ICWA preferences. DSS explored placement options for over three and a half years, during which time Child was without a permanent home environment. The circuit court was within its discretion to determine that a diligent search had been performed and that a suitable ICWApreferred placement could not be found. See BIA Guidelines, 44 Fed. Reg. 67584, ¶ F.3. The court’s findings of fact support its conclusion that at least one of the factors indicating good cause to deviate from the ICWA placement preferences existed in this case. Therefore, the circuit court did not abuse its discretion in finding by clear and convincing evidence that good cause existed to place Child outside the ICWA placement preferences.
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