Oglala Sioux Tribe v. Van Hunnik

100 F.Supp.3d 749

OGLALA SIOUX TRIBE and Rosebud Sioux Tribe, as parens patriae, to protect the rights of their tribal members; Madonna Pappan, and Lisa Young, individually and on behalf of all other persons similarly situated, Plaintiffs

v.Luann VAN HUNNIK; Mark Vargo ; Hon. Jeff Davis; and Lynne A. Valenti, in their official capacities, Defendants.

No. CIV. 13–5020–JLV.

United States District Court, D. South Dakota, Western Division.

Signed March 30, 2015.

Dana Hanna, Rapid City, SD, Stephen L. Pevar, ACLU Foundation, Hartford, CT, Rachel E. Goodman, ACLU, New York, NY, Plaintiff.

Robert L. Morris, Morris Law Firm, Belle Fourche, SD, J. Crisman Palmer, Sara Frankenstein, Jeffrey R. Connolly, Gunderson, Palmer, Goodsell & Nelson, LLP, Rapid City, SD, Nathan R. Oviatt, Goodsell Quinn, LLP, Ann F. Mines–Bailey, Attorney General of South Dakota, Steven R. Blair, Robert B. Anderson, May, Adam, Gerdes & Thompson, Pierre, SD, for Defendant.

ORDER

JEFFREY L. VIKEN, Chief Judge.

“A cornerstone of Lakota culture can be summed up in the words family and kinship. Family is the backbone, the foundation of our culture. We are given substance, nurtured, and sustained by family. ”¹

Joseph M. Marshall III, Sicangu Lakota (Rosebud)

“Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.... ”²

Congress of the United States

“This wholesale removal of Indian children from their homes prompted Congress to enact the [Indian Child Welfare Act], which establishes federal standards that govern state-court child custody proceedings involving Indian children. ”³ Supreme Court of the United States

INTRODUCTION

The Honorable Jeff Davis is a judge of the Seventh Judicial Circuit, part of the South Dakota Unified Judicial System. Judge Davis is the presiding judge of the Seventh Circuit. He administers the court system for the Circuit and sets policies and procedures in his courtroom. His Seventh Circuit judicial colleagues follow Judge Davis' policies and procedures for the removal of Indian children from their parents' homes.

Judge Davis typically conducts hearings within 48 hours of an Indian child's removal from the parents' care. The hearings usually last less than five minutes.⁴ The removed Indian children often spend weeks or months in foster care away from their parents, Indian custodians and Tribes.

Mark Vargo is the elected States Attorney for Pennington County, South Dakota. His staff attorneys appear before Judge Davis and other Seventh Circuit judges in cases involving the removal of Indian children from their parents. Mr. Vargo has an obligation to follow federal and state law, to advocate the State's position and to seek justice at all times.⁵ These obligations are independent from the judicial function. Mr. Vargo controls the policies and procedures followed by his staff attorneys.

Lynne A. Valenti is the Secretary of the South Dakota Department of Social Services (“DSS”). LuAnn Van Hunnik is the person in charge of DSS Child Protection Services (“CPS”) for Pennington County, South Dakota. CPS employees under policy guidance from and the supervision of Ms. Valenti and Ms. Van Hunnik prepare a petition for temporary custody and sign an Indian Child Welfare Act⁶ affidavit alleging an Indian child is at risk of serious injury if the child remains in the parents' home.

The court granted parens patriae status to the Oglala Sioux Tribe and the Rosebud Sioux Tribe. The court certified the individual plaintiffs, Madonna Pappan and Lisa Young, as class representatives for all similarly situated Indian parents.⁷

Plaintiffs moved for partial summary judgment on the grounds defendants violate the Indian Child Welfare Act and the Due Process Clause in the removal of Indian children from their parents or Indian custodians. Plaintiffs seek only prospective declaratory and injunctive relief.⁸ Defendants vigorously oppose plaintiffs' motions for partial summary judgment.

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.

For the reasons stated below, plaintiffs' motions for partial summary judgment are granted.

THE INDIAN CHILD WELFARE ACT

Congressional findings to support the passage of IOWA included the following declarations:

[T]hat there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;

[T]hat an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and

[T]hat the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

25 U.S.C. § 1901(3), (4) & (5). The Indian Child Welfare Act “establishes minimum Federal standards and procedural safeguards to protect Indian families when faced with child custody proceedings against them in State agencies or courts.”⁹

“The Indian Child Welfare Act ... was the product of rising concern in the mid–1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Mississippi Band of Choctaw Indians, 490 U.S. at 32, 109 S.Ct. 1597. Indian tribes have an interest in the custody of Indian children “which is distinct from but on parity with the interest of the parents” and which “finds no parallel in other ethnic cultures found in the United States. It is a relationship that many non-Indians find difficult to understand and that non-Indian courts are slow to recognize.” Id. at 52, 109 S.Ct. 1597. “[T]he purpose of the ICWA gives no reason to believe that Congress intended to rely on state law for the definition of a critical term; quite the contrary. It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-a-vis state authorities.” Id. at 44–45, 109 S.Ct. 1597.

Section 1912 of ICWA addresses the rights of Indian parents during any court proceeding. “In any involuntary proceeding in a State court ... the party seeking the foster care placement of ... an Indian child shall notify the parent or Indian custodian ... and the ... tribe ... of the pending proceedings....” 25 U.S.C. § 1912(a). In the event of indigency, Indian parents are entitled “to court-appointed counsel in any removal ... proceeding.” Id. at § 1912(b). “Each party to a foster care placement ... under State law involving an Indian child shall have the right to examine all reports and other documents filed with the court upon which any decision with respect to such action may be based.” Id. at § 1912(c). “Any party seeking to effect a foster care placement of ... an Indian child under State law shall satisfy the court that active efforts have been. made to provide remedial services and rehabilitative programs designed to prevent the break-up of the Indian family and that these efforts have proved unsuccessful.”Id. at § 1912(d). “No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Id. at § 1912(e). A “foster care placement” for purposes of ICWA “mean[s] any action removing an Indian child from its parents or Indian custodian for temporary placement in a foster home or institution ... where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated....” 25 U.S.C. § 1903(1)(i).

Section 1922 of ICWA states:

Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. The State authority, official, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.

25 U.S.C. § 1922.

THE DUE PROCESS CLAUSE

The Due Process Clause of the Fourteenth Amendment provides “[n]o State...