Oglala Sioux Tribe et al. v. Luann Van Hunnik

[Editor’s Note: This brief summarizes the facts of the case as contained in the plaintiffs’ statement of undisputed facts, not the court’s opinion.] The Indian Child Welfare Act (ICWA) permitted state courts to order temporary emergency removal of Indian children from their homes. After an emergency removal, ICWA required the state court to promptly hold a hearing to determine whether a child could safely return home, and the court was required to return children to their homes as soon as it was safe to do so. In South Dakota, emergency custody hearings were called 48-hour hearings. The Oglala Sioux Tribe, the Rosebud Sioux Tribe, and two parents of Indian children, Madonna Pappan and Lisa Young (plaintiffs) sued Pennington County judges (defendants) and the directors of Pennington County child-welfare agencies (defendants) in a class action, alleging that Pennington County judges and child-welfare agencies did not follow ICWA procedures in 48-hour hearings. Pennington County courts held about 100 48-hour hearings concerning Indian children per year. The presiding judge, Judge Harris, took the position and set the policy that ICWA did not apply to 48-hour hearings because emergency removal deferred the application of ICWA. Pennington County courts did not address whether children could safely return home except in a handful of cases in which a parent or tribal attorney raised the issue, and 90 percent of the hearings resulted in the child remaining in the custody of the state. Judge Harris ordered the continued removal of Indian children in 100 percent of 48-hour hearings. Judge Harris also set the policy of refusing to admit evidence in 48-hour hearings. The average duration of Pennington County 48-hour hearings was four minutes, though many concluded in one minute. The orders issued after 48-hour hearings contained the provision that when a state agency believed that a child could safely return home, the agency could return the child. But Pennington County state courts never ordered state agencies to return children to their homes. In one hearing, a child was taken from her home because the mother was allegedly intoxicated. At the 48-hour hearing, the mother and father appeared before Judge Harris. The mother denied that she had been intoxicated, and the father asked Judge Harris to allow the father to take the child home. Judge Harris ordered the child to remain in state custody for 60 days. When the father asked why he could not take his child home, Judge Harris stated that he could not give a reason because he did not admit evidence in 48-hour hearings.