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Native Sun News: South Dakota judges balk at ICWA court order

The following story was written and reported by Brandon Ecoffey, Native Sun News Managing Editor. All content © Native Sun News.

US District Court Judge Jeffrey L. Viken

Judges balk at court order on ICWA
Refuse to turn over transcripts on taking of Native children
By Brandon Ecoffey
Native Sun News Managing Editor

RAPID CITY—Five state court judges in South Dakota are refusing to comply with a Federal court’s order to instruct court reporters to turn over transcripts from hearings regarding the taking of Native American children.

In a suit that was filed by the Oglala Sioux Tribe, the Rosebud Sioux Tribe, and the American Civil liberties union on behalf of tribal members in March of last year that alleges that the state of South Dakota and Pennington County specifically, has institutionalized the process of denying tribal members their constitutional right to due process, several judges in South Dakota have refused to comply with a court order to turnover copies of transcripts from hearings that allegedly detail this denial.

During an abuse and neglect case there are four primary stages that take place. The initial stage takes place when social services, the police, or some other agent of the government removes a child from their home under the suspicion of neglect. After the removal the next step of the process is a hearing must take place to determine whether the child is in immediate danger and needs to remain in the custody of the state. The third stage involves a trial to determine if neglect has actually taken place, and the final stage involves the placement of a child in a foster home for an undetermined amount of time.

The lawsuit challenges the second step. In Pennington County during the initial hearing the parents of a child who has been taken are not allowed to see or challenge the evidence that is being used to take custody of their child. According to the suit there is no attempt at all from the state to provide any level of due process.

In February of this year Federal Judge Jeffrey Viken denied the states motions for dismissal of the case. One of the motions to dismiss filed by the state related to a request by the plaintiffs for the state to provide a list of cases and transcripts of the review hearings where Native parents are allegedly being denied due process. Judge Viken ruled that the state must comply with the request for expedited discovery and established a time table for the state to comply with.

Six judges were contacted, including Judge Jeff Davis who was named in the suit in his official capacity, and asked to order court reporters to turnover copies of the transcripts however Judge Davis was the only one to comply and sign the order.

In response lead counsel for the plaintiffs filed a six page motion with the federal court to compel the judges to abide by the federal courts ruling in favor of expedited recovery. The transcripts will include verbatim what took place in the hearings and whether or not the rights of tribal members and the legal protections granted by ICWA are being denied by the state. The crux of the evidence needed to prove that these violations were taking place, if present, will be outlined within these court transcripts.

In the motion to compel filed by Pievar the plaintiffs request that the court order Judge Davis who is the Chief Judge in Pennington county to order the release of the transcripts from the court reporters, order the five judges to issue an order for the transcripts to be released, or issue a ruling that will force the court reporters to do provide the transcripts on their own.

The five Judges, all from the seventh circuit, refusing to comply with the motion are Judge Eklund, Judge Trimble, Judge Thorstensen, Judge Pfleifle, and Judge Mandel. In response to the motion filed by Pievar, Federal Judge Jeffrey Viken ordered that counsel for the judges can file a response before March 28th outlining their reasoning for refusing to comply with the earlier ruling.

In the motion to compel the plaintiffs argue, “The Court’s Order is being undermined in large measure by Judge Davis, who is refusing to sign transcript orders in any cases but his own, and by the five judges, who are refusing to sign any orders.” Legal precedent establishes that Judge Davis does have the legal authority to order the release of the transcripts in all case including his own that fall under the legal scope of the case.

(Contact Brandon Ecoffey at

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