ICWA: State Judges Respond To Federal Order

Mar 31, 2014

Four judges in Rapid City say a federal judge went too far in requiring them to sign orders to produce transcripts. Their response, filed this weekend in federal court in Rapid City, is the most recent action in an ongoing lawsuit claiming violations of the Indian Child Welfare Act and the 14th Amendment in Pennington County.
   When a child is removed from a parental home in South Dakota, there has to be an emergency hearing within 48 hours to determine whether returning the child to the home is the best course of action. That law applies to all children in the state affected by allegations of abuse or neglect.
   If the child’s parents are enrolled members of a federally recognized tribe, there are additional safeguards required under the federal Indian Child Welfare Act, or ICWA.
   The Oglala and Sicangu tribes and three Native parents claim that Pennington County’s 48-hour emergency hearings are so brief—sometimes lasting just minutes—that parents can’t produce evidence to make a case for getting their children back. The children are placed in foster care until another hearing can be held, often 60 days later. And although ICWA requires placement in a Native home, if one is available, the children are most often placed with non-Native families.
   The plaintiffs are not seeking money. They want a change in Pennington County’s process.
   Federal Judge Jeffrey Viken has said the lawsuit may proceed. He signed an order, drawn up by plaintiffs, requiring six judges in the Seventh Circuit to have certain ICWA hearings transcribed and turned over to plaintiffs’ attorneys, after parents’ and children’s names have been redacted.
   According to information filed with the federal court in Rapid City, Presiding Judge Jeff Davis has agreed to turn over his transcripts. Mary Thorstenson is no longer a judge and says she doesn’t have standing to sign judicial orders, but she has no objection if Davis finds it appropriate to release her transcripts.
   The other four judges—Thomas Trimble, Wally Eklund, Craig Pfeifle, and Robert Mandel—have refused to release their transcripts.  
   They say that if they’re compelled to sign the paperwork, they’re compelled to sign off on predetermined judicial findings and legal conclusions. And they say a federal judge cannot “commandeer” state court judges, not only requiring them to contemplate an order but also mandating the outcome. They say the order ignores the division of authority between federal and state governments and violates state sovereignty.
   The four judges concede that the federal court may have the authority to require state court reporters to produce the transcripts.
   Plaintiffs now have a week to respond.