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Cheyenne River Sioux Tribe v. the Honorable Jeff W. Davis

October 10, 2012


The opinion of the court was delivered by: Gilbertson, Chief Justice




[¶1.] This is an original proceeding for a writ of mandamus or prohibition commenced by the Cheyenne River Sioux Tribe (Tribe) against the Honorable Jeff W. Davis, Presiding Judge of the Seventh Judicial Circuit.*fn1 We dismiss the application for a writ.

Facts and Procedural History

[¶2.] Three unattended Native American children, ages sixteen, twelve, and three, were taken into custody from their residence by the Rapid City Police Department in the early morning hours of July 6, 2012. Oldest child was found intoxicated and suffering from seizures. Oldest child was hospitalized while the two younger children were placed into foster care.

[¶3.] On the morning of July 6, a specialist for the South Dakota Department of Social Services (DSS) notified Tribe as to the custody of the children. State filed a petition for temporary custody and the forty-eight hour temporary custody hearing was held before Judge Davis at approximately 1:30 p.m. on July 9, 2012.*fn2

[¶4.] Mother appeared at the temporary custody hearing and requested the appointment of counsel. Tribe appeared through counsel and was permitted to intervene pursuant to the Indian Child Welfare Act (ICWA). Based upon State's petition, the police report and an ICWA affidavit from a DSS specialist, the court granted temporary custody of the children to DSS for sixty days. Citing ICWA, Tribe contested the custody order and sought to address the facts of the case and to present evidence. The court denied these efforts on the basis that it was a forty- eight hour hearing and mother did not yet have representation. The court did, however, indicate a willingness to revisit the situation later that day or when counsel for mother was available. The court also noted DSS's authority to return the children at any time if the situation was remedied or if continued custody was not warranted. The court also ordered DSS to consider and investigate mother's parents as a temporary placement. Tribe moved for a hearing in a week or in the "reasonably near future" to consider the factual basis for taking the children. The court denied the motion and the next hearing in the matter was scheduled for September 4, 2012.

[¶5.] On August 9, 2012, a month after the temporary custody hearing,

Tribe filed an application for a writ of mandamus or prohibition from this Court to compel a new temporary custody hearing or to arrest further proceedings in the case until a new hearing could be held. On August 15, this Court issued an order to show cause as to why the application should not be dismissed on the grounds that Tribe had a plain, speedy, and adequate remedy at law in the next hearing scheduled in the matter for September 4, 2012. Tribe and Judge Davis filed responses to the order to show cause. State submitted a response joining that of Judge Davis. Tribe also submitted an application for leave to file a reply to Judge Davis and a reply which we have considered in our review of this matter.

[¶6.] Tribe's response to the order to show cause and the other responses provided new information not previously conveyed or unclear in the original writ application. Within a week of the original temporary custody hearing, this case was reassigned from Judge Davis to Circuit Court Judge Mary P. Thorstenson. A hearing was held before Judge Thorstenson on July 16, 2012. At that hearing, Tribe's counsel advised that physical custody of middle child had been returned to her father who was her legal guardian. Accordingly, middle child was no longer a part of the case. Tribe's counsel also advised that Tribe had filed a motion to transfer youngest child's case to Tribal Court and that this was the primary purpose of the hearing. Mother's counsel made a motion to also transfer oldest child's case to Tribal Court. A discussion ensued as to whether oldest child would object to the transfer. The court ultimately approved the transfer of youngest child's case to Tribal Court, but continued the matter as to oldest child. Tribe's counsel then challenged oldest child's temporary placement and questioned the lack of adherence to relative placement preferences under ICWA. State pointed out the case was still in the "emergency custody time frame" and at the "initial phase[]." The case was then continued until the following week on July 23, 2012.

[¶7.] At the July 23 hearing, Judge Thorstenson indicated its purpose was to consider a continued request to transfer oldest child's case to Tribal Court. Tribe's counsel advised that Tribe would object to the transfer because of the absence of a plan for oldest child. Oldest child's counsel indicated oldest child would not object to a transfer and hoped for a placement with an aunt living on the Reservation. Tribe's counsel once again raised the issue of lack of compliance with ICWA placement preferences. At that point, the court advised that the proceedings were a continuation of the emergency hearing and that ICWA placement preferences were not yet applicable. However, the court did instruct DSS to look into the temporary placement of oldest child with her aunt.*fn3 This was the posture of the proceedings at the time Tribe filed its writ application.


[ΒΆ8.] Tribe continues to request a new temporary custody hearing in this matter in which the full panoply of ICWA requirements and standards would be applied. Tribe contends the lack of such a hearing violates its federal and state rights and that it is irreparably harmed by the lack of any mechanism to ...

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