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Tribe v. Hunnik

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

February 19, 2016

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.

ORDER DENYING THE SDDSS DEFENDANTS' MOTION TO COMPEL

Jeffrey L. Viken Judge

INTRODUCTION

The South Dakota Department of Social Services ("SDDSS Defendants")[1]filed a motion to compel plaintiff Oglala Sioux Tribe to produce certain documents. (Docket 156). Plaintiffs oppose the SDDSS Defendants'motion. (Docket 178). For the reasons stated below, the SDDSS Defendants' motion is denied.

ANALYSIS

The SDDSS Defendants seek documents relating to children's cases which were transferred under the Indian Child Welfare Act ("ICWA) from the Seventh Judicial Circuit Court, Pennington County, South Dakota, to the jurisdiction of the Oglala Sioux Tribal Court. (Docket 156 at pp. 1-2). The specific requests for production of documents are as follows:

Request for Production No. 1: The Oglala Sioux Tribe Court, Juvenile Court file, (to include but not limited to all motions, petitions, and accompanying documents, orders, and all such materials contained in the Juvenile Court file), in the Oglala Sioux Tribal Court, Oglala Sioux Tribe, Pine Ridge Indian Reservation, associated with each of the following Seventh Judicial Circuit Court, Pennington County, files:
A10-270; A10-306; A10-460; A10-487; A10-587; A10-649; A10-783; A10-1007; A10-1012; A10-1017; A10-1035; A10-1119; A10-1170; A10-1320; All-86; All-147; All-152; All-161; All-321; All-359; All-441; Al 1-650; Al 1-660; Al 1-674; Al 1-681; Al 1-744; Al 1-772; Al 1-869; Al 1-893; Al 1-1036; Al 1-1060; All-1103; All-1119; A12-191; A12-219; A12-394 A12-518; A12-659; A12-698; A12-712; A12-746; A12-749; A12-791; A12-839; A12-1022; A13-20; A13-30; A13-53; A13-104; A13-179; A13-246; A13-365; A13-432; A13-560; A13-639; A13-665; A13-697; A13-698; A13-738; A14-60; A14-444.
in which the Oglala Sioux Tribe on behalf of The Oglala Nation Tiospaye Resource and Advocacy Center (ONTRAC) or other movant, requested transfer from the jurisdiction of the Seventh Judicial Circuit Court, Pennington County, to the Oglala Sioux Tribe.
Request for Production No. 2: The Oglala Sioux Tribe on behalf of The Oglala Nation Tiospaye Resource and Advocacy Center (ONTRAC) Program file of each parent(s) and/or child(ren), (including all court documents, case worker reports, case worker notes, narrative reports, risk assessment reports, visitation records, correspondence, interviews, and home studies) associated with each of the following Seventh Judicial Circuit Court, Pennington County, files:
A10-270; A10-306; A10-460; A10-487; A10-587; A10-649; A10-783; A10-1007; A10-1012; A10-1017; A10-1035; A10-1119; A10-1170; A10-1320; All-86; All-147; All-152; All-161; All-321; All-359; All-441; Al 1-650; Al 1-660; Al 1-674; Al 1-681; Al 1-744; Al 1-772; Al 1-869; Al 1-893; Al 1-1036; Al 1-1060; All-1103; All-1119; A12-191; A12-219; A12-394 A12-518; A12-659; A12-698; A12-712; A12-746; A12-749; A12-791; A12-839; A12-1022; A13-20; A13-30; A13-53; A13-104; A13-179; A13-246; A13-365; A13-432; A13-560; A13-639; A13-665; A13-697; A13-698; A13-738; A14-60; A14-444.
in which the Oglala Nation Tiospaye Resource and Advocacy Center (ONTRAC) or other movant, requested transfer from the jurisdiction of the Seventh Judicial Circuit Court, Pennington County, to the Oglala Sioux Tribe.

(Docket 157-1 at pp. 2-4) (bold omitted). The SDDSS Defendants seek access to all the file materials of these sixty-one specifically identified cases. (Docket 156 at p. 2).

The SDDSS Defendants argue this information is necessary to "confirm, support, prove, and corroborate that from the time the children came into the custody of [the SDDSS Defendants] . . . until the children were transferred to the custody of the Oglala Sioux Tribal Court . . . that the children were subject to imminent risk/impending danger and that custody of the children with their parents was not in the best interests of the children." Id. at p. 7.

Plaintiffs oppose the motion. (Docket 178). Plaintiffs argue the motion "is based on an assumption of fact that is false." Id. at p. 2. Plaintiffs assert that "[a]s attested to by Tribal Court Judge Sheena Mousseau, the tribal court is entirely unaware of any of the facts of any individual case when it signs the conditional order accepting jurisdiction in any particular case. The tribal court's findings, including the finding of likelihood of harm, is simply the tribal court adopting and giving full faith and credit to the findings already made by the state court when it signed the original temporary custody order." Id. at p. 2. Plaintiffs claim "[t]here is no ...


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