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Tribe v. Fleming

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

December 15, 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.
LISA FLEMING; MARK VARGO; HONORABLE CRAIG PFEIFLE; and LYNNE A. VALENTI, in their official capacities, Defendants.

          DECLARATORY JUDGMENT

          JEFFREY L. VIKEN CHIEF JUDGE

         Incorporating the order of March 30, 2015 (Docket 150), the order of February 19, 2016 (Docket 217), and the court's orders of December 15, 2016, (Dockets 301 and 302), for good cause shown and pursuant to the court's inherent equitable authority, the court enters the following declaratory judgment.

         IT IS ORDERED, ADJUDGED AND DECREED that pursuant to the Indian Child Welfare Act[1] and the Due Process Clause of the Fourteenth Amendment, the following rights exist for the benefit of Indian children, parents, custodians and tribes in 48-hour hearings[2] and all subsequent emergency proceedings:[3]

         THE RIGHT TO ADEQUATE NOTICE

         1. The ICWA affidavit must state with sufficient detail the facts[4] which justify the emergency removal of an Indian child[5] from its parent or custodian and the facts which warrant the continued separation of a child from its parent or custodian to "prevent imminent physical damage or harm to the child;"[6]

         2. The petition for temporary custody ("petition") must:

         a. state what documents, if any, are incorporated by reference and copies of all incorporated documents[7] must be attached to the petition;

         b. describe that the purpose of the petition is to seek continued temporary custody of a child with the South Dakota Department of Social Services ("DSS");

         c. advise that the State has the burden to prove by a preponderance of the evidence that continued removal is necessary to prevent imminent physical damage or harm to the child;

         d. advise the parent or custodian of the possible immediate and ultimate consequences of the proceeding;

         e. advise the parent or custodian of the right to request that the state proceedings be transferred to tribal court;[8]

         f. advise that if the parent or custodian is indigent, the court will appoint counsel and will grant a continuance, not to exceed 24 hours, to enable counsel to become familiar with the facts of the case and confer with the parent or custodian;[9] and

         g. state that the parent or custodian and their attorney have the fllowing rights at the 48-hour hearing:

1. to contest the allegations in the petition;
2. to require the State to present evidence in support of the petition;
3. to cross-examine the State's witnesses and the preparers of any documents ...

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