Tribe v. Davis
| Citation | 2012 S.D. 69,822 N.W.2d 62 |
| Decision Date | 26 November 2012 |
| Docket Number | No. 26448.,26448. |
| Parties | CHEYENNE RIVER SIOUX TRIBE, Petitioner, v. The Honorable Jeff W. DAVIS, Presiding Judge of the South Dakota Seventh Judicial Circuit, Respondent. |
| Court | Supreme Court of South Dakota |
822 N.W.2d 62
2012 S.D. 69
CHEYENNE RIVER SIOUX TRIBE, Petitioner,
v.
The Honorable Jeff W. DAVIS, Presiding Judge of the South Dakota Seventh Judicial Circuit, Respondent.
No. 26448.
Supreme Court of South Dakota.
Original Proceeding.
Submitted on Aug. 31, 2012.
Decided Oct. 10, 2012.
Rehearing Denied Nov. 26, 2012.
Dana L. Hanna, Rapid City, South Dakota, Attorney for petitioner.
Nathan R. Oviatt of Goodsell Quinn, LLP, Rapid City, South Dakota, Attorneys for respondent, The Honorable Jeff W. Davis.
Glenn A. Brenner, Pennington County State's Attorney, Patrick Grode, Pennington County Deputy State's Attorney, Rapid City, South Dakota, Attorneys for respondent, State of South Dakota.
[822 N.W.2d 63]
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. 1 We dismiss the application for a writ.
[¶ 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, 2012.2
[¶ 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
[822 N.W.2d 64]
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...
To continue reading
Request your trial
-
Oglala Sioux Tribe v. Van Hunnik
... 100 F.Supp.3d 749 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. No. CIV. 135020JLV. United States District Court, D. South Dakota, Western Division. Signed March 30, 2015. 100 F.Supp.3d 752 Dana Hanna, Rapid City, SD, Stephen L. Pevar, ACLU Foundation, Hartford, CT, Rachel E. Goodman, ACLU, New ... ...
-
Oglala Sioux Tribe & Rosebud Sioux Tribe v. Van Hunnik
... ... Luann VAN HUNNIK; Mark Vargo; Hon. Jeff Davis; and Kim Malsam–Rysdon, in their official capacities, Defendants. No. CIV. 13–5020–JLV. United States District Court, D. South Dakota, Western Division. Jan. 28, 2014 ... [993 F.Supp.2d 1021] Dana Hanna, Rapid City, SD, Stephen L. Pevar, Faclu Foundation, Hartford, CT, ... ...
-
Oglala Sioux Tribe v. Fleming
... ... v. Texaco, Inc. , 481 U.S. 1, 15, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987). In this very context, the South Dakota courts have adjudicated federal claims. In Cheyenne River Sioux Tribe v. Davis , 822 N.W.2d 62 (S.D. 2012), the Supreme Court of South Dakota resolved a petition for writ of mandamus that sought an order compelling a South Dakota circuit judge to apply procedural rights guaranteed by the ICWA at temporary custody hearings. Id. at 64-66. The availability of mandamus relief ... ...
-
In re H.T., DA 14–0076.
... ... Based on those inquiries, notices of the action were sent to the Blackfeet Tribe and to the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation. The affidavit also stated that a letter had been sent to the Bureau of ... E.g. Cheyenne River Sioux Tribe v. Davis, 822 N.W.2d 62, 65 (S.D.2012) ; State ex rel. Children, Youth & Families Dep't v. Marlene C. (In re Esther V.), 149 N.M.315, 248 P.3d 863, 873 ... ...