Amicus lector
Huge SCOTUS ruling does little to clear up issues in South Dakota lawsuit

As you’ve probably read by now, the U.S. Supreme Court has voted to limit the scope of the Indian Child Welfare Act, a federal law written by a former SD Senator designed to provide additional protections to Indian parents during child custody proceedings.

The case of Adoptive Couple vs. Baby Girl involved a father who asserted his ICWA rights in an attempt to block an adoption that had been cleared by a state court. The South Carolina Supreme Court ruled that ICWA applied, and sent the child home with her father after more than two years living with non-Indian adoptive parents.

One natural question might be “what effect will this ruling have on the Oglala Sioux Tribe’s lawsuit claiming that temporary custody hearings in Rapid City violate ICWA?”

It’s hard to say, really. The line from one case to the other is not direct. One is about ICWA’s application in the termination of parental rights for a father who never had any kind of custody. The other is about the direct removal of Indian children from a parent or guardian who had been caring for them.

That’s not to say that the ruling doesn’t have far-reaching implications for South Dakota or that it doesn’t speak to the high court’s feelings about the law. It only means the cases involve wildly different scenarios.

In the 5-4 ruling issued today, the justices found that ICWA does not apply to cases involving the termination of parental rights if the parent never had or attempted to assert custody of the Indian child.

The opposing side argued that ICWA does apply to the termination of parental rights involving Indian children. They’d won at the South Carolina Supreme Court, which ultimately sent the child home with her biological father.

Whether ICWA applies in a given case is an extraordinarily important question. If the Act applies, a court cannot terminate parental rights unless it finds, beyond a reasonable doubt, through the testimony of qualified expert witnesses, that continued custody with an Indian parent would put the child in serious danger.

The court also must find that active efforts at family reunification have taken place.

The new opinion’s author, Justice Samuel Alito, sided with the couple who’d adopted the baby when he wrote that ICWA was designed to prevent the “breakup” of Indian families, not to confer rights to parents who haven’t asserted them.

He wrote that it is unnecessary for courts to parse the details of potential damage to a child through “continued custody” if no such custody existed in the first place, and that the “active efforts” to keep a family together under ICWA do not apply under such a scenario.

The ruling also states that it’s okay for a non-Indian family to adopt a child if no Indian families come forward to do so.

Alito’s ruling points out that the father had offered no support to the biological mother during the pregnancy or afterward and that he only asserted his rights after learning of the adoption.

Applying ICWA in a case like that, Alito wrote, doesn’t comport with Congress’ stated intention in passing the law, namely to halt the alarming removal of Indian children from their homes by state agencies with cultural biases.

Extending that reach to parents who’ve never made a home for their children goes beyond the scope of that intention, he wrote. If there is no “continued custody” to preserve, he wrote, there is no need to invoke the law.

The South Carolina court’s reasoning was flawed, he said.

 “As the State Supreme Court read §§1912(d) and (f ), a biological Indian father could abandon his child in utero and refuse any support for the birth mother—perhaps contributing to the mother’s decision to put the child up for adoption—and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests.

Justice Sonia Sotomayor rejected that logic in her dissent, zeroing in on the majority’s narrow interpretation of the phrase “continued custody.” The physical or legal custody status of a child shouldn’t alter the additional protections afforded to Indian parents under ICWA, she wrote.

“…in the majority’s view, a family bond that does not take custodial form is not a family bond worth preserving from ‘breakup.’”

She goes on to state that the Court has repeatedly recognized the inherent relationship a biological parent has with a child, and points to specific provisions in ICWA that recognize as much.

So now we’re back to the Oglala Sioux Tribe’s claim against the state. It doesn’t involve adoptions at all. It involves temporary custody hearings.

The Indian parents in that lawsuit assert that their children were removed from their homes by law enforcement, and that the temporary custody hearings that took place 48 hours later did not afford them any meaningful opportunity to assert their rights under ICWA.

If the parent appears at the temporary custody hearing, they don’t even get to see the police and DSS reports that outline the alleged abuse and neglect that lead to the removal.The Oglala lawsuit seeks to have similarly-situated parents established as a class, as well.

Unlike the father of Baby Girl,the Oglala parents had physical custody before the proceedings in question.

The lawsuit speaks to a long-simmering issues in South Dakota.Tribal leaders gathered in Rapid City this Spring to talk about what they call an epidemic of removal. They say Indian children are taken from homes and situations where white children would be allowed to stay, that Indian children stay in foster care too long, and that the state of South Dakota makes it too difficult for parents to answer the claims made by law enforcement or the Department of Social Services.

Jeff Davis, the Rapid City judge named as a defendant in the lawsuit, has asked for the whole thing to be thrown out.

He says ICWA does not prevent states from initiating emergency custody actions, and that ICWA’s provisions do not apply to those hearings. He citesSouth Dakota Supreme Court case of Cheyenne River Sioux Tribe vs. Davis.

The rules of evidence don’t apply at the hearings, he said. It is at the next hearing, which is supposed to take place within 30 to 90 days, that the parents can see the allegations against them, that they are advised of the rights and that they are allowed to present evidence. At that hearing, the court must find by “clear and convincing evidence” that continued placement with an Indian parent is dangerous.

At any point in the proceedings, tribes can assert their right to have a case involving an Indian child transferred to tribal court.

The Oglala plaintiffs don’t buy it. They assert that no parent – especially a parent afforded additional protections by federal law – ought to lose their children for 30 to 90 days based on what their lawyers refer to as a “sham” hearing.

That’s a far cry from the situation the father of Baby Girl found himself in. He was never accused of abuse or neglect. His daughter had never even lived with him.

As monumental as the SCOTUS decision is, it doesn’t provide much clarity or guidance for the parties involved in South Dakota’s most high-profile ICWA dispute. 

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