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SD: Circuit judges accused of ignoring federal judge's order in suit over Native children custody hearings

March 20, 2014

Rapid City Journal - March 19, 2014

A federal judge has given four Seventh Circuit judges and one former circuit judge two weeks to either abide by his orders or explain why they won't order transcripts of custody hearings involving Native American children.

One year ago, the Rosebud Sioux Tribe, the Oglala Sioux Tribe and three Native American parents filed a federal lawsuit challenging the procedures state officials use when removing children from their homes.

The lawsuit claims courts and Department of Social Service officials ignore the Indian Child Welfare Act (ICWA) by giving parents a superficial hearing before taking children from the home for 60 days.

Seventh Circuit judges Wally Eklund, Robert Mandel, Craig Pfeifle and Thomas Trimble, along with former judge Mary Thorstenson have refused to sign orders authorizing transcripts of certain hearings that Chief U.S. District Judge Jeffrey Viken has said the plaintiffs can have to pursue their case.

Presiding Seventh Circuit Judge Jeff Davis has signed the order authorizing transcripts of hearings he supervised. But the attorney representing the other judges has said his clients will not sign orders releasing transcripts of their hearings, according to the court documents.

On Monday, the plaintiffs' attorneys filed a motion asking Viken to compel the judges or Davis to sign the transcript orders. Davis has refused to sign the transcript orders for the other judges, including Thorstenson, who left the bench a year ago. 

Viken responded to the motion to compel by ordering the defendants to respond to the motion by March 28. Viken also gave the judges the same deadline to explain their reasons for not signing the orders.

In January, Viken rejected a defense request to dismiss the lawsuit.

At that time, Viken ordered the Seventh Circuit Court to provide a list of 48-hour ICWA hearings held since January 2010. Viken authorized the production of transcripts from every third 48-hour hearing on that list, according to court documents filed Monday.

In his January order, Viken stated that the process of obtaining the transcripts should be expedited to accommodate plaintiffs' anticipated motion for preliminary injunction.

Viken acknowledged then that the tribes and parents were likely to ask him for a preliminary injunction preventing the defendants from continuing their current practices. Therefore, it was important that discovery proceed and the transcripts be provided.




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