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Appeals court hears tribal challenge to SD child removals

A lawyer representing two Native American tribes urged a federal appeals court Tuesday to keep in place the changes a judge ordered for a South Dakota county's system of removing children from homes in endangerment cases.

Stephen Pevar, a tribal law specialist with the American Civil Liberties Union, told the 8th U.S. Circuit Court of Appeals that before those protections were imposed, the system was stacked against tribal families. From 2010 through 2013, the state was granted custody of all 823 Indian children it sought to remove from homes in Pennington County.

"The state won 100 percent of the proceedings," said Pevar, who is representing the Oglala and Rosebud Sioux tribes in the case. "It would have been a miracle if these parents had prevailed because they were denied elementary due process."

The tribes sued the county in 2013, saying its procedures for conducting initial hearings in such cases violated the federal Indian Child Welfare Act. The tribes argued parents were denied basic due process protections in these informal hearings, including the right to a court-appointed attorney and to see and challenge the allegations against them.

The chief U.S. district judge for South Dakota, Jeffrey Viken, sided with the tribes in three rulings in 2015 and 2016. He ordered changes to give parents more rights at those initial hearings, which are required to be held within 48 hours of a child's removal from the home to decide whether the child should be returned to the home or be placed in the custody of the state Department of Social Services. Parents previously weren't guaranteed legal protections until a later stage in the process. The county, which includes Rapid City, is now abiding by the judge's orders.

While the case applies most directly to Pennington County, the case has attracted attention elsewhere in Indian Country. The Cherokee Nation and Navajo Nation, the two largest tribes in the U.S., and other tribal groups filed a friend-of-the-court brief that said this lawsuit is vital to ensuring that courts follow the Indian Child Welfare Act, which was enacted in 1978 in response to widespread abuses by state child welfare systems against Indian children and families.

The law sets standards for removing Indian children from their families, terminating parental rights and placing them in foster or adoptive homes. The brief says other states in the 8th Circuit have statutes or procedures in place to ensure those standards are met.

Lawyers for Pennington County State's Attorney Mark Vargo and other officials named in the case argued that the lower court did not follow proper legal procedures, so its decisions should be overturned. Much of their appeal turns on complex legal arguments over whether the state's attorney or the presiding judge in the southwest corner of the state counted as policymakers responsible for the old procedures who could legally be sued over them.

Parents did get full legal protections later in the process well before their parental rights could be terminated, said attorney Jeff Hurd, who represents Craig Pfeifle, the presiding judge for the South Dakota judicial circuit that includes Pennington County.

The appeals court took the case under advisement. Chief Judge Lavenski Smith called it "a very difficult case" and said the panel would rule as soon as possible, but didn't specify when.

Board to draft mining laws for Pennington County

A committee will be formed to draft regulations for hard rock mining in Pennington County ahead of the April 5 expiration of the county’s current mining moratorium.

The decision came Tuesday night at a special county Board of Commissioners meeting before the board considered the first reading of an ordinance to regulate sand, gravel and construction aggregate mining operations that extract more than 100 cubic yards of material.

At the time of publication, the board had yet to complete the first reading of the ordinance, which must be approved by the board twice before going into effect. The ordinance will be considered again at its Feb. 20 meeting.

Though the ordinance primarily addresses sand, gravel and aggregate mining, a two-paragraph section dealing with mineral extraction — gold mining, for example — attracted the majority of comments during the meeting’s first 2 1/2 hours as citizens from Rochford, Rockerville and Native American activists voiced their concerns about potential gold mining in the Black Hills and the lack of county regulations pertaining to the activity.

Last week, a Canadian mining company, Mineral Mountain Resources, began exploratory drilling on private land about a half-mile southeast of Rochford, a small, unincorporated community in the north-central Black Hills that was a gold-mining hub during the late 1800s.

At Tuesday’s meeting, some of the attendees raised the possibility of future conflict and protests related to this operation, with the Dakota Access Pipeline protests of 2016 and 2017 near the banks of the Missouri River in Cannon Ball, N.D., explicitly mentioned. Mineral Mountain Resources' project’s lies about 7 miles west of Pe’ Sla, a large mountain meadow sacred to the Oglala Lakota and other Native America tribes.

“Is that (DAPL protests) what’s coming here?” asked James Hawk, an Oglala Lakota activist.

As the ordinance under consideration currently elucidates, a conditional use permit will be required for any mining operation extracting 100 cubic yards or more of material. On April 5, a two-year county moratorium on the issuance of mining permits in Pennington County will expire. Assistant state’s attorney Michaele Hoffman said the county can no longer extend the moratorium per South Dakota Codified Law 11-2-10, which limits such measures to a maximum of two years.

When asked how the county would decide on future mining operation permit applications and operations, commissioners said they hoped the larger ordinance under consideration would be approved before April 5. Section 507N, which deals with the extraction of minerals, has been characterized as a “stop-gap measure” until a complete ordinance dealing solely with mineral extraction mining operations is finalized.

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Criticism of Planned Parenthood is one step from governor’s desk

Al Novstrup

PIERRE | State lawmakers who favor outlawing most abortions in South Dakota gained another small step Tuesday.

The House Health and Human Services Committee voted 9-2 to endorse a measure that repeatedly criticizes Planned Parenthood. It also would establish further requirements for pregnant women to receive counseling before proceeding to abortions.

The Planned Parenthood clinic in Sioux Falls is the only known general provider of abortions in South Dakota. SB110 faces a final vote in the House of Representatives, possibly as early as today.

If the House approves the bill in its current form, the next stop is Gov. Dennis Daugaard. Rep. Steve Haugaard, R-Sioux Falls, is the lead House sponsor. Prime sponsor is Sen. Al Novstrup, R-Aberdeen.

South Dakota voters a decade ago rejected statewide bans two elections in a row.

Haugaard testified Tuesday the bill is a response to what lawyers learned in the discovery stage of the federal court fight over a previous abortion restriction the Legislature passed. Planned Parenthood wasn’t making an “honest” effort to provide pre-abortion counseling, Haugaard said.

South Dakota law requires a 72-hour waiting period between a counseling session and the abortion that could follow. Elements of the law are headed toward a federal trial that could occur later this year.

Opponents said Tuesday that SB110’s passage could further complicate the proceeding.

Planned Parenthood supporters wearing pink T-shirts dotted the committee room, but no one from the nonprofit organization testified against the legislation. The clinic reportedly brings medical doctors to Sioux Falls to perform abortions.

No one spoke for Planned Parenthood either during the Feb. 2 hearing by the Senate State Affairs Committee. The Senate panel amended the bill somewhat that day and endorsed it 6-2. The full Senate passed it 27-8 on Feb. 6.

Objections from opponents Tuesday focused on the First Amendment to the U.S. Constitution, and its guarantee of free speech. They also said SB 110 would violate separation of church and state that is a principle for the federal government.

Haugaard, a lawyer, said he’s appeared several times before the U.S. Eighth Circuit Court of Appeals. He said the legislation doesn’t raise the free speech issue.

The complaint the legislation would blur the line between church and state was “a fiction,” Haugaard said.

“The focus here is on human life,” Haugaard said.

More than 40,000 abortions occurred in South Dakota since the U.S. Supreme Court delivered the 1973 Roe v. Wade decision, he said.

Findings are in different types of legislation year after year, according to Haugaard. He said those about Planned Parenthood are based on discovery in the court fight.

“It’s a matter of judicial record at this point. This is what’s going on,” Haugaard said.

Rep. Nancy York, R-Watertown, called an opponent back to the witness chair and read the sentence the state law requires about an abortion taking the life of a human being.

“Is that true or false?” York asked.

Kelly Landeen, a University of South Dakota fourth-year medical student, replied: “Answering on behalf of myself, I’d disagree with that statement.”

York asked the same question of Dr. Glenn Ridder, medical director for a pregnancy-help center in Sioux Falls. He said it was true.

“Without a doubt, yes,” Ridder said.

He added, “A person is a person, no matter how small.”

Man gets 70 years for Rapid City motel killing
Victim and defendant grew up together in foster care

A 24-year-old man was sentenced Monday to 70 years in prison for the fatal stabbing of his roommate at a Rapid City motel last year. He and the victim apparently grew up in the same foster family.

Vincent Mousseaux had pleaded guilty to first-degree manslaughter in the killing of 30-year-old Deziree Martinez at the Price Motel on March 8.

The prosecution asked 7th Circuit Judge Jeff Connolly for a life sentence, the maximum penalty for the crime. The defense asked for a “reasonable sentence.”

“He took a life, so the state felt life was in order,” the prosecutor, South Dakota Assistant Attorney General Scott Roetzel, said in an interview.

He highlighted the violent nature of Martinez’s killing, saying at least 40 stab wounds and about 30 cuts were found all over her body. An autopsy found she died of a stab wound to the lung.

Roetzel said the attack was fueled by alcohol, at a time when Mousseaux was on probation for a 2016 burglary-related offense and had been forbidden from drinking.

Mousseaux was initially arrested on a probation hold, about a mile away from the motel, a few hours before Martinez’s body was discovered. His blood alcohol level had been more than three times the legal limit for driving.

Police found Martinez's body at the motel, located on East North Street, after a passerby saw her lifeless through her open motel room door. She had six children.

Defense attorney John Murphy told the court that Mousseaux suffered from untreated mental health issues.

At age 8, Mousseaux was injured in a car accident that killed both his parents. Medical professionals recommended counseling, which Mousseaux apparently never received.

He and his sister, together with Martinez and her brother, were placed in foster care that turned out to be “dysfunctional,” Murphy said in an interview. Mousseaux and Martinez grew up together and thought of each other as cousins, Murphy added.

His sister also said Mousseaux had been diagnosed with schizophrenia, which went largely untreated.

Investigators said Martinez, Mousseaux and another man, Hawk Chavez Sr., had been hanging out at the motel room when an argument between Martinez and Mousseaux broke out.

Mousseaux reportedly tried to stab Martinez when Chavez stepped in to defend her. Mousseaux attempted to stab Chavez, but he took the knife from Mousseaux, who then grabbed another knife and chased him from the room. He then came back for Martinez.

Mousseaux was originally charged with alternate counts of first-degree murder and second-degree murder, as well as aggravated assault against Chavez. The charges, along with a new one of simple assault against a jail correctional officer, were dismissed in accordance with Mousseaux's plea agreement with prosecutors.

He was given credit for 341 days served in county jail, and will be eligible for parole after about 60 percent of his prison sentence has been served. He would be in his 60s at that time.

Martinez’s killing was one of seven homicides in Rapid City in 2017. Three of the eight defendants have now been sentenced, including a man who received life in prison without the possibility of parole for a January 2017 stabbing at the Dakota Rose Inn.


Al Novstrup