A federal appeals court has rejected a petition to re-hear a case where three of its judges overturned a local federal ruling that said Pennington County must give Native American parents more rights during the initial hearings of child-removal cases.
The U.S. 8th Circuit Court of Appeals ruled Dec. 4 that it would not reconsider the case or have an en-banc hearing, when all 11 of its judges hear the case. Just three judges voted for an en-banc hearing, and neither side explained its decision.
On Sept. 14, a three-judge panel of the appeals court ruled that the 2015-2016 decisions of the U.S. District Court of South Dakota should be overturned because the case is a state's issue that should have never been heard in federal court.
In their petition for another hearing, lawyers for the Oglala and Rosebud Sioux tribes said they deserve to be heard in federal court since they haven't had the opportunity to raise their concerns in state courts. That claim was contested by the lawyers for the defendants.
The Oglala and Rosebud Sioux tribes took the lead for three parents in a 2013 class-action lawsuit challenging the practices of the South Dakota 7th Circuit Court, the Pennington County State's Attorney office and the South Dakota Department of Social Services during temporary custody hearings that must take place within 48 hours of removing a child from a home. The parents claimed the Indian Child Welfare Act hearings are too brief, sometimes as short as two minutes, and violate parental rights guaranteed under the 14th Amendment.
With the decision of the appeals court now final, the last chance to appeal the case is with the U.S. Supreme Court, said Dana Hanna, a Rapid City lawyer who represents the tribes.
If his team decides to ask the Supreme Court to hear its case, there is a 1 percent chance it will be accepted since the court hears 80 cases a year out of 8,000 applications, Hanna said. But he said the court may decide to hear it since it's a case dealing with significant issues.
Several high-profile ICWA cases have made the news recently, and the law — enacted in 1978 in response to widespread abuses by state child-welfare systems against Native American children and families — appears as if it will eventually end up at the Supreme Court.
In October, a federal judge ruled for the first time that all of ICWA is unconstitutional.