Cheyenne River Sioux Tribe v. Davis
822 N.W.2d 62
S.D.2012Background
- Tribe filed an original mandamus/prohibition proceeding to compel a new temporary custody hearing or halt proceedings until ICWA-compliant processes could occur.
- Three unattended Native American children were taken into custody July 6, 2012, after the oldest was intoxicated and seizing; DSS sought temporary custody.
- Judge Davis conducted a forty-eight hour temporary custody hearing on July 9, 2012, and granted temporary custody to DSS for sixty days.
- Tribe intervened under ICWA and contested the temporary order; the court allowed later reconsideration but kept the emergency framework in place.
- Subsequent proceedings included reassignment to another judge, transfer motions, and partial transfer of one child’s case to Tribal Court; Tribe sought relief via the writ but the courts denied it, holding ICWA not fully applicable at the temporary stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICWA applies to temporary/emergency custody hearings. | Tribe argues ICWA should govern the temporary hearing. | State and courts maintain ICWA does not fully apply at the temporary stage. | ICWA does not apply fully to emergency/temporary custody hearings. |
| Whether the temporary custody hearing had sufficient evidence of need for temporary custody. | Tribe contends insufficient evidence was presented. | State relied on police report and ICWA affidavit to show need. | Evidence (police report and ICWA affidavit) adequate for temporary custody. |
| Whether Tribe is entitled to mandamus/prohibition relief to force a new hearing. | Tribe asserts a clear right to ICWA-complete procedures or a new hearing. | Trial courts complied with applicable law; no duty to grant writ. | Writ denied; Tribe failed to show a clear legal right to the relief sought. |
Key Cases Cited
- State ex rel. Juvenile Dep’t v. Charles, 688 P.2d 1354 (Or. Ct. App. 1984) (ICWA emergency removals recognized; §1922 applies.)
- D.E.D. v. State of Alaska, 704 P.2d 774 (Alaska 1985) (Certain ICWA notice provisions inapplicable to emergency custody.)
- Matter of the Welfare of J.A.S., 488 N.W.2d 332 (Minn. Ct. App. 1992) (Qualified Indian expert not required at initial detention in emergency removals.)
- In re S.B. v. Jeannie V., 30 Cal. Rptr. 3d 726 (Cal. Ct. App. 2005) (Not all ICWA provisions apply to detention/emergency hearings.)
- State ex rel. Children, Youth and Families Dep’t v. Marlene C., 248 P.3d 863 (N.M. 2011) (Emergency ex parte and custody stages treated as emergency proceedings with limited ICWA applicability.)