Oglala Sioux Tribe et al v. Van Hunnik et al

Filing 218

ORDER denying 156 Motion to Compel. Signed by Chief Judge Jeffrey L. Viken on 2/19/16. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

OGLALA SIOUX TRIBE and ROSEBUD
SIOUX TRIBE, as parens patriae, to
protect the rights of their tribal
members; MADONNA PAPPAN, and
LISA YOUNG, individually and on behalf
of all other persons similarly situated,

CIV. 13-5020-JLV

ORDER DENYING
THE SDDSS DEFENDANTS'
MOTION TO COMPEL

Plaintiffs,
vs.
LUANN VAN HUNNIK; MARK VARGO;
HON. JEFF DAVIS; and LYNNE A.
VALENTI, in their official capacities,
Defendants.

INTRODUCTION

The South Dakota Department of Social Services ("SDDSS Defendants ")1
filed a motion to compel plaintiff Oglala Sioux Tribe to produce certain
documents.
(Docket 178).

(Docket 156).

Plaintiffs oppose the SDDSS Defendants' motion.

For the reasons stated below, the SDDSS Defendants' motion is

denied.
ANALYSIS

The SDDSS Defendants seek documents relating to children's cases which
were transferred under the Indian Child Welfare Act ("ICWA) from the Seventh
Judicial Circuit Court, Pennington County, South Dakota, to the jurisdiction of
1Ms. Van Hunnik retired after 30 plus years with the South Dakota
Department of Social Services.
(Docket 209 at p. 1 n. l). Ms. Lisa Fleming has
been appointed as the Regional Manager for Region 1. Id. A motion for
substitution of party pursuant to Fed. R. Civ. P. 25(d) has not been filed due to a
number of pending motions. Id.

the Oglala Sioux Tribal Court.

(Docket 156 at pp. 1-2).

The specific requests

for production of documents are as follows:
The Oglala Sioux Tribe Court,
Request for Production No. 1:
Juvenile Court file, (to include but not limited to all motions,
petitions, and accompanying documents, orders, and all such
materials contained in the Juvenile Court file), in the Oglala Sioux
Tribal Court, Oglala Sioux Tribe, Pine Ridge Indian Reservation,
associated with each of the following Seventh Judicial Circuit Court,
Pennington County, files:
Al0-270; Al0-306; Al0-460; Al0-487; Al0-587; Al0-649;
Al0-783; Al0-1007; Al0-1012; Al0-1017; Al0-1035;
Al0-1119; Al0-1170; Al0-1320; Al1-86; Al1-147;
All-152; All-161; All-321; All-359; All-441;
All-650; All-660; All-674; All-681; All-744;
All-772; All-869; All-893; All-1036; All-1060;
All-1103; All-1119; A12-191; A12-219; Al2-394
Al2-518; A12-659; Al2-698; Al2-712; A12-746;
A12-749; A12-791; Al2-839; A12-1022; Al3-20; Al3-30;
Al3-53; Al3-104; Al3-179; Al3-246; Al3-365; Al3-432;
Al3-560; A13-639; Al3-665; Al3-697; Al3-698; Al3-738;
A14-60; A14-444.
in which the Oglala Sioux Tribe on behalf of The Oglala Nation
Tiospaye Resource and Advocacy Center (ONTRAC) or other movant,
requested transfer from the jurisdiction of the Seventh Judicial
Circuit Court, Pennington County, to the Oglala Sioux Tribe.
Request for Production No. 2: The Oglala Sioux Tribe on behalf of
The Oglala Nation Tiospaye Resource and Advocacy Center
(ONTRAC) Program file of each parent(s) and/or child(ren),
(including all court documents, case worker reports, case worker
notes, narrative reports, risk assessment reports, visitation records,
correspondence, interviews, and home studies) associated with each
of the following Seventh Judicial Circuit Court, Pennington County,
files:
Al0-270; Al0-306; Al0-460; Al0-487; Al0-587; Al0-649;
Al0-783; Al0-1007; Al0-1012; Al0-1017; Al0-1035;
Al0-1119; Al0-1170; Al0-1320; All-86; All-147;
Al1-152; Al1-161; Al1-321; Al1-359; Al1-441;
Al1-650; Al1-660; Al1-674; Al1-681; Al1-744;
2

All-772; All-869; All-893; All-1036; All-1060;
All-1103; All-1119; A12-191; A12-219; Al2-394
Al2-518; Al2-659; Al2-698; Al2-712;
A12-746;
A12-749; A12-791; Al2-839; A12-1022; Al3-20; Al3-30;
Al3-53; Al3-104; Al3-179; Al3-246; Al3-365; Al3-432;
Al3-560; A13-639; Al3-665; Al3-697; Al3-698; Al3-738;
Al4-60; A14-444.
in which the Oglala Nation Tiospaye Resource and Advocacy Center
(ONTRAC) or other movant, requested transfer from the jurisdiction
of the Seventh Judicial Circuit Court, Pennington County, to the
Oglala Sioux Tribe.
(Docket 157-1 at pp. 2-4) (bold omitted).

The SDDSS Defendants seek access to

all the file materials of these sixty-one specifically identified cases.

(Docket 156

at p. 2).
The SDDSS Defendants argue this information is necessary to "confirm,
support, prove, and corroborate that from the time the children came into the
custody of [the SDDSS Defendants] . . . until the children were transferred to the
custody of the Oglala Sioux Tribal Court . . . that the children were subject to
imminent risk/impending danger and that custody of the children with their
parents was not in the best interests of the children. "
Plaintiffs oppose the motion.

(Docket 178).

"is based on an assumption of fact that is false. "

Id. at p. 7.

Plaintiffs argue the motion
Id. at p. 2.

Plaintiffs assert

that "[a]s attested to by Tribal Court Judge Sheena Mousseau, the tribal court is
entirely unaware of any of the facts of any individual case when it signs the
conditional order accepting jurisdiction in any particular case.

The tribal

court's findings, including the finding of likelihood of harm, is simply the tribal
court adopting and giving full faith and credit to the findings already made by the
3

state court when it signed the original temporary custody order."

Id. at p. 2.

Plaintiffs claim "[t]here is no independent evaluation of the facts and no evidence
presented to the tribal court when its [sic] signs the order accepting jurisdiction. "
Id. (referencing Docket 178-1).
The affidavit of Oglala Sioux Tribal Court ("OST'') Judge Sheena Mousseau
is the source of plaintiffs' argument.

(Docket 178-1).

OST Judge Mousseau

swore the "tribal court orders are conditional orders " representing that when the
State of South Dakota "agrees to transfer jurisdiction of the case to tribal court,
pursuant to ICWA, the Tribal Court will accept jurisdiction of the case."

Id. if 1.

OST Judge Mousseau stated the findings of fact contained in her conditional
orders "are not based on any review of facts submitted to the Tribal Court[], " but
rather rely on the findings of fact made in the state court orders, "including
findings that the children would suffer serious harm if returned to the custody of
their parent(s) and that return of custody would not be in the best interest of the
child. "

Id. iii! 3-4.

OST Judge Mousseau confirmed "[t]here is no independent

inquiry into the facts or history of any particular case by the Tribal Court. "

Id.

ir 4.

Because the tribal court did not take any evidence until after jurisdiction
was assumed by the tribal court, plaintiffs argue the tribal court and ONTRAC
records are not relevant "to the question of whether DSS has properly trained its
personnel on the requirements of Section 1922, nor would those ... tribal court
case files contain any information that would be likely lead to [sic] information
that is relevant to the failure to train issue. "
4

(Docket 178 at p. 3).

Plaintiffs

fur�her argue that "[w]hat happens in the tribal court after those cases are
transferred is of no relevance . . . . to the [training] issue [because] ICWA does not
apply [to] the tribal courts and DSS has no further involvement in the cases after
it transfers. "

Id.

The SDDSS Defendants counter that under the Oglala Sioux Tribe Child
and Family Code ("OST Family Code " ) certain procedures must be followed before
the tribal court can assume jurisdiction.

(Docket 188 at p. 5).

SDDSS

Defendants assert the OST Family Code requires the following steps:
1.

Once ONTRAC receives notice of state court custody
proceedings under ICWA, ONTRAC is required to notify the
[Lakota Oyate Wakanyeja Owicakiyapi ("LOWO ")] . . . and the
[Tribal Court]. Id. at p. 5 (OST Family Code citation omitted).

2.

LOWO is then mandated to perform an investigation and file a
written report with ONTRAC and the Tribal Court within five (5)
days . . . . In that report LOWO is mandated to make written
recommendations to ONTRAC regarding transfer from or
intervention in state court. Id. at pp. 5-6 (OST Family Code
citation omitted).

3.

If [a] petition to transfer is . . . appropriate, then ONTRAC is to
file the petition . . . within five (5) days . . . . Id. at p. 6 (OST
Family Code citation omitted).

The SDDSS Defendants argue the OST Family Code then requires certain
procedures to occur, "including ONTRAC taking physical and legal
custody, and placing the children in the care of a suitable foster or tiyospaye2
home pending further court action. "

Id.

Once the OST Attorney General files a

petition, the SDDSS Defendants argue there must be a "hearing . . . held in
accordance with the OST Code. "

Id.

2"Tiyospaye " or "tiospaye " refers in the Lakota language to the extended
family of the child.
5

The SDDSS Defendants assert that in compliance with the OST Family
Code requirements the following relevant records should exist:
1.

LOWO written reports based upon investigations... .

2.

LOWO written recommendations regarding transfers or
intervention....

3.

Child in Need of Care petition[s] filed by the [OST]
Attorney General. .. .

4.

Records or transcripts of hearings held 1n accordance
with the OST Code post transfer. ...

Id. (OST Family Code citations omitted). The defendants argue these records
are relevant because the investigative reports "may corroborate the
determination that children were subject to impending/imminent danger ... . "
Id. at p. 8. The defendants also argue the absence of such investigative reports
would be relevant to show "there ... exist[s] a lack of factual support to allege
that DSS employees are not properly trained and that others are deliberately
indifferent in the training."

Id. at p. 9.

"Rule 26(b) of the Federal Rules of Civil Procedure is widely recognized as a
discovery rule which is liberal in scope and interpretation, extending to those
matters which are relevant and reasonably calculated to lead to the discovery of
admissible evidence."

Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir.

1992). "While the standard of relevance in the context of discovery is broader
than in the context of admissibility (Rule 26(b)) clearly states that inadmissibility
is no grounds for objection to discovery .... "

Id. (referencing Oppenheimer

Fund, Inc. v. Sanders, 437 U. 340, 350'"51 (1978)). A party seeking discovery
S.
6

is merely required to make a threshold showing of relevance, which is more
relaxed than the showing required for relevance in the context of admissibility.
Id. at 351. The party resisting production of discovery bears the burden of
establishing lack of relevancy or that complying with the request would be
unduly burdensome. See St. Paul Reinsurance Co. v. Commercial Financial
Corp., 198 F.R.D. 508, 511 (N. Iowa 2000).
D.
ICWA governs child custody proceedings in state court and the assertion of
tribal court jurisdiction over a child.

See 25 U. C. § 1901
S.

et seq.

ICWA does

not govern how a tribe deals with an Indian child once tribal jurisdiction is
asserted and transfer from state jurisdiction occurs.

See id. at § 1911. The

OST Family Code provision for transfer of an Indian child from a state court
under ICWA is not relevant to the plaintiffs' failure to train claim against the
SDDSS Defendants. Whether the OST Tribal Court followed the OST Family
Code is likewise not relevant to the plaintiffs' failure to train claim which is the
basis for the SDDSS Defendants' motion to compel.

Resolution of whether the

SDDSS Defendants properly trained their staff and complied with federal law
must be based on the evidence which existed during the time each child's case
was in state court.

Looking to the conduct of the tribal court and its agencies

after-the-fact will not lead to the discovery of evidence relevant to plaintiffs'
failure to train claim.

7

Plaintiffs have carried their burden that the records sought are not
relevant to the failure to train claim before the court. For this reason, the
SDDSS Defendants' motion to compel is denied.
ORDER

Based on the above analysis, it is
ORDERED that the SDDSS Defendants' motion to compel (Docket 156) is
denied.
Dated February 19, 2016.
BY THE COURT:

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