Federal judge delays ruling in Indian child welfare lawsuit

RAPID CITY, S.D. (AP) – Attorneys for several Native American tribes and families that are suing South Dakota say they need to see records of a circuit court judge’s conversations to show how he ordered fellow judges to handle child custody hearings that they say violate federal law.

The attorneys for the Oglala Sioux and Rosebud Sioux tribes and several Native American parents contended during a hearing Thursday that 7th Circuit Judge Jeff Davis must reveal how he advised fellow judges to conduct 48-hour child custody hearings, the Rapid City Journal reported.

Chief U.S. District Judge Jeff Viken did not issue a ruling at the hearing. His ruling could be crucial in the 2-year-old lawsuit that alleges the state routinely violates the U.S. Indian Child Welfare Act by holding improper hearings after children are removed from homes.

The plaintiffs contend that judges act quickly and without giving Native American parents due process when children are removed from their homes. They say parents’ rights are violated at initial custody hearings, which must be held within 48 hours of an accusation of abuse. The families say they’re not allowed to challenge workers from the Department of Social Services or prove they can take care of their children.

Davis is the presiding judge of the 7th Circuit, which means he makes administrative decisions for the circuit. Attorneys for the plaintiffs say that Davis has advised his colleagues on how to conduct 48-hour hearings.

He has refused to release any documents he considers protected communication, believing he has judicial privilege. The judge also has objected to say whether he may have had any conversations with judges on the procedures for 48-hour hearings.

ACLU attorney Stephen Pevar, representing the plaintiffs, said in court that all of the 7th Circuit judges handling abuse and neglect cases follow the same procedures for those hearings. There has to be a reason they all follow the same procedure, he said, which is why the plaintiffs are requesting Davis’ records.

“Our burden is to prove these are more than random acts,” Pevar said. “We need to know to the extent (Davis) is a policy-maker and to what extent he is involved.”

Davis’ attorney, Nathan Oviatt, said judges have a difficult job and must deal with unsavory issues, therefore they have to be free to have confidential communication with their staff, attorneys and colleagues.

Viken said he intends to issue a ruling by the end of March.

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Information from: Rapid City Journal, http://www.rapidcityjournal.com