## Facts

- Two federally recognized tribes and three Native parent plaintiffs filed a § 1983 action seeking declaratory and injunctive relief concerning emergency removals of Indian children in Pennington County, South Dakota.
- Plaintiffs challenged countywide practices used at state-court emergency custody proceedings known as “48-hour hearings,” alleging systemic failures to provide a timely and adequate hearing required by the Fourteenth Amendment and the Indian Child Welfare Act (ICWA).
- Plaintiffs alleged the presiding circuit judge maintained and enforced a policy that ICWA did not apply at 48-hour hearings because the proceedings were “emergency” matters, with ICWA deferred to later stages.
- Plaintiffs alleged that, as implemented, the hearings were perfunctory: evidence was not admitted, the average hearing lasted only a few minutes (often about one minute), and children were routinely kept in state custody after the hearing.
- Plaintiffs alleged that the court generally did not decide whether the child could safely return home at the 48-hour hearing, and post-hearing orders effectively left return decisions to child-protection authorities without judicial directives requiring return.
- Plaintiffs alleged coercive practices that pressured parents to waive due process and ICWA protections after removals occurred.
- Defendants (sued in official capacities) included the local child-protection supervisor, the county state’s attorney, the presiding state-court judge for the judicial circuit, and the state social-services secretary.
- Plaintiffs moved to certify a class of similarly situated Native parents and custodians in Pennington County subjected to the challenged 48-hour hearing practices and policies.

## Issues

1. Whether the proposed class satisfied Rule 23(a) numerosity, commonality, typicality, and adequacy based on alleged uniform policies and practices governing 48-hour hearings for Indian children in Pennington County.
2. Whether certification under Rule 23(b)(2) was proper because defendants allegedly acted (or refused to act) on grounds generally applicable to the class and plaintiffs primarily sought declaratory and injunctive relief.

## Decision

- The court granted plaintiffs’ motion for class certification.
- The court certified a Rule 23(b)(2) class consisting of members of federally recognized Indian tribes residing in Pennington County who are parents or custodians of Indian children and who were subjected to the challenged 48-hour hearing practices.
- The court found numerosity satisfied given the substantial number of 48-hour hearings involving Indian children occurring annually in the county, making joinder impracticable.
- The court found commonality satisfied because plaintiffs targeted the same policies and practices applied across hearings, raising shared legal and factual questions capable of classwide resolution.
- The court found typicality satisfied because the named plaintiffs’ claims arose from the same alleged course of conduct and rested on the same legal theories (ICWA and due process violations) as the absent class members.
- The court found adequacy satisfied because the named plaintiffs’ interests aligned with the class, no disabling conflicts were shown, and counsel were capable of litigating the claims.
- The court found Rule 23(b)(2) satisfied because the case sought classwide declaratory and injunctive relief to change allegedly unlawful practices, not individualized damages.

## Legal Principles

- Rule 23(a) requires numerosity, commonality, typicality, and adequate representation; commonality is met when a shared contention about a uniform policy or practice is central to the claims and can be resolved for the class in a single proceeding.
- Rule 23(b)(2) permits certification when defendants are alleged to have acted on grounds generally applicable to the class and final injunctive or declaratory relief would provide classwide relief.
- Systemic challenges to official policies and customs governing child-removal hearings may be suitable for (b)(2) certification when the requested relief targets standardized procedures rather than case-specific outcomes.
- At the certification stage, the focus is whether Rule 23’s requirements are met; certification does not resolve ultimate liability on the underlying ICWA and due process claims.

## Conclusion

The court certified a Rule 23(b)(2) class allowing tribes and Native parents to pursue a single, classwide claim for declaratory and injunctive relief against alleged countywide policies and practices in Pennington County 48-hour child-custody hearings that purportedly violated ICWA and the Fourteenth Amendment’s due process requirements.


Oglala Sioux Tribe v. Van Hunnik, No. 5:13-cv-05020-JLV (D.S.D. Jan. 28, 2014)