Press "Enter" to skip to content

Five Judges Resisting Federal Court Order in DSS-ICWA Foster Care Case

The Department of Social Services balked at obeying a court order in the state's failed prosecution of foster care whistleblowers Brandon Taliaferro and Shirley Schwab in late 2012–early 2013. Now some judges seem to be getting in the act.

The Rosebud and Oglala Sioux Tribes and three Lakota parents are suing state and local officials over alleged violations of the Indian Child Welfare Act in South Dakota's placement of American Indian children in foster care. U.S. District Judge Jeffrey Viken ruled that the plaintiffs are entitled to custody hearing transcripts to help make their case. Four South Dakota circuit court judges and one retired judge are refusing to order the release of those transcripts:

Presiding Seventh Circuit Judge Jeff Davis has signed the order authorizing transcripts of hearings he supervised. But the attorney representing the other judges has said his clients will not sign orders releasing transcripts of their hearings, according to the court documents.

On Monday, the plaintiffs' attorneys filed a motion asking Viken to compel the judges or Davis to sign the transcript orders. Davis has refused to sign the transcript orders for the other judges, including Thorstenson, who left the bench a year ago.

Viken responded to the motion to compel by ordering the defendants to respond to the motion by March 28. Viken also gave the judges the same deadline to explain their reasons for not signing the orders [Andrea Cook, "Circuit Judges Accused of Ignoring Federal Judge's Order in Suit over Native Children Custody Hearings," Rapid City Journal, 2014.03.19].

I know judges can awfully owly about being bossed around in their own courtrooms. But when a federal judge says, "Do this," a state judge with respect for the judicial system ought to say, "Yes, sir!" Either these five judges have some pretty solid privacy arguments to make on behalf of children, or they are running interference for the state Department of Social Services against American Indian plaintiffs trying to protect their children and their tribe abuses by the state.


  1. Deb Geelsdottir 2014.03.19

    Maybe those non-compliant judges feel a need to cover their own butts?

  2. Nick Nemec 2014.03.19

    Since it's the transcript of a custody hearing were the parents at the hearing in question? I would think they would be entitled to it if they are one of the principals in the original hearing. Defendants responses should be interesting.

  3. Caitlin Collier 2014.03.19

    And just WHO are those five judges???? The public ought to know the South Dakota judges who believe they are immune from the authority of the federal courts.

  4. rollin potter 2014.03.19

    I am just a hill billy but my thoughts on these judges are that they started out as lawyers and that there business did not bring in the big dollars they expected so the people in there close nit society started them out as a magistrate and slowly worked them up to circuit judge and on up the line till they ended up as a super state supreme court judge!!! They know only what the book says!!!!!! and sometimes less!!!! I had one who committed suicide after so many bad rulings that he handed out got to him mentally!!!!

  5. mike from iowa 2014.03.20

    I'm betting on the interference charge cleverly disguised as privacy arguments. Steeeeeeerike 2,judges.

  6. Jerry 2014.03.20

    Always the money has to be considered and how it is dispersed. We always claim that we are clean but when it comes to money, hello mud.

  7. mike from iowa 2014.03.20

    Caitlin Collier-the last sentence in the second paragraph is highlighted. Click on that and it will take you to the story where the names of the judges are revealed.(March 19,RC Journal).

  8. caheidelberger Post author | 2014.03.21

    For the record, Caitlin: "Seventh Circuit judges Wally Eklund, Robert Mandel, Craig Pfeifle and Thomas Trimble, along with former judge Mary Thorstenson have refused to sign orders authorizing transcripts of certain hearings that Chief U.S. District Judge Jeffrey Viken has said the plaintiffs can have to pursue their case" [Cook, 2014.03.19].

  9. larry kurtz 2014.07.21


    ACLU files to unseal docs in SD Indian foster care case. Defendant refuses-says docs will lead to "embarrassment and public scandal"

  10. caheidelberger Post author | 2014.07.22

    Larry, do we have the documents yet on that filing? What is the judge hiding?

  11. SDTeacher 2014.07.23

    Our state judges don't want the federal judges, the tribes or citizens to find out that the judges are a rubber stamp for DSS. A and N hearings are an absolute joke where actual compliance with ICWA is replaced with filing the right paperwork and saying the right words in order to CYA.

Comments are closed.