In March 2013, the Oglala Sioux Tribe, the Rosebud Sioux Tribe, and three Indian parents filed a first-of-its-kind suit in federal court under the Indian Child Welfare Act and the Fourteenth Amendment. Judges and state attorneys were blowing through the initial hearings that are required after removing an Indian child from a parent. Parents didn’t know they had a right to an attorney; they were being denied the chance to contest claims of neglect or abuse. The result? Children were separated from their families for months before a meaningful opportunity to fight for their return arose.
Social workers have been taking children away from parents based on nothing more than a report about the parent or a parent’s arrest. In one South Dakota county, more than 1,000 Indian children have been removed from their homes since 2010. Fifty-two percent of children in foster care in the state are Indian. Of course, there’s a long and terrible history of state actors removing Indian children from their homes.
District Court Judge Jeffrey Viken granted the tribes standing to sue under the ICWA and certified Indian parents as a class for the first time. He went on to rule for the plaintiffs, cataloging state failures and mandating reforms. Then it went to the Eighth Circuit.
It’s not that the Eighth Circuit said that South Dakota’s practices are fine; it just said that federal courts shouldn’t intervene. The three judges are relying on a principle of abstention established in 1979 in Younger v. Harris, that federal courts should generally let state courts decide state issues.
Their reasoning draws heavily, but not well, from ignoble Supreme Court precedent. There’s a 1979—yes, 1979—case called Moore v. Sims in which a five-justice majority decided that Younger abstention doctrine should apply to a federal district court challenge to Texas child custody procedures because Texas hadn’t specifically banned parents from litigating the issues in-state.
[T]he only pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims, and Texas law appears to raise no procedural barriers.
The Eighth Circuit’s even more problematic version of the same language in 2018:
Although the plaintiffs complain that state court proceedings do not afford parents an adequate opportunity to raise broad constitutional challenges under the Due Process Clause, they have not established that South Dakota courts are unwilling or unable to adjudicate their federal claims.
The plaintiffs came to federal court because they lacked access to a meaningful state forum. The custody hearings the Eighth Circuit claims it cannot interfere with or hardly give the parents a chance to vindicate their rights. The judges went out of their way to sink this case.
The tribes and parents still could have prevailed had the Eighth Circuit recognized the case falls under one or both exceptions to Younger abstention. The exceptions? Instances of overt unconstitutionality and tremendous harm. The judges’ rejection of those arguments makes for chilly reading.
Th[e] exception for “patently unconstitutional” actions is “extremely narrow,” and it does not apply here. The plaintiffs do not challenge the constitutionality of a statute at all, and they have not established that the alleged procedural deficiencies at the 48-hour hearings threaten “irreparable loss [that] is both great and immediate.”
The procedural deficiencies to which the court refers routinely result in family separation lasting months, a practice now nationally decried.
The Moore dissent by Justice John Paul Stevens, who was joined by Justices William Brennan, Potter Stewart, and Thurgood Marshall, could have been written yesterday.
Younger abstention in these circumstances does not merely deprive the plaintiffs of their right to initiate new claims in the forum of their choice. Far more seriously, it deprives them of any relief at all. For this state forum could not and did not afford plaintiffs the sufficient opportunity to vindicate their constitutional rights that is not only a predicate to a Younger dismissal, but also their entitlement under the Constitution.
There are a great many dissents in Supreme Court history that later, following progress, became the law of the land—especially when it comes to civil rights. If this case were to be appealed to a Supreme Court that included Merrick Garland, there’d be a solid chance of this dissent joining those ranks. Instead, this case will almost certainly end here. Its demise reflects the stakes of the battle over judicial nominations.
It would have been easy for the Eighth Circuit to find for the plaintiffs under any of the three above analyses—under Moore’s principles, as patently unconstitutional, or in light of the tremendous harms. Indeed, a more liberal panel probably would have. The same laws are wielded differently by different judges; it’s not enough to elect good lawmakers, we must fight for the judiciary.