Zimmer, Duncan & Cole

Free Speech, Indian Custody Rules

The only common thread found in this week’s court decisions is that they are hot-button, federal issues involving other people’s children:  one a First Amendment case about a fallen soldier, and the other a custody case about a six-year old Indian child removed from his home for abuse and neglect.   

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I’ve heard a few  questions (and complaints) about the U.S. Supreme Court’s decision, which allows the Westboro Baptist Church to continue their unusual protests at military funerals. 

In Snyder v. Westboro Baptist Church, the father of a fallen solider sued the church for picketing his son’s funeral near Baltimore.  The picketers carried numerous signs that explained their belief that God killed soldiers to punish America for its tolerance of homosexuality. The signs included messages like “Thank God for Dead Soldiers,” “America is Doomed,” “God Hates You,” and “Don’t Pray for the USA.” 

A jury awarded the soldier’s father $2.9 million in damages for the emotional distress caused by the protests and $8 million in punitive damages. 

The Supreme Court voided the jury’s verdict.  It ruled that damages were simply not allowed in this type of case.  The speech was about a matter of public concern, and the church had staged similar protests about the same issues for thirty years.  The protesters did not violate any local ordinances.  In fact, they asked local law enforcement for advice about where to hold their peaceful protests, and found a suitable place on public land along a street.

I’ve heard many negative reactions to this opinion— primarily that it allows free speech to go too far.  Understandably, many people are uncomfortable with the setting:  vile speech hurled about in public at the most vulnerable, private time in someone’s life, at the burial of their own child.

The Court hints that instead of a million-dollar lawsuit, the solution next time might be local ordinances that specifically protect funerals from protests of all kinds, without regard to their content.  (Maryland adopted such a law after this incident.) 

And above all, the Court believes that encouraging “more, better speech” is the true solution, rather than less speech or censorship.  “As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

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In state Supreme Court news, the eighth opinion of this year involves an abused and neglected child. The case is called In the Matter of D.W. (2011 S.D. 8).  (The Court refers to juveniles by their initials for privacy’s sake.)

D.W. is Lakota.  He is now ten years old.  At age six, he was removed from his mother’s home.  The court soon terminated the parental rights of both mother and father and began looking for a new home. 

In every state, a child custody case involving an Indian child must follow certain rules established by the federal government in the Indian Child Welfare Act.  The Act was adopted in 1978 to help preserve Indian heritage and stop a harmful, decades-long tradition of removing Indian children from their homes, families, tribes, and culture.

Now, when an Indian child is taken out of his home, the state court must place that child with his extended family, his own tribe, or an Indian family from another tribe. 

Exceptions are allowed for “good cause”.  Here, the Department of Social Services spent almost four years trying to find a suitable placement within those guidelines.  The closest match was the girlfriend of D.W.’s father.  However, this didn’t make sense because the father’s rights had been terminated.    Eventually, the Department placed D.W. with a family in Michigan who didn’t match the guidelines. 

The appeal here was to hear the objection of the Oglala Sioux Tribe that there was not “good cause” for this placement outside of the guidelines.  The Court rejected the argument, and will permit the placement.  Finally, after almost four years, D.W. will have a permanent home.

You can find the full opinion on the state Supreme Court website, at www.sdjudicial.com. 

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Have a question about the law? In this weekly column, I explain recent court cases and answer your legal questions in plain English. Send an email to dan@zdclaw.com or a letter to “Less Legalese, Please,” 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108.  I will try to answer as many as I can with as little “legal-ese” as possible.

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Daniel K. Brendtro is a trial attorney from Sioux Falls. His firm, Zimmer, Duncan & Cole, LLP, has represented clients statewide since 1948 on all types of cases, including injuries, accidents, criminal defense, and business lawsuits.