Tagged: class actions


The Indian Child Welfare Act, Class Action Suits, and Open Hearings

The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 to address the widespread removal by the state of Indian children from their families. I write this in nearly every brief I write and say it nearly ever talk I give. It’s rote, but every piece of it is important. The act is named for Indian children. It is a federal law passed more than 30 years ago. It is a federal law that applies in state court. State actors (social workers, judges, and guardians ad litem) removed Indian children for reasons usually governed by non-Native cultural standards. And the State took children from their parents, permanently.

ICWA contains a number of provisions to prevent removal on primarily cultural reasons. The main effect of these provisions is to slow down the process of removal. This slowing down is the purpose of the law, but is also the a cause of resentment among the people who are bound by the law. Recently, in South Dakota, the Oglala Sioux, Rosebud Sioux tribes, and parents sued the Department of Social Services for removing children in violation of the Due Process clause and ICWA. Oglala Sioux Tribe v. Van Hunnik survived a motion to dismiss, the plaintiffs were successfully certified as a class,  and recently the South Dakota courts in one county were forced to turn over the transcripts for the emergency “48 hour hearings” where the violations are alleged (the judges objected, but the court reporters were then required to turn them over under the All Writs Act).

One of the main arguments against turning over these transcripts is the state-created expectation of privacy because the hearings are closed. Not all states have their abuse and neglect (or “child in need of care” or “48 hour hearing” or “child in need of protection”) hearings closed. In Michigan, the hearings are open, as they are in Minnesota. Both states also have ICWA court monitoring programs in various counties. The privacy arguments against open hearings for both parents and children are real. However, the actions of the South Dakota courts shows what happens when hearings are closed (hearings happen in less than 2 minutes, no evidence for removal, etc.). Open hearings have their problems (process familiarity, too fast, difficult to hear, assumption that parent’s attorneys are explaining the process outside of the courtroom, lack of privacy), but closed hearings can lead to a significant and troubling abuse of the process.

In her book, Ordinary Injustice, Amy Bach discusses issues with criminal hearings where all of the parties know each other except the accused. The same happens in abuse and neglect cases. One of her proposed solutions is monitoring hearings by outside observers. This is the same goal as ICWA courtroom observation projects–ensuring compliance with the law through the presence of outside observers. The South Dakota case demonstrates what can happen when concerns with privacy trumps the benefit of sunshine.


The Civil Procedure, Civil Rights, Class Action Connection to the Chicago Olympic Bid

By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.

The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.

On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.

By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.

To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.

I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.