PROTECT_ORDER,CLOSED
U.S. District Court District of South Dakota (Western Division) CIVIL DOCKET FOR CASE #: 5:13-cv-05020-JLV

Oglala Sioux Tribe et al v. Van Hunnik et al Assigned to: Chief Judge Jeffrey L. Viken Case in other court: 8th Circuit, 17-01135
8th Circuit, 17-01136 8th Circuit, 17-01137 Cause: 42:1983 Civil Rights Act - Civil Action for Deprivation of Rights

Date Filed: 03/21/2013 Date Terminated: 01/16/2020 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Oglala Sioux Tribe as parens patriae, to protect the rights of their tribal members

represented by Dana Hanna Hanna Law Office, P.C. P.O. Box 3080 629 Quincy Street, #105 Rapid City, SD 57709 (605) 791-1832 Fax: (605) 791-1834 Email: dhanna@midconetwork.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen L. Pevar ACLU Foundation (Hartford, CT) 765 Asylum Avenue Hartford, CT 06105 (860) 570-9830 Fax: (860) 570-9840 Email: pevaraclu@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew J. Knecht Knecht Law Offices 401 East 8th Street, Suite 200B Sioux Falls, SD 57103 (605) 274-1004 Fax: (888) 501-5631 Email: andrew@ajknechtlaw.com TERMINATED: 01/27/2014

Plaintiff Rosebud Sioux Tribe as parens patriae, to protect the rights of their tribal members
Plaintiff Rochelle Walking Eagle individually and on behalf of all

Rachel E. Goodman ACLU (New York, NY) 125 Broad Street, 18th Floor New York, NY 10004-2400 (212) 549-2663 Fax: (212) 549-2654 Email: rgoodman@aclu.org TERMINATED: 04/26/2016 PRO HAC VICE
Robert J. Doody PO Box 509 Sisseton, SD 57262 Email: robert@rjdoodylaw.com TERMINATED: 07/29/2013
represented by Dana Hanna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew J. Knecht (See above for address) TERMINATED: 01/27/2014
Rachel E. Goodman (See above for address) TERMINATED: 04/26/2016 PRO HAC VICE
Robert J. Doody (See above for address) TERMINATED: 07/29/2013
represented by Dana Hanna (See above for address) LEAD ATTORNEY

other persons similarly situated TERMINATED: 07/11/2014
Plaintiff Madonna Pappan individually and on behalf of all other persons similarly situated
Plaintiff

ATTORNEY TO BE NOTICED
Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew J. Knecht (See above for address) TERMINATED: 01/27/2014
Rachel E. Goodman (See above for address) TERMINATED: 04/26/2016 PRO HAC VICE
Robert J. Doody (See above for address) TERMINATED: 07/29/2013
represented by Dana Hanna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew J. Knecht (See above for address) TERMINATED: 01/27/2014
Rachel E. Goodman (See above for address) TERMINATED: 04/26/2016 PRO HAC VICE
Robert J. Doody (See above for address) TERMINATED: 07/29/2013

Lisa Young individually and on behalf of all other persons similarly situated
V. Defendant Lisa Fleming in their official capacities
Defendant Mark Vargo in their official capacities

represented by Dana Hanna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L. Pevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew J. Knecht (See above for address) TERMINATED: 01/27/2014
Rachel E. Goodman (See above for address) TERMINATED: 04/26/2016 PRO HAC VICE
Robert J. Doody (See above for address) TERMINATED: 07/29/2013
represented by Robert L. Morris Morris Law Firm PO Box 370 Belle Fourche, SD 57717-0370 (605) 723-7777 Fax: (605) 723-8888 Email: bobmorris@westriverlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by J. Crisman Palmer Gunderson, Palmer, Goodsell & Nelson, LLP PO Box 8045 Rapid City, SD 57709-8045 342-1078 Fax: 342-9503

Defendant
Honorable Craig Pfeifle in their official capacities

Email: cpalmer@gpna.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Frankenstein Gunderson, Palmer, Nelson & Ashmore, LLP 506 Sixth Street PO Box 8045 Rapid City, SD 57709-8045 (605) 342-1078 Fax: (605) 342-0480 Email: sfrankenstein@gpna.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey R. Connolly Gunderson, Palmer, Nelson & Ashmore, LLP 506 Sixth Street PO Box 8045 Rapid City, SD 57709-8045 (605) 342-1078 Fax: (605) 719-3471 TERMINATED: 12/09/2016
Rebecca L. Mann Gunderson, Palmer, Nelson & Ashmore, LLP 506 Sixth Street PO Box 8045 Rapid City, SD 57709-8045 (605) 342-1078 Fax: (605) 342-0480 Email: rmann@gpna.com ATTORNEY TO BE NOTICED
represented by Jeffrey G. Hurd Bangs, McCullen, Butler, Foye & Simmons PO Box 2670 Rapid City, SD 57709 343-1040 Fax: 343-1503 Email: jhurd@bangsmccullen.com

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine M. Sabers Lynn, Jackson, Shultz & Lebrun, PC PO Box 8250 Rapid City, SD 57709-8250 342-2592 Fax: 342-5185 Email: csabers@lynnjackson.com TERMINATED: 06/03/2016
G. Verne Goodsell Goodsell & Oviatt Law Firm 246 Founders Park Dr., Suite 201 PO Box 9249 Rapid City, SD 57709 (605) 343-3000 Fax: (605) 343-3251 Email: verne@goodselloviatt.com TERMINATED: 03/29/2016
Nathan R. Oviatt Goodsell & Oviatt Law Firm 246 Founders Park Dr., Suite 201 PO Box 9249 Rapid City, SD 57709 (605) 343-3000 Fax: (605) 343-3251 Email: nate@goodselloviatt.com TERMINATED: 03/29/2016
Robert B. Anderson May, Adam, Gerdes & Thompson LLP PO Box 160 503 South Pierre Street Pierre, SD 57501 (605) 224-8803 Fax: (605) 224-6289 Email: rba@mayadam.net TERMINATED: 05/16/2016
Robert L. Morris (See above for address) TERMINATED: 05/24/2016

Defendant Lynne A. Valenti in their official capacities TERMINATED: 02/06/2019
Defendant M. Gregory DeSautel in his official capacity
Defendant Luann Van Hunnik in their official capacities TERMINATED: 03/07/2016
Defendant Hon. Jeff Davis in their official capacities TERMINATED: 03/07/2016

Terence R. Quinn The Quinn Law Firm 3620 Homestead Street Rapid City, SD 57703 605-519-8623 Email: quinnlaw.tq@gmail.com TERMINATED: 03/29/2016
represented by Robert L. Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert L. Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert L. Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ann F. Mines-Bailey Attorney General of South Dakota 1302 E. Highway 14 Suite 1 Pierre, SD 57501-8501 (605) 773-3215 Fax: (605) 399-6041 Email: ann.mines@state.sd.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan R. Oviatt (See above for address) TERMINATED: 03/29/2016 LEAD ATTORNEY

Defendant Kim Malsam-Rysdon in their official capacities TERMINATED: 02/28/2014
Interested Party Judge Eklund TERMINATED: 12/15/2016
Interested Party Judge Trimble TERMINATED: 12/15/2016
Interested Party

Steven R. Blair Attorney General of South Dakota 1302 E. Highway 14 Suite 1 Pierre, SD 57501-8501 773-3215 Email: Steven.blair@state.sd.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
G. Verne Goodsell (See above for address) TERMINATED: 03/29/2016
Roxanne Giedd Attorney General of South Dakota 1302 E. Highway 14 Suite 1 Pierre, SD 57501-8501 773-3215 Fax: 773-4106 Email: roxanne.giedd@state.sd.us TERMINATED: 02/26/2015
Terence R. Quinn (See above for address) TERMINATED: 03/29/2016
represented by Robert L. Morris (See above for address) LEAD ATTORNEY
represented by Robert B. Anderson (See above for address) TERMINATED: 05/16/2016
represented by Robert B. Anderson (See above for address) TERMINATED: 05/16/2016

Judge Thorstensen TERMINATED: 12/15/2016 Interested Party Judge Pfleifle TERMINATED: 12/15/2016
Interested Party Judge Mandel TERMINATED: 12/15/2016 Interested Party Nathan R. Oviatt TERMINATED: 12/15/2016
Interested Party Jacob Quasney TERMINATED: 12/15/2016
Amicus United States

represented by Robert B. Anderson (See above for address) TERMINATED: 05/16/2016
represented by Jeffrey G. Hurd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. Anderson (See above for address) TERMINATED: 05/16/2016
represented by Robert B. Anderson (See above for address) TERMINATED: 05/16/2016
represented by Gerald D. Johnson Lynn, Jackson, Shultz & Lebrun, PC 909 Saint Joseph Street, Suite 800 Rapid City, SD 57701-3301 (605) 342-2592 Fax: (605) 342-5185 Email: jjohnson@lynnjackson.com TERMINATED: 05/16/2016
represented by Paul E. Bachand Moreno & Bachand, P.C. PO Box 1174 Pierre, SD 57501 (605) 224-0461 Fax: (605) 224-1607 Email: pbachand@pirlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregg Ragu-Jara U.S. Department of Justice Ben Franklin Station

PO Box 7415 Washington, DC 20044 (202) 514-3473 Fax: (202) 514-4231 Email: ragu-jara.gregg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Verlin Deerinwater U.S. Department of Justice 601 D St., NW Room 5928 Washington, DC 20004 (202) 514-6260 Fax: (202) 514-6273 Email: verlin.deerinwater@usdoj.gov TERMINATED: 04/04/2017

Date Filed 03/21/2013
03/21/2013 03/21/2013 03/21/2013 03/21/2013

# Docket Text
1 COMPLAINT, filed by Oglala Sioux Tribe, Rochelle Walking Eagle, Madonna Pappan, Lisa Young, Rosebud Sioux Tribe. (Attachments: # 1 Exhibit 1 - Transcript of Temporary Custody Hearing, # 2 Exhibit 2 - Custody Order, # 3 Exhibit 3 - Indian Child Welfare Act (ICWA) Blank Affidavit, # 4 Exhibit 4 - Blank Temporary Custody Order, # 5 Exhibit 5 - Transcript of Temporary Custody Hearing, # 6 Exhibit 6 - July 3, 2012 letter from Judge Thorstenson, # 7 Exhibit 7 - Temporary Custody Order) (SLT) (Attachment 1 replaced on 4/12/2013) (SKK). (Attachment 2 replaced on 4/12/2013) (SKK). (Attachment 5 replaced on 4/12/2013) (SKK). (Attachment 7 replaced on 4/12/2013) (SKK). (Entered: 03/21/2013)
2 CIVIL COVER SHEET. (SLT) (Entered: 03/21/2013)
3 Civil Filing fee received: Fee Amount: $350.00, Receipt No.: #SDX500003005. (SLT) (Entered: 03/21/2013)
4 Summons Issued as to Jeff Davis, Kim Malsam-Rysdon, Luann Van Hunnik, Mark Vargo. 2 true and correct copies of each summons hand delivered to counsel. (SLT) (Entered: 03/21/2013)
5 MOTION to Seal Document by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young.

04/09/2013 04/11/2013 04/11/2013 04/12/2013
04/15/2013 04/15/2013 04/15/2013 04/15/2013 04/16/2013 04/18/2013 04/18/2013 04/18/2013 04/18/2013

(Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 5, # 4 Exhibit 7)(SLT) (Entered: 03/21/2013)
6 MOTION to Expedite Discovery by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. (Pevar, Stephen) (Entered: 04/09/2013)
7 ORDER requiring response. Signed by Chief Judge Jeffrey L. Viken on 4/11/13. (SB) (Entered: 04/11/2013)
8 ORDER granting 5 Motion to Seal Document. Signed by Chief Judge Jeffrey L. Viken on 4/11/13. (SB) (Entered: 04/11/2013)
9 MOTION for Attorney Rachel E. Goodman to be Admitted Pro Hac Vice (paid $100 PHV fee; receipt number 0869-1598262)by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. (Pevar, Stephen) Modified docket text to add payment information on 4/12/2013 (SST). (Entered: 04/12/2013)
10 ORDER granting 9 Motion for Admission Pro Hac Vice of Rachel E. Goodman. Signed by Chief Judge Jeffrey L. Viken on 4/15/13. (SB) (Entered: 04/15/2013)
11 NOTICE of Appearance by Ann F. Mines on behalf of Jeff Davis (Mines, Ann) (Entered: 04/15/2013)
12 NOTICE of Appearance by Roxanne Giedd on behalf of Jeff Davis (Giedd, Roxanne) (Entered: 04/15/2013)
13 NOTICE of Appearance by Nathan R. Oviatt on behalf of Jeff Davis (Oviatt, Nathan) (Entered: 04/15/2013)
14 NOTICE of Appearance by Robert L. Morris on behalf of Kim Malsam-Rysdon, Luann Van Hunnik (Morris, Robert) (Entered: 04/16/2013)
15 NOTICE of Appearance by J. Crisman Palmer on behalf of Mark Vargo (Palmer, J.) (Entered: 04/18/2013)
16 NOTICE of Appearance by Sara Frankenstein on behalf of Mark Vargo (Frankenstein, Sara) (Entered: 04/18/2013)
17 RESPONSE to Motion re 6 MOTION to Expedite Discovery filed by Jeff Davis. (Oviatt, Nathan) (Entered: 04/18/2013)
18 BRIEF in Support re 17 RESPONSE to Motion by Jeff Davis. (Oviatt, Nathan) Modified linkage on 4/18/2013 (SST). (Entered: 04/18/2013)

04/18/2013 04/18/2013 04/18/2013 04/18/2013
04/18/2013 04/22/2013 04/22/2013
04/23/2013 05/07/2013 05/13/2013 05/13/2013 05/13/2013

19 AFFIDAVIT of Stan Zolczynski re 18 BRIEF in Support by Jeff Davis . (Oviatt, Nathan) Modified likage on 4/18/2013 (SST). (Entered: 04/18/2013)
20 CERTIFICATE OF SERVICE re 17 RESPONSE to Motion by Jeff Davis. (Oviatt, Nathan) Modified linkage on 4/18/2013 (SST). (Entered: 04/18/2013)
21 JOINDER by Defendant Mark Vargo re 17 Response to Motion to Resist Plaintiffs' Motion for Expedited Discovery. (Palmer, J.) Modified linkage on 4/18/2013 (SST). (Entered: 04/18/2013)
22 AFFIDAVIT of Roxanne Erickson re 21 Joinder in Defendant Hon. Jeff Davis' Resistance to Plaintiffs' Motion for Expedited Discovery. (Palmer, J.) Modified linkage on 4/18/2013 (SST). (Entered: 04/18/2013)
23 JOINDER by Defendants Kim Malsam-Rysdon, Luann Van Hunnik re 6 MOTION to Expedite Discovery, 17 Response to Motion, 18 Brief. (Morris, Robert) (Entered: 04/18/2013)
24 MOTION Class Certification by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. (Pevar, Stephen) (Entered: 04/22/2013)
25 MEMORANDUM in Support re 24 MOTION Class Certification filed by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. (Attachments: # 1 Exhibit)(Pevar, Stephen) (Entered: 04/22/2013)
26 REPLY to Motion Response re 6 MOTION to Expedite Discovery filed by All Plaintiffs. (Attachments: # 1 Appendix)(Pevar, Stephen) (Entered: 04/23/2013)
27 MOTION for Leave to File Excess Pages by Jeff Davis. (Oviatt, Nathan) (Entered: 05/07/2013)
28 RESPONSE to 24 Motion for Miscellaneous Relief (Class Certification) filed by Jeff Davis. (Oviatt, Nathan) (Entered: 05/13/2013)
29 MEMORANDUM in Opposition re 24 MOTION Class Certification filed by Mark Vargo. (Palmer, J.) (Entered: 05/13/2013)
30 JOINDER by Defendants Kim Malsam-Rysdon, Luann Van Hunnik re 28 Response, 29 Memorandum in Opposition to

05/15/2013
05/16/2013 05/17/2013 05/17/2013 05/17/2013 05/17/2013 05/20/2013 05/20/2013 05/20/2013 05/20/2013 05/23/2013 06/04/2013 06/06/2013

Motion, 24 MOTION Class Certification. (Morris, Robert) (Entered: 05/13/2013)
31 RESPONSE to Motion re 27 MOTION for Leave to File Excess Pages filed by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. (Pevar, Stephen) (Entered: 05/15/2013)
32 ORDER granting 27 Motion for Leave to File Excess Pages. Signed by Chief Judge Jeffrey L. Viken on 5/16/13. (SB) (Entered: 05/16/2013)
33 MOTION to Dismiss by Jeff Davis. (Oviatt, Nathan) (Entered: 05/17/2013)
34 MEMORANDUM in Support re 33 MOTION to Dismiss filed by Jeff Davis. (Oviatt, Nathan) (Entered: 05/17/2013)
35 CERTIFICATE of Word Count by Jeff Davis. (Oviatt, Nathan) (Entered: 05/17/2013)
36 JOINDER by Defendants Kim Malsam-Rysdon, Luann Van Hunnik re 33 MOTION to Dismiss, 34 Memorandum in Support of Motion. (Morris, Robert) (Entered: 05/17/2013)
37 MOTION to Dismiss by Kim Malsam-Rysdon, Luann Van Hunnik. (Morris, Robert) (Entered: 05/20/2013)
38 MEMORANDUM in Support re 37 MOTION to Dismiss filed by Kim Malsam-Rysdon, Luann Van Hunnik. (Morris, Robert) (Entered: 05/20/2013)
39 MOTION to Dismiss in Lieu of Answer by Mark Vargo. (Palmer, J.) (Entered: 05/20/2013)
40 MEMORANDUM in Support re 39 MOTION to Dismiss in Lieu of Answer filed by Mark Vargo. (Palmer, J.) (Entered: 05/20/2013)
41 REPLY to Motion Response re 24 MOTION Class Certification filed by All Plaintiffs. (Pevar, Stephen) (Entered: 05/23/2013)
42 MOTION for Leave to File Excess Pages by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe. (Pevar, Stephen) (Entered: 06/04/2013)
43 REPLY to 33 Motion to Dismiss filed by All Plaintiffs. (Pevar, Stephen) (Entered: 06/06/2013)

06/09/2013 06/10/2013 06/12/2013 06/18/2013 06/19/2013 06/19/2013 06/24/2013 06/26/2013 06/28/2013 07/19/2013 07/19/2013 07/29/2013 09/20/2013
12/11/2013 12/12/2013 12/23/2013

44 REPLY to 37 Motion to Dismiss by DSS Defendants filed by All Plaintiffs. (Pevar, Stephen) (Entered: 06/09/2013)
45 REPLY to 39 Motion to Dismiss by Defendant Vargo filed by All Plaintiffs. (Pevar, Stephen) (Entered: 06/10/2013)
46 ORDER granting 42 Motion for Leave to File Excess Pages. Signed by Chief Judge Jeffrey L. Viken on 6/12/13. (SB) (Entered: 06/12/2013)
47 MOTION to Extend re 44 Reply by Kim Malsam-Rysdon, Luann Van Hunnik. (Morris, Robert) (Entered: 06/18/2013)
48 REPLY to 43 Reply filed by Jeff Davis. (Oviatt, Nathan) (Entered: 06/19/2013)
49 ORDER granting 47 Motion to Extend. Signed by Chief Judge Jeffrey L. Viken on 6/19/13. (SB) (Entered: 06/19/2013)
50 REPLY to 45 Reply in Support of Defendant Vargo's Motion to Dismiss filed by Mark Vargo. (Palmer, J.) (Entered: 06/24/2013)
51 RESPONSE to 44 Reply filed by Kim Malsam-Rysdon, Luann Van Hunnik. (Morris, Robert) (Entered: 06/26/2013)
52 REPLY to 33 Motion to Dismiss Notice of Supplemental Authority filed by All Plaintiffs. (Pevar, Stephen) (Entered: 06/28/2013)
53 REPLY to 52 Reply filed by Jeff Davis. (Oviatt, Nathan) (Entered: 07/19/2013)
54 JOINDER by Defendant Mark Vargo re 53 Reply to Plaintiffs' Notice of Supplemental Authority. (Frankenstein, Sara) (Entered: 07/19/2013)
55 NOTICE of Appearance by Andrew J. Knecht on behalf of All Plaintiffs (Knecht, Andrew) (Entered: 07/29/2013)
56 REQUEST for Judicial Notice by Plaintiffs Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young . (Pevar, Stephen) (Entered: 09/20/2013)
57 NOTICE by Oglala Sioux Tribe Notice of New Authority. (Hanna, Dana) (Entered: 12/11/2013)
58 ORDER for further briefing. Signed by Chief Judge Jeffrey L. Viken on 12/12/13. (SB) (Entered: 12/12/2013)
59 SUPPLEMENT by Defendant Jeff Davis re 58 Order (53) Supplement to Reply. (Oviatt, Nathan) (Entered: 12/23/2013)

12/23/2013 12/26/2013 01/08/2014 01/14/2014 01/16/2014 01/17/2014 01/17/2014 01/27/2014 01/27/2014 01/28/2014 01/28/2014 01/28/2014 01/28/2014 02/06/2014

60 JOINDER by Defendants Kim Malsam-Rysdon, Luann Van Hunnik re 58 Order, 59 Supplement . (Morris, Robert) (Entered: 12/23/2013)
61 JOINDER by Defendant Mark Vargo re 58 Order, 59 Supplement . (Palmer, J.) (Entered: 12/26/2013)
62 RESPONSE to Motion re 33 MOTION to Dismiss Plaintiffs' Supplemental Brief filed by All Plaintiffs. (Pevar, Stephen) (Entered: 01/08/2014)
63 REPLY to 62 Response to Motion filed by Jeff Davis. (Oviatt, Nathan) (Entered: 01/14/2014)
64 JOINDER by Defendant Mark Vargo re 63 Reply to Supplemental Brief. (Palmer, J.) (Entered: 01/16/2014)
65 JOINDER by Defendants Kim Malsam-Rysdon, Luann Van Hunnik re 63 Reply, 58 Order, 59 Supplement, 62 Response to Motion . (Morris, Robert) (Entered: 01/17/2014)
66 MOTION to Withdraw as Attorney by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. (Knecht, Andrew) (Entered: 01/17/2014)
67 ORDER granting 66 Motion to Withdraw as Attorney. Attorney Andrew J. Knecht terminated. Signed by Chief Judge Jeffrey L. Viken on 1/27/14. (SB) (Entered: 01/27/2014)
68 NOTICE by Rochelle Walking Eagle of Dismissal of State Court Proceedings. (Attachments: # 1 Exhibit Order of Dismissal)(Hanna, Dana) (Entered: 01/27/2014)
69 ORDER denying 33 Motion to Dismiss; denying 36 and 37 Motion to Dismiss; denying 39 Motion to Dismiss. Signed by Chief Judge Jeffrey L. Viken on 1/28/14. (SB) (Entered: 01/28/2014)
70 ORDER granting 24 Motion for Class Certification. Signed by Chief Judge Jeffrey L. Viken on 1/28/14. (SB) (Entered: 01/28/2014)
71 ORDER granting 6 Motion to Expedite Discovery. Signed by Chief Judge Jeffrey L. Viken on 1/28/14. (SB) (Entered: 01/28/2014)
72 ORDER for Form 52 Report and Scheduling Information. Signed by Chief Judge Jeffrey L. Viken on 1/28/14. (SB) (Entered: 01/28/2014)
73 NOTICE of Appearance by Steven R. Blair on behalf of Jeff Davis. (Blair, Steven) (Entered: 02/06/2014)

02/11/2014 02/11/2014 02/11/2014 02/18/2014 02/21/2014 02/27/2014 02/28/2014 02/28/2014 02/28/2014
03/07/2014 03/12/2014 03/17/2014 03/17/2014 03/24/2014

74 ANSWER to 1 Complaint,, by Jeff Davis. (Oviatt, Nathan) (Entered: 02/11/2014)
75 ANSWER to 1 Complaint,, by Kim Malsam-Rysdon, Luann Van Hunnik. (Morris, Robert) (Entered: 02/11/2014)
76 ANSWER to 1 Complaint,, by Mark Vargo. (Palmer, J.) (Entered: 02/11/2014)
77 STIPULATION re 71 Order on Motion to Expedite by Jeff Davis. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Oviatt, Nathan) (Entered: 02/18/2014)
78 PROTECTIVE ORDER. Signed by Chief Judge Jeffrey L. Viken on 2/21/14. (SB) (Entered: 02/21/2014)
79 MOTION to Substitute Party by Kim Malsam-Rysdon, Luann Van Hunnik. (Morris, Robert) (Entered: 02/27/2014)
80 AMENDED ANSWER to 1 Complaint,, by Jeff Davis. (Oviatt, Nathan) (Entered: 02/28/2014)
81 AMENDED ANSWER to 1 Complaint,, by Kim Malsam-Rysdon, Luann Van Hunnik. (Morris, Robert) (Entered: 02/28/2014)
82 ORDER granting 79 Motion to Substitute Party. Kim Malsam-Rysdon (in her official capacity) terminated. Lynne A. Valenti shall be substituted as a party defendant in place of Kim Malsam-Rysdon. Signed by Chief Judge Jeffrey L. Viken on 2/28/14. (SB) (Entered: 02/28/2014)
83 FORM 52 REPORT of Parties Planning Meeting re 72 Order for Form 52 (Joint). (Oviatt, Nathan) (Entered: 03/07/2014)
84 SCHEDULING ORDER: Discovery due by 10/10/2014. Motions due by 11/24/2014. Signed by Chief Judge Jeffrey L. Viken on 3/12/14. (SB) (Entered: 03/12/2014)
85 MOTION to Compel by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. (Pevar, Stephen) (Entered: 03/17/2014)
86 ORDER. Signed by Chief Judge Jeffrey L. Viken on 3/17/2014. (KKD) (Entered: 03/17/2014)
87 REDACTED DOCUMENT by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young..

03/28/2014
03/28/2014 04/04/2014 04/14/2014
04/15/2014 04/22/2014 04/23/2014 05/01/2014 06/13/2014 06/16/2014 06/18/2014

(Attachments: # 1 Exhibits 1,2,5 and 7 of 1 Complaint)(Pevar, Stephen) Modified docket text on 3/25/2014 (SAT). (Entered: 03/24/2014)
88 RESPONSE to Motion re 85 MOTION to Compel filed by Jeff Davis. (Attachments: # 1 Affidavit in Support of Defendant Davis' Response to Plaintiffs' Motion to Compel, # 2 Exhibit A to Affidavit in Support, # 3 Exhibit B to Affidavit in Support, # 4 Exhibit C to Affidavit in Support)(Oviatt, Nathan) (Entered: 03/28/2014)
89 RESPONSE to Motion re 85 MOTION to Compel filed by Judge Eklund, Judge Mandel, Judge Pfleifle, Judge Thorstensen, Judge Trimble. (SKK) (Entered: 03/31/2014)
90 REPLY to Motion Response re 85 MOTION to Compel filed by All Plaintiffs. (Attachments: # 1 Affidavit)(Pevar, Stephen) (Entered: 04/04/2014)
91 OBJECTION by Interested Parties Judge Eklund, Judge Mandel, Judge Pfleifle, Judge Trimble to Plaintiff's Rule 45 Subpoena. (Attachments: # 1 Exhibit Subpoena to Non-Party Judges)(Anderson, Robert) (Entered: 04/14/2014)
92 RESPONSE to 91 Objection filed by All Plaintiffs. (Attachments: # 1 Exhibit)(Pevar, Stephen) (Entered: 04/15/2014)
93 ORDER. Signed by Chief Judge Jeffrey L. Viken on 4/22/14. (SB) (Entered: 04/22/2014)
94 RESPONSE to 93 Order filed by All Plaintiffs. (Attachments: # 1 Exhibit Sealed Attachment)(Hanna, Dana) (Attachment 1 replaced on 4/23/2014) (SLT). (Entered: 04/23/2014)
95 ORDER granting 85 Motion to Compel. Signed by Chief Judge Jeffrey L. Viken on 05/01/2014. (KLK) (Additional attachment(s) added on 5/1/2014: # 1 Sealed Exhibit 1) (KLK). (Entered: 05/01/2014)
96 Joint MOTION to Extend Deadlines by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. (Pevar, Stephen) (Entered: 06/13/2014)
97 ORDER granting 96 Motion to Suspend Deadlines. Signed by Chief Judge Jeffrey L. Viken on 6/16/14. (SB) (Entered: 06/16/2014)
98 MOTION to Compel Responses from Defendant Davis by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. (Attachments: # 1 Exhibit 1 - Answers and Responses to Plaintiffs' First Set of Interrogatories and Second Set of

Requests for Production, # 2 Exhibit 2 - Amended Answers and Responses to Plaintiffs' First Set of Interrogatories and Second Set of Requests for Production, # 3 Exhibit 3 - First Supplemental Responses to Plaintiffs' Second Set of Requests for Production)(Pevar, Stephen) Modified by adding description to Exhibits on 6/19/2014 (DLC). (Entered: 06/18/2014)

07/03/2014 99 RESPONSE to 98 Motion to Compel,, filed by Jeff Davis. (Oviatt, Nathan) (Entered: 07/03/2014)

07/07/2014

100 REPLY to Motion Response re 98 MOTION to Compel Responses from Defendant Davis filed by All Plaintiffs. (Pevar, Stephen) (Entered: 07/07/2014)

07/07/2014

101 MOTION to Seal by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. (Pevar, Stephen) (Additional attachment(s) added on 7/7/2014: # 1 Sealed Attachment 1, # 2 Sealed Attachment 2, # 3 Sealed Attachment 3, # 4 Sealed Attachment 4) (SLT). Modified docket text on 7/8/2014 (SAT). (Entered: 07/07/2014)

07/10/2014

102 MOTION for Leave to File Excess Pages by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. (Hanna, Dana) (Entered: 07/10/2014)

07/10/2014

103 MOTION to Remove Plaintiff by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. (Hanna, Dana) (Entered: 07/10/2014)

07/11/2014

104 ORDER granting 102 Motion for Leave to File Excess Pages. Signed by Chief Judge Jeffrey L. Viken on 7/11/2014. (KKD) (Entered: 07/11/2014)

07/11/2014

105 ORDER granting 103 Motion to Remove Plaintiff Rochelle Walking Eagle. Signed by Chief Judge Jeffrey L. Viken on 7/11/2014. (KKD) (Entered: 07/11/2014)

07/11/2014

106 (FILED IN ERROR) First MOTION for Summary Judgment by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Attachments: # 1 Affidavit Declaration of Beauchamp, # 2 Exhibit Davis RFA Answers, # 3 Exhibit Davis Interrogatory Responses, # 4 Exhibit Vargo Interrogatory Responses, # 5 Exhibit DSS Interrogatory Responses)(Pevar, Stephen) Modified on 7/14/2014 (DJP). (Entered: 07/11/2014)

07/11/2014 107 STATEMENT OF MATERIAL FACTS re 110 Motion for Summary Judgment, by Plaintiffs Lisa Young, Oglala Sioux Tribe, Madonna

Pappan, Rosebud Sioux Tribe filed by Lisa Young, Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe. (Pevar, Stephen) Modified on 7/15/2014 (TAL). Modified link on 7/15/2014 (SAT). (Entered: 07/11/2014)

07/11/2014

108 Second MOTION for Partial Summary Judgment by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) (Entered: 07/11/2014)

07/11/2014

109 STATEMENT OF MATERIAL FACTS re 108 Motion for Partial Summary Judgment by Plaintiffs Lisa Young, Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe filed by Lisa Young, Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe. (Pevar, Stephen) (Entered: 07/11/2014)

07/14/2014

NOTICE of Filing Error: 106 Motion for Summary Judgment, was filed in error and should be disregarded. (Hanna, Dana) (Entered: 07/14/2014)

07/14/2014

110 First MOTION for Partial Summary Judgment by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) (Entered: 07/14/2014)

07/14/2014

111 AFFIDAVIT in Support re 110 First MOTION for Partial Summary Judgment filed by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Attachments: # 1 Exhibit (Place Holder) Exhibit 1 Transcripts, # 2 Exhibit (Place Holder) Exhibit 2 Temp Custody Orders, # 3 Exhibit Exhibit 3 Davis RFAs, # 4 Exhibit Exhibit 4 Davis Answers to Interrogs, # 5 Exhibit Exhibit 5 Vargo Interrogs, # 6 Exhibit Exhibit 6 DSS Interrogs, # 7 Exhibit (Place Holder) Exhibit 7 ICWA Affidavits, # 8 Exhibit (Place Holder) Exhibit 8 PTCs)(Pevar, Stephen) (Attachment 1 replaced on 7/15/2014) (TAL). (Attachment 2 replaced on 7/15/2014) (TAL). (Attachment 7 replaced on 7/15/2014) (TAL). (Attachment 8 replaced on 7/15/2014) (TAL). (Entered: 07/14/2014)

07/21/2014 112 ORDER granting 101 Motion to Seal Document. Signed by Chief Judge Jeffrey L. Viken on 7/21/14. (SB) (Entered: 07/21/2014)

07/21/2014

113 MOTION to Unseal Document by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) Modified by sealing documents per the Order 152 on 4/2/2015 (DLC). Modified by restricting to case participants on 4/16/2015 per the Order 160 (DLC). Modified on 4/13/2016 to remove restrictions per 238 (DJP). (Entered: 07/21/2014)

07/21/2014

114 MOTION for sanctions by All Plaintiffs. (Attachments: # 1 Affidavit of Dana Hanna, # 2 Exhibit 6 - Memorandum Decision, # 3 Exhibit 6A Memorandum by Nathan Oviatt)(SAT) Modified by restricting to case participants on 4/16/2015 per the Order 160 (DLC). Modified on 4/13/2016 to remove restrictions per 238 (DJP). (Entered: 07/22/2014)

07/22/2014

115 MOTION to Extend re 110 First MOTION for Partial Summary Judgment , 108 Second MOTION for Partial Summary Judgment by Lynne A. Valenti, Luann Van Hunnik. (Morris, Robert) (Entered: 07/22/2014)

07/25/2014

116 RESPONSE to Motion re 113 MOTION to Unseal Document filed by Jeff Davis. (Blair, Steven) Modified by sealing document per the Order 152 on 4/2/2015 (DLC). Modified by restricting to case participants on 4/16/2015 per the Order 160 (DLC). Modified on 4/13/2016 to remove restrictions per 238 (DJP). (Entered: 07/25/2014)

07/25/2014

117 MOTION to Seal Documents by Jeff Davis. (Attachments: # 1 Response, # 2 Affidavit, # 3 Affidavit)(KKD) Modified by sealing document per the Order 152 on 4/2/2015 (DLC). Modified by restricting to case participants on 4/16/2015 per the Order 160 (DLC). Modified on 4/13/2016 to remove restrictions per 238 (DJP). (Entered: 07/25/2014)

07/28/2014

118 REDACTED DOCUMENT by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. Redacted version of previously filed document 111 Affidavit in Support of Motion,,,. (Attachments: # 1 Exhibit Exhibit 1 Transcripts, # 2 Exhibit Exhibit 2 Temp Custody Orders, # 3 Exhibit Exhibit 7 ICWA Affidavits, # 4 Exhibit Exhibit 8 PTCs)(Hanna, Dana) (Entered: 07/28/2014)

07/30/2014

119 RESPONSE to 117 Motion to Seal Document, 113 Motion to Unseal Document (Plaintiffs' Response to Judge Davis's Motion to Seal, and Plaintiffs' Reply re: Plaintiffs' Motion to Unseal) filed by All Plaintiffs. (Pevar, Stephen) Modified by sealing document per the Order 152 on 4/2/2015 (DLC). Modified by restricting to case participants on 4/16/2015 per the Order 160 (DLC). Modified on 4/13/2016 to remove restrictions per 238 (DJP). (Entered: 07/30/2014)

08/04/2014

120 ORDER granting 115 Motion to Extend. Defendants shall file their response by August 29, 2014. Signed by Chief Judge Jeffrey L. Viken on 8/4/2014. (KKD) (Entered: 08/04/2014)

08/11/2014

121 Reply to Motion Response re: 114 MOTION for sanctions (Attachments: # 1 Exhibit A - Declaration of Dana Hanna)(KKD) Modified by restricting to case participants on 4/16/2015 per the

Order 160 (DLC). Modified on 4/13/2016 to remove restrictions per 238 (DJP). (Entered: 08/11/2014)

08/14/2014

122 MOTION for Leave to Motion for Leave to File a Brief as Amicus Curiae by United States. (Attachments: # 1 Exhibit Exhibit 1 - Amicus Brief, # 2 Memo in Support of Motion, # 3 Text of Proposed Order Proposed Order)(Deerinwater, Verlin) (Entered: 08/14/2014)

08/15/2014

123 ORDER granting 122 Motion for Leave to file a brief as amicus curiae. Signed by Chief Judge Jeffrey L. Viken on 8/15/14. (SB) (Entered: 08/15/2014)

08/23/2014

124 Second MOTION to Extend re 110 First MOTION for Partial Summary Judgment , 108 Second MOTION for Partial Summary Judgment by Lynne A. Valenti, Luann Van Hunnik. (Morris, Robert) (Entered: 08/23/2014)

08/26/2014 125 ORDER granting 124 Motion to Extend. Signed by Chief Judge Jeffrey L. Viken on 8/26/14. (SB) (Entered: 08/26/2014)

09/03/2014 126 MOTION for Leave to File Excess Pages for Response Briefs by Lynne A. Valenti, Luann Van Hunnik. (Morris, Robert) (Entered: 09/03/2014)

09/04/2014 127 ORDER granting 126 Motion for Leave to File Excess Pages. Signed by Chief Judge Jeffrey L. Viken on 9/4/14. (SB) (Entered: 09/04/2014)

09/05/2014

128 RESPONSE to Motion re 110 First MOTION for Partial Summary Judgment filed by Jeff Davis, Lynne A. Valenti, Luann Van Hunnik, Mark Vargo. (Morris, Robert) (Entered: 09/05/2014)

09/05/2014

129 RESPONSE to Motion re 108 Second MOTION for Partial Summary Judgment filed by Jeff Davis, Lynne A. Valenti, Luann Van Hunnik, Mark Vargo. (Morris, Robert) (Entered: 09/05/2014)

09/05/2014

130 RESPONSE to 109 Statement of Material Facts, filed by Jeff Davis, Lynne A. Valenti, Luann Van Hunnik, Mark Vargo. (Morris, Robert) (Entered: 09/05/2014)

09/05/2014

131 RESPONSE to 109 Statement of Material Facts, filed by Jeff Davis, Lynne A. Valenti, Luann Van Hunnik, Mark Vargo. (Morris, Robert) (Entered: 09/05/2014)

09/05/2014

132 AFFIDAVIT re 128 Response to Motion, 130 Response, 129 Response to Motion, 131 Response . (Attachments: # 1 Affidavit Defendants' Exhibit 1, # 2 Exhibit Placeholder - Defendants' Exhibit 2, # 3 Exhibit Placeholder - Defendants' Exhibit 3, # 4 Exhibit Placeholder Defendants' Exhibit 4, # 5 Exhibit Placeholder - Defendants' Exhibit 5,

# 6 Exhibit Placeholder - Defendants' Exhibit 6, # 7 Exhibit Placeholder - Defendants' Exhibit 7, # 8 Exhibit Placeholder - Defendants' Exhibit 8, # 9 Exhibit Placeholder - Defendants' Exhibit 9, # 10 Exhibit Defendants' Exhibit 10, # 11 Exhibit Placeholder - Defendants' Exhibit 11, # 12 Exhibit Placeholder - Defendants' Exhibit 12, # 13 Exhibit Placeholder - Defendants' Exhibit 13, # 14 Exhibit Defendants' Exhibit 14, # 15 Exhibit Defendants' Exhibit 15, # 16 Exhibit Defendants' Exhibit 16, # 17 Exhibit Defendants' Exhibit 17, # 18 Exhibit Defendants' Exhibit 18, # 19 Exhibit Defendants' Exhibit 19, # 20 Exhibit Defendants' Exhibit 20, # 21 Exhibit Defendants' Exhibit 21, # 22 Exhibit Defendants' Exhibit 22, # 23 Exhibit Defendants' Exhibit 23, # 24 Exhibit Defendants' Exhibit 24, # 25 Exhibit Defendants' Exhibit 25, # 26 Affidavit Defendant's Exhibit 26, # 27 Exhibit Placeholder - Defendants' Exhibit 27, # 28 Exhibit Defendants' Exhibit 28, # 29 Exhibit Defendant's Exhibit 29)(Morris, Robert) (Attachment 2 replaced on 9/8/2014) (TAL). (Attachment 3 replaced on 9/8/2014) (TAL). (Attachment 4 replaced on 9/8/2014) (TAL). (Attachment 5 replaced on 9/8/2014) (TAL). (Attachment 6 replaced on 9/8/2014) (TAL). (Attachment 7 replaced on 9/8/2014) (TAL). (Attachment 8 replaced on 9/8/2014) (TAL). (Attachment 9 replaced on 9/8/2014) (TAL). (Attachment 11 replaced on 9/8/2014) (TAL). (Attachment 12 replaced on 9/8/2014) (TAL). (Attachment 13 replaced on 9/8/2014) (TAL). (Attachment 27 replaced on 9/8/2014) (TAL). (Additional attachment(s) added on 9/8/2014: # 30 Exhibit 272, # 31 Exhibit 27-3) (TAL). (Entered: 09/05/2014)

09/16/2014

133 MOTION to Extend Time and For Excess Pages by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Hanna, Dana) (Entered: 09/16/2014)

09/19/2014 134 ORDER granting 133 Motion to Extend. Signed by Chief Judge Jeffrey L. Viken on 9/19/14. (SB) (Entered: 09/19/2014)

09/30/2014

135 REPLY to Motion Response re 110 First MOTION for Partial Summary Judgment filed by All Plaintiffs. (Pevar, Stephen) (Entered: 09/30/2014)

09/30/2014

136 REPLY to Motion Response re 108 Second MOTION for Partial Summary Judgment filed by All Plaintiffs. (Pevar, Stephen) (Entered: 09/30/2014)

02/17/2015

137 MOTION to Stay re 110 First MOTION for Partial Summary Judgment, 107 Statement of Material Facts, by Lynne A. Valenti, Luann Van Hunnik. (Attachments: # 1 Affidavit Robert L. Morris Affidavit, # 2 Sealed Exhibit 1, # 3 Sealed Exhibit 2, # 4 Sealed Exhibit 3, # 5 Sealed Exhibit 4)(Morris, Robert) (Attachment 2 replaced on

2/18/2015) (TAL). (Attachment 3 replaced on 2/18/2015) (TAL). (Attachment 4 replaced on 2/18/2015) (TAL). (Attachment 5 replaced on 2/18/2015) (TAL). Modified text on 2/18/2015 (TAL). (Entered: 02/17/2015)

02/17/2015

138 SCHEDULING ORDER: Motion Hearing set for 3/5/2015 at 01:30 PM in Rapid City Courtroom 1 - Room 301* before Chief Judge Jeffrey L. Viken. Signed by Chief Judge Jeffrey L. Viken on 2/17/15. (SB) (Entered: 02/17/2015)

02/23/2015

139 FILED IN ERROR - RESPONSE to Motion re 137 MOTION to Stay re 110 First MOTION for Partial Summary Judgment , 107 Statement of Material Facts, filed by All Plaintiffs. (Pevar, Stephen) Modified by editing docket text on 2/25/2015 (DLC). (Entered: 02/23/2015)

02/24/2015

140 NOTICE by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young Of New Relevant Authority. (Attachments: # 1 Exhibit - Guidelines for State Courts and Agencies in Indian Child Custody Proceedings )(Pevar, Stephen) Modified by adding descriptive text to the Exhibit on 2/25/2015 (DLC). (Entered: 02/24/2015)

02/25/2015 141 MOTION to Withdraw as Attorney by Jeff Davis. (Giedd, Roxanne) (Entered: 02/25/2015)

02/25/2015

NOTICE of Filing Error: 139 Response to Motion was filed in error and should be disregarded. (Pevar, Stephen) (Entered: 02/25/2015)

02/25/2015

142 RESPONSE to Motion re 137 MOTION to Stay re 110 First MOTION for Partial Summary Judgment , 107 Statement of Material Facts, filed by All Plaintiffs. (Attachments: # 1 Exhibit Email of Nov. 11, 2014 from Pevar to Morris)(Pevar, Stephen) (Entered: 02/25/2015)

02/26/2015

143 ORDER granting 141 Motion to Withdraw as Attorney. Attorney Roxanne Giedd terminated. Signed by Chief Judge Jeffrey L. Viken on 2/26/15. (SB) (Entered: 02/26/2015)

02/26/2015

144 REPLY to 142 Response to Motion, 137 Motion to Stay,, filed by Lynne A. Valenti, Luann Van Hunnik. (Morris, Robert) (Entered: 02/26/2015)

03/03/2015 145 NOTICE of Appearance by Jeffrey R. Connolly on behalf of Mark Vargo. (Connolly, Jeffrey) (Entered: 03/03/2015)

03/05/2015

146 Motion Hearing held on 3/5/2015 re 137 MOTION to Stay re 110 First MOTION for Partial Summary Judgment , 107 Statement of Material Facts, filed by Luann Van Hunnik, Lynne A. Valenti, 98 MOTION to Compel Responses from Defendant Davis filed by Rochelle Walking

Eagle, Lisa Young, Oglala Sioux Tribe, Rosebud Sioux Tribe, Madonna Pappan before Chief Judge Jeffrey L. Viken (Court Reporter Judy Thompson) (SLT) (Entered: 03/05/2015)

03/06/2015

147 ORDER re: discovery on motion for sanctions. Signed by Chief Judge Jeffrey L. Viken on 3/6/15. (SB) Modified by restricting to case participants on 4/16/2015 per the Order 160 (DLC). Modified on 4/13/2016 to remove restrictions per 238 (DJP). (Entered: 03/06/2015)

03/08/2015

148 FILED IN ERROR: SEALED MOTION , MOTION to Alter Judgment by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) Modified on 3/10/2015 to add text and terminate motion (KLK). (Entered: 03/08/2015)

03/10/2015

NOTICE of Filing Error: 148 Sealed Motion, Motion to Alter Judgment was filed in error and should be disregarded. (Pevar, Stephen) (Entered: 03/10/2015)

03/10/2015

149 MOTION to Alter or Amend by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (KLK) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 03/10/2015)

03/30/2015

150 (VACATED - SEE 383 ) ORDER granting 108 Motion for Partial Summary Judgment; granting 110 Motion for Partial Summary Judgment; denying as moot 137 Motion to Stay. Signed by Chief Judge Jeffrey L. Viken on 3/30/15. (SB) Modified on 1/21/2020 (DJP). (Entered: 03/30/2015)

04/01/2015

151 ORDER granting 149 Motion to Alter or Amend. Signed by Chief Judge Jeffrey L. Viken on 4/1/15. (SB) (Main Document 151 replaced on 4/1/2015) (SLT). Modified by restricting to case participants on 4/16/2015 per the Order 160 (DLC). Modified on 4/13/2016 to remove restrictions per 238 (DJP). (Entered: 04/01/2015)

04/01/2015 152 ORDER. Signed by Chief Judge Jeffrey L. Viken on 4/1/15. (SB) (Entered: 04/01/2015)

04/02/2015 153 ORDER denying as moot 98 Motion to Compel. Signed by Chief Judge Jeffrey L. Viken on 4/2/15. (SB) (Entered: 04/02/2015)

04/13/2015

154 MOTION for Expedited Order Regarding Sealed Documents and Supporting Brief by Jeff Davis. (KLK) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 04/13/2015)

04/13/2015

155 AFFIDAVIT of Nathan Oviatt in Support re 154 Motion for expedited order by Jeff Davis (KLK) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 04/13/2015)

04/13/2015 156 First MOTION to Compel by Lynne A. Valenti, Luann Van Hunnik. (Morris, Robert) (Entered: 04/13/2015)

04/13/2015

157 AFFIDAVIT in Support re 156 First MOTION to Compel filed by Lynne A. Valenti, Luann Van Hunnik. (Attachments: # 1 Exhibit Discovery to Plaintiffs, # 2 Exhibit Plaintiffs Objection to Discovery, # 3 Exhibit Proposed Protective Order)(Morris, Robert) (Entered: 04/13/2015)

04/14/2015 158 REPLY to 154 Sealed Motion filed by All Plaintiffs. (Pevar, Stephen) (Entered: 04/14/2015)

04/14/2015 159 MOTION to Compel by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) (Entered: 04/14/2015)

04/15/2015

160 ORDER granting 154 Motion for expedited Order. Signed by Chief Judge Jeffrey L. Viken on 4/15/15. (SB) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 04/15/2015)

04/16/2015 161 NOTICE of Appearance by Gerald D. Johnson on behalf of Nathan R. Oviatt. (Johnson, Gerald) (Entered: 04/16/2015)

04/21/2015 162 NOTICE of Appearance by Paul E. Bachand on behalf of Jacob Quasney. (Bachand, Paul) (Entered: 04/21/2015)

04/21/2015

163 MOTION to Extend Deadlines by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) (Entered: 04/21/2015)

04/21/2015

164 TEXT ORDER granting 163 Motion to Extend Deadline. Submissions required by 150 shall be filed by 5/4/15. Signed by Chief Judge Jeffrey L. Viken on 4/21/15. (SB) (Entered: 04/21/2015)

04/22/2015

165 MOTION to Access Sealed Documents by Jacob Quasney. (Bachand, Paul) Modified by editing motion relief type and docket text on 4/22/2015 (DLC). (Entered: 04/22/2015)

04/23/2015

166 ORDER granting 165 Motion for Leave to access sealed documents. Signed by Chief Judge Jeffrey L. Viken on 4/23/15. (SB) Modified on 4/23/2015 (SB). (Entered: 04/23/2015)

04/27/2015

167 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay by Lynne A. Valenti, Luann Van Hunnik. (Morris, Robert) (Entered: 04/27/2015)

04/27/2015 168 MEMORANDUM in Support re 167 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment,, Order on

Motion to Stay filed by Lynne A. Valenti, Luann Van Hunnik. (Morris, Robert) (Entered: 04/27/2015)

04/27/2015

169 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay by Mark Vargo. (Palmer, J.) (Entered: 04/27/2015)

04/27/2015

170 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay by Jeff Davis. (Oviatt, Nathan) (Entered: 04/27/2015)

04/27/2015

171 FILED IN ERROR - MEMORANDUM in Support re 169 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay filed by Mark Vargo. (Palmer, J.) Modified by editing docket text on 4/29/2015 (DLC). (Entered: 04/27/2015)

04/27/2015

172 MEMORANDUM in Support re 170 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay filed by Jeff Davis. (Oviatt, Nathan) (Entered: 04/27/2015)

04/27/2015

173 JOINDER by Defendants Lynne A. Valenti, Luann Van Hunnik re 171 Memorandum in Support of Motion, 172 Memorandum in Support of Motion (Morris, Robert) (Entered: 04/27/2015)

04/28/2015

NOTICE of Filing Error: 171 Memorandum in Support of Motion was filed in error and should be disregarded. (Palmer, J.) (Entered: 04/28/2015)

04/28/2015

174 MEMORANDUM in Support re 169 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay filed by Mark Vargo. (Palmer, J.) (Entered: 04/28/2015)

04/28/2015 175 ORDER. Signed by Chief Judge Jeffrey L. Viken on 4/28/15. (SB) (Entered: 04/28/2015)

04/28/2015

176 JOINDER by Defendant Jeff Davis re 171 Filed in Error Memorandum in Support of Motion, 167 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment, Order on Motion to Stay , 169 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment, Order on Motion to Stay , 168 Memorandum in Support of Motion (Oviatt, Nathan) Modified by adding link to 174 Memorandum in Support of Motion (replaced Doc. 171) on 4/29/2015 (DLC). (Entered: 04/28/2015)

04/29/2015

177 JOINDER by Defendant Mark Vargo re 168 Memorandum in Support of Motion, 172 Memorandum in Support of Motion (Palmer, J.) (Entered: 04/29/2015)

04/29/2015

178 MEMORANDUM in Opposition re 156 First MOTION to Compel filed by All Plaintiffs. (Attachments: # 1 Affidavit Affidavit of Judge)(Hanna, Dana) (Entered: 04/29/2015)

05/04/2015 179 MOTION FOR PROTECTIVE ORDER by Jeff Davis. (SKK) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/04/2015)

05/04/2015

180 Affidavit of Steven Blair re: 179 Motion for Protective Order by Jeff Davis. (Attachments: # 1 Attachment A: Plaintiff's Rule 34 Request for Production)(SKK) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/04/2015)

05/04/2015

181 MOTION for stay and extension of discovery deadline by Jeff Davis. (SKK) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/04/2015)

05/04/2015

182 AFFIDAVIT of Steven R. Blain in Support of 181 Motion for stay and extension of discovery deadline by Jeff Davis (Attachments: # 1 Attachment A: Plaintiff's Rule 34 Request for Production)(SKK) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/04/2015)

05/05/2015 183 RESPONSE to Motion re 159 MOTION to Compel filed by Lynne A. Valenti, Luann Van Hunnik. (Morris, Robert) (Entered: 05/05/2015)

05/05/2015

184 AFFIDAVIT in Opposition re 159 MOTION to Compel filed by Lynne A. Valenti, Luann Van Hunnik. (Attachments: # 1 Exhibit Proposed Protective Order, # 2 Exhibit Plaintiffs' Proposed PO revised language, # 3 Exhibit Child Protection Face Sheets, # 4 Exhibit CAPTA Information, # 5 Exhibit 45 CFR 1340.20, # 6 Exhibit 45 CFR 1340.14, # 7 Exhibit Child Welfare Publication - Disclosure of confidential info, # 8 Exhibit DSS Dfndts' response to Plts' 2nd Set Discovery, # 9 Exhibit filed under seal, # 10 Exhibit Affadavit of Virgenea Wiesler)(Morris, Robert) (Attachment 9 replaced on 5/6/2015) (SLT). Modified on 5/6/2015 (SLT). (Entered: 05/05/2015)

05/07/2015

185 Motion for Protective Order by Nathan R. Oviatt. (Attachments: # 1 Exhibit A - Plaintiffs' Notice of Depositions and Subpoena Duces Tecum)(KKD) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/07/2015)

05/07/2015

186 Nathan Oviatt's Certification Regarding Efforts to resolve Discovery Dispute (KKD) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/07/2015)

05/11/2015

187 RESPONSE to Motion re 170 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay , 167 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay , 169 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay filed by All Plaintiffs. (Pevar, Stephen) (Entered: 05/11/2015)

05/13/2015

188 REPLY to Motion Response re 156 First MOTION to Compel filed by Lynne A. Valenti, Luann Van Hunnik. (Morris, Robert) (Entered: 05/13/2015)

05/13/2015

189 AFFIDAVIT of Robert L. Morris re 188 Reply to Motion Response (Attachments: # 1 Exhibit Excerpts of Oglala Sioux Tribe Family and Child Code)(Morris, Robert) (Entered: 05/13/2015)

05/14/2015

190 REPLY to Motion Response re 159 MOTION to Compel filed by All Plaintiffs. (Attachments: # 1 Exhibit Order in A11-948, # 2 Exhibit Order in A12-245, # 3 Exhibit IFA in 11-645)(Pevar, Stephen) (Attachment 1 replaced on 5/14/2015) (TAL). (Attachment 2 replaced on 5/14/2015) (TAL). (Attachment 3 replaced on 5/14/2015) (TAL). Access to mail document restricted to case participants pursuant to the Protective Order on 5/14/2015. Mr. Pevar to file redacted version. (SST). (Entered: 05/14/2015)

05/14/2015

191 REDACTED DOCUMENT by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. Redacted version of previously filed document 190 Reply to Motion Response,, (Pevar, Stephen) (Additional attachment added on 5/14/2015: # 1 Exhibit Order in A11948, # 2 Exhibit Order in A12-245, # 3 Exhibit IFA in 11-645) (TAL). Modified on 5/14/2015 to add text (TAL). (Main Document 191 replaced on 5/15/2015) (TAL). (Entered: 05/14/2015)

05/15/2015 192 MOTION for Protective Order by Jacob Quasney. (KKD) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/15/2015)

05/15/2015 193 Quasney's Joinder in Arguments of Other Defendants (KKD) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/15/2015)

05/19/2015

194 Plaintiffs' Response re: 179 Defendant Davis' Motion for Protective Order (SLT) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/19/2015)

05/19/2015

195 MOTION for Protective Order by Judge Thorstensen. (Attachments: # 1 Exhibit A - Plaintiffs' Notice of Deposition and Subpoena Duces Tecum )(SAT) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/19/2015)

05/19/2015

196 Affidavit of Mary Thorstenson re: 195 MOTION for Protective Order (Attachments: # 1 Exhibit A - Plaintiffs' Notice of Depositions and Subpoena Duces Tecum)(SAT) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/19/2015)

05/19/2015

197 REPLY to Motion Response re 169 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay filed by Mark Vargo. (Palmer, J.) (Entered: 05/19/2015)

05/19/2015

198 REPLY to Motion Response re 167 MOTION for Reconsideration re 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay filed by Lynne A. Valenti, Luann Van Hunnik. (Morris, Robert) (Entered: 05/19/2015)

05/19/2015 199 REPLY to 187 Response to Motion, filed by Jeff Davis. (Oviatt, Nathan) (Entered: 05/19/2015)

05/19/2015

200 JOINDER by Defendants Lynne A. Valenti, Luann Van Hunnik re 197 Reply to Motion Response, 199 Reply (Morris, Robert) (Entered: 05/19/2015)

05/20/2015

201 ORDER granting in part and denying in part 181 Motion for Stay and Extension of Discovery Deadline. Signed by Chief Judge Jeffrey L. Viken on 5/20/15. (SB) Modified on 5/20/2015 (SB). Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/20/2015)

05/26/2015 202 Plaintiffs' Response re: 185 Oviatt's Motion for Protective Order (TAL) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/26/2015)

05/26/2015

203 Judge Davis' Reply to Motion Response re: 179 Motion for Protective Order (SKK) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/26/2015)

05/26/2015

204 Plaintiffs' Response re: 195 Judge Thorstenson's Motion for Protective Order , 192 Quasney's Motion for Protective Order (KLK) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/26/2015)

05/26/2015 205 MOTION to Substitute Party Defendant by Jeff Davis. (Oviatt, Nathan) (Entered: 05/26/2015)

05/29/2015

206 Quasney's Reply to 204 Plaintiffs' Response re: 195 Judge Thorstenson's Motion for Protective Order and 192 Motion for Protective Order by Jacob Quasney (SKK) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 05/29/2015)

05/29/2015

207 Nathan Oviatt's Reply Brief in Support of 185 MOTION for protective order (SLT) Modified on 4/13/2016 to unseal per 238 (Entered: 05/29/2015)

06/01/2015

208 Reply of Judge Thorstenson re: 204 Plaintiffs' Response to 195 Motion for Protective Order (SKK) Modified on 4/13/2016 to unseal per 238 (DJP). (Entered: 06/01/2015)

10/18/2015

209 MOTION to Quash , Motion to Stay Discovery, and Motion for Protective Order by Kim Malsam-Rysdon, Luann Van Hunnik. (Attachments: # 1 Exhibit Notice of Deposition)(Morris, Robert). Added MOTION to Stay, MOTION for Protective Order on 10/27/2015 (DLC). (Entered: 10/18/2015)

10/23/2015 210 RESPONSE to 209 Motion to Quash filed by All Plaintiffs. (Pevar, Stephen) (Entered: 10/23/2015)

10/26/2015

211 REPLY to Motion Response re 209 MOTION to Quash , Motion to Stay Discovery, and Motion for Protective Order filed by Lynne A. Valenti, Luann Van Hunnik. (Morris, Robert) (Entered: 10/26/2015)

10/26/2015 212 MOTION to Expedite Ruling by Lynne A. Valenti, Luann Van Hunnik. (Morris, Robert) (Entered: 10/26/2015)

10/27/2015 213 RESPONSE to 212 Motion to Expedite filed by All Plaintiffs. (Pevar, Stephen) (Entered: 10/27/2015)

10/30/2015

214 ORDER granting in part and denying in part 209 Motion to Quash; denying as moot 212 Motion to Expedite; granting in part and denying in part 209 Motion to Stay; denying 209 Motion for Protective Order. Signed by Chief Judge Jeffrey L. Viken on 10/30/15. (SB) (Entered: 10/30/2015)

01/28/2016

215 ORDER granting in part and denying in part 159 Motion to Compel; granting in part and denying in part [183 at p. 5] motion for a protective order; vacating 214 stay of discovery. Signed by Chief Judge Jeffrey L. Viken on 1/28/16. (SB) (Entered: 01/28/2016)

01/28/2016

216 PROTECTIVE ORDER AS TO SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES RECORDS. Signed by Chief Judge Jeffrey L. Viken on 1/28/16. (SB) (Entered: 01/28/2016)

02/19/2016

217 (VACATED - SEE 383 ) ORDER granting in part and denying in part 167 Motion for Reconsideration; denying 169 Motion for Reconsideration; denying 170 Motion for Reconsideration; and amending 150 Order Granting Partial Summary Judgment. Signed by

Chief Judge Jeffrey L. Viken on 2/19/16. (SB) Modified on 1/21/2020 (DJP). Modified on 1/21/2020 (DJP). (Entered: 02/19/2016)

02/19/2016 218 ORDER denying 156 Motion to Compel. Signed by Chief Judge Jeffrey L. Viken on 2/19/16. (SB) (Entered: 02/19/2016)

02/22/2016

219 (FILED IN ERROR) REDACTED DOCUMENT (Part 1) by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) Modified on 2/23/2016 (SRB). (Entered: 02/22/2016)

02/23/2016

NOTICE of Filing Error: 219 Redacted Document was filed in error and should be disregarded. (Pevar, Stephen) (Entered: 02/23/2016)

02/23/2016

220 REDACTED DOCUMENT (Part 1) by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) (Main Document 220 replaced on 2/23/2016) (SRB). (Additional attachment(s) added on 2/23/2016: # 1 Exhibit 1 - October 20, 2011 Hearing Transcript, # 2 Exhibit 2 - Temporary Custody Order, # 3 Exhibit 5 - July 9, 2012 48 Hour Hearing Transcript, # 4 Exhibit 7 Temporary Custody Order, # 5 October 14, 2010 Hearing Transcript, # 6 July 9, 2012 Hearing Transcript) (SRB). (Entered: 02/23/2016)

02/25/2016 221 MOTION to Substitute Party by Lynne A. Valenti, Luann Van Hunnik. (Morris, Robert) (Entered: 02/25/2016)

02/26/2016 222 MOTION to Substitute Party RENEWED by Jeff Davis. (Oviatt, Nathan) (Entered: 02/26/2016)

02/26/2016 223 NOTICE of Appearance by Terence R. Quinn on behalf of Jeff Davis. (Quinn, Terence) (Entered: 02/26/2016)

02/26/2016 224 NOTICE of Appearance by G. Verne Goodsell on behalf of Jeff Davis. (Goodsell, G.) (Entered: 02/26/2016)

03/07/2016

225 ORDER granting in part and denying in part 179 , granting in part and denying in part 185 , granting in part and denying in part 192 , granting in part and denying in part 195 , denying as premature 113 and granting 117 . Signed by Chief Judge Jeffrey L. Viken on 3/7/16. (SB) Modified on 4/13/2016 to unseal per 238 (Entered: 03/07/2016)

03/07/2016

226 ORDER granting 205 and 222 Motion to Substitute Party and granting 221 Motion to Substitute Party. Luann Van Hunnik and Honorable Jeff Davis (in their official capacities) terminated. Signed by Chief Judge Jeffrey L. Viken on 3/7/16. (SB) (Entered: 03/07/2016)

03/11/2016 227 NOTICE of Appearance by Catherine M. Sabers on behalf of Craig Pfeifle. (Sabers, Catherine) (Entered: 03/11/2016)

03/18/2016 228 MOTION to Withdraw as Attorney (G. Verne Goodsell) by Judge Pfleifle. (Goodsell, G.) (Entered: 03/18/2016)

03/18/2016 229 MOTION to Withdraw as Attorney (Terence R. Quinn) by Judge Pfleifle. (Quinn, Terence) (Entered: 03/18/2016)

03/18/2016 230 MOTION to Withdraw as Attorney (Nathan R. Oviatt) by Judge Pfleifle. (Oviatt, Nathan) (Entered: 03/18/2016)

03/25/2016

231 MOTION to Stay re 225 Order by Craig Pfeifle. (Sabers, Catherine) (Main Document 231 replaced on 3/25/2016) (SST). Modified on 4/13/2016 to unseal per 238 (Entered: 03/25/2016)

03/28/2016

232 FILED IN ERROR - Sealed JOINDER by Interested Party Judge Thorstensen re 231 MOTION to Stay re 225 Sealed Order, (SKK) Modified on 3/28/2016 (SKK). (Entered: 03/28/2016)

03/28/2016

NOTICE of Filing Error: 232 Sealed Joinder was filed in error and should be disregarded. (SKK) (Entered: 03/28/2016)

03/28/2016

233 RESPONSE to Motion re 231 MOTION to Stay re 225 Order, filed by All Plaintiffs. (SLT) Modified on 4/13/2016 to unseal per 238 (Entered: 03/28/2016)

03/28/2016

234 JOINDER by Interested Party Judge Thorstensen re 231 MOTION to Stay re 225 Order. (SAT) Modified on 4/13/2016 to unseal per 238 (Entered: 03/28/2016)

03/29/2016

235 ORDER granting 228 , 229 and 230 Motions to Withdraw as Attorney. Attorneys G. Verne Goodsell, Terrence R. Quinn and Nathan R. Oviatt terminated as attorneys for the Honorable Craig Pfeifle. Signed by Chief Judge Jeffrey L. Viken on 3/29/16. (SB) (Entered: 03/29/2016)

03/30/2016

236 TEXT ORDER denying as moot 114 Sealed Motion; denying as moot 231 Motion to Stay. Dockets 114, 231 & 234 are dismissed as moot because the issues have been settled by the parties. No further production of documents or depositions are required under the 3/7/16 Order [Docket 225] and no further briefing on the issues is required by the court. Signed by Chief Judge Jeffrey L. Viken on 3/30/16. (SB) (Entered: 03/30/2016)

04/01/2016 237 Stipulation to Dismiss 114 Plaintiff's Motion for Sanctions. (SKK) Modified on 4/13/2016 to unseal per 238 . (Entered: 04/01/2016)

04/13/2016

238 ORDER accepting 237 Stipulation and Granting Relief Requested therein. Signed by Chief Judge Jeffrey L. Viken on 4/13/2016. (SRB) (Entered: 04/13/2016)

04/20/2016

239 BRIEF by Plaintiffs Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young PLAINTIFFS' BRIEF ON REMEDIES (Attachments: # 1 Exhibit 1R - Transcript in A15-293, # 2 Exhibit 2R - Judge Mandel email and Article, # 3 Exhibit 3R - Transcript in A16-278 (April 4), # 4 Exhibit 4R - Petition in A16227, # 5 Exhibit 5R - Petition in A16-278, # 6 Exhibit 6R - Transcript in April 18, 2016 hearing, # 7 Exhibit 7R - Transcript in A16-278 (April 14 hearing)) (Pevar, Stephen) (Attachment 1 replaced on 4/20/2016) (TAL). (Attachment 4 replaced on 4/20/2016) (TAL). (Attachment 5 replaced on 4/20/2016) (TAL). Modified on 4/21/2016 to update exhibit descriptions(SRB). (Attachment 7 replaced on 5/23/2016) (TAL). (Attachment 6 replaced on 5/23/2016) (TAL). (Attachment 3 replaced on 5/23/2016) (TAL). (Attachment 7 replaced on 5/24/2016) (TAL). (Entered: 04/20/2016)

04/24/2016

240 MOTION to Withdraw by Rachel Goodman by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) (Entered: 04/24/2016)

04/26/2016

241 TEXT ORDER granting 240 Motion to Withdraw. Rachel E. Goodman no longer attorney of record. Signed by Chief Judge Jeffrey L. Viken on 4/26/16. (SB) (Entered: 04/26/2016)

04/26/2016

242 TEXT SCHEDULING ORDER: Status Conference on plaintiffs' claim for a permanent injunction set for 5/26/2016 at 01:30 PM in Rapid City Courtroom 1 - Room 301* before Chief Judge Jeffrey L. Viken. Plaintiffs' brief of the legal issues shall be filed on or before 4/22/16; defendants' response shall be filed on or before 5/2/16; and plaintiffs' reply brief shall be filed on or before 5/6/16. Signed by Chief Judge Jeffrey L. Viken on 4/26/16. (SB) (Entered: 04/26/2016)

05/02/2016

243 TEXT SCHEDULING ORDER: Status Conference rescheduled for 5/26/2016 at 09:30 AM in Rapid City Courtroom 1 - Room 301* before Chief Judge Jeffrey L. Viken. Signed by Chief Judge Jeffrey L. Viken on 5/2/16. (SB) (Entered: 05/02/2016)

05/03/2016

244 Motion/Notice of Withdrawal of Attorney by Judge Pfleifle. Attorney Robert B. Anderson terminated. (Anderson, Robert) Modified on 5/6/2016 to change event type to motion (SRB). (Entered: 05/03/2016)

05/10/2016

245 MOTION to Withdraw as Attorney Motion Under LR 83.7 to Withdraw from the Representation of Nathan Oviatt by Nathan R. Oviatt. (Johnson, Gerald) (Entered: 05/10/2016)

05/16/2016

246 TEXT ORDER granting 244 Motion to Withdraw as Attorney. Attorney Robert B. Anderson terminated. Signed by Chief Judge Jeffrey L. Viken on 5/16/16. (SB) (Entered: 05/16/2016)

05/16/2016

247 TEXT ORDER granting 245 Motion to Withdraw as Attorney. Attorney Gerald D. Johnson terminated. Signed by Chief Judge Jeffrey L. Viken on 5/16/16. (SB) (Entered: 05/16/2016)

05/24/2016 248 NOTICE of Appearance by Jeffrey G. Hurd on behalf of Judge Pfleifle. (Hurd, Jeffrey) (Entered: 05/24/2016)

05/26/2016 249 Status Conference held on 5/26/2016. before Chief Judge Jeffrey L. Viken (Court Reporter Judy Thompson) (KLK) (Entered: 05/26/2016)

05/27/2016

250 SCHEDULING ORDER: Evidentiary Hearing set for 8/17/2016 at 09:00 AM in Rapid City Courtroom 1 - Room 301* before Chief Judge Jeffrey L. Viken. Signed by Chief Judge Jeffrey L. Viken on 5/27/16. (SB) (Entered: 05/27/2016)

06/02/2016 251 MOTION to Withdraw as Attorney (Catherine M. Sabers) by Craig Pfeifle. (Sabers, Catherine) (Entered: 06/02/2016)

06/03/2016

252 TEXT ORDER granting 251 Motion to Withdraw as Attorney. Attorney Catherine M. Sabers terminated. Signed by Chief Judge Jeffrey L. Viken on 6/3/16. (SB) (Entered: 06/03/2016)

06/15/2016

253 JOINT MOTION Regarding Public Filings by Lisa Fleming, Lynne A. Valenti (Morris, Robert) Modified on 6/17/2016 to change event type (SRB). (Entered: 06/15/2016)

06/21/2016

254 ORDER granting 253 Motion and Stipulation Regarding Public Filings. Signed by Chief Judge Jeffrey L. Viken on 6/21/16. (SB) (Entered: 06/21/2016)

06/23/2016

255 TRANSCRIPT of Proceedings re 249 Status Conference held on May 26, 2016 before Judge Jeffrey L. Viken. Court Reporter: Judith M. Thompson, Telephone number 605-348-8610. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/14/2016. Redacted Transcript Deadline set for 7/25/2016. Release of Transcript Restriction set for 9/22/2016. (Thompson, Judith) (Entered: 06/23/2016)

06/23/2016

256 NOTICE of Filing of Official Transcript re 249 Status Conference. The Court Reporter shall manually serve a hard copy of this Notice on all non-ECF counsel. (Thompson, Judith) (Entered: 06/23/2016)

06/27/2016

257 RESPONSE to 239 Brief,,, Regarding Request for Appropriate Remedies filed by Mark Vargo. (Connolly, Jeffrey) (Entered: 06/27/2016)

06/27/2016 258 RESPONSE to 239 Brief,,, filed by Judge Pfleifle. (Hurd, Jeffrey) (Entered: 06/27/2016)

06/27/2016

259 DECLARATION of Jeffrey G. Hurd re 258 Response (Attachments: # 1 Exhibit Depo of Roxanne Erickson) (Hurd, Jeffrey) (Entered: 06/27/2016)

06/27/2016 260 RESPONSE to 239 Brief,,, filed by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 06/27/2016)

07/05/2016

261 MOTION for Partial Summary Judgment by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) (Entered: 07/05/2016)

07/05/2016

262 MEMORANDUM in Support re 261 MOTION for Partial Summary Judgment filed by All Plaintiffs. (Pevar, Stephen) (Entered: 07/05/2016)

07/05/2016

263 STATEMENT OF Undisputed MATERIAL FACTS re 261 Motion for Partial Summary Judgment filed by All Plaintiffs. (Pevar, Stephen) (Entered: 07/05/2016)

07/05/2016

264 (FILED IN ERROR) AFFIDAVIT in Support re 261 MOTION for Partial Summary Judgment filed by All Plaintiffs. (Pevar, Stephen) Modified on 7/6/2016 (SRB). (Entered: 07/05/2016)

07/05/2016

NOTICE of Filing Error: 264 Affidavit in Support of Motion was filed in error and should be disregarded. (Pevar, Stephen) (Entered: 07/05/2016)

07/05/2016

265 AFFIDAVIT in Support re 261 MOTION for Partial Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Exhibit Deposition of S.W. (Excerpt), # 2 Exhibit Model ICWA Affidavit, # 3 Exhibit Deposition of Van Hunnik (Excerpt), # 4 Exhibit Deposition of M.A. (Excerpt), # 5 Exhibit Deposition of S.W. (Excerpt), # 6 Exhibit Deposition of Erickson (Excerpt))(Pevar, Stephen) (Entered: 07/05/2016)

07/07/2016

266 MOTION to Extend Deadlines by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) (Entered: 07/07/2016)

07/11/2016

267 ORDER granting 266 Motion to Extend Deadlines. Plaintiff may serve and file a reply brief by 8/2/2016. Signed by Chief Judge Jeffrey L. Viken on 7/11/2016. (SRB) (Entered: 07/11/2016)

07/26/2016 268 MOTION to Strike 261 MOTION for Partial Summary Judgment by Mark Vargo. (Connolly, Jeffrey) (Entered: 07/26/2016)

07/26/2016

269 MEMORANDUM in Support re 268 MOTION to Strike 261 MOTION for Partial Summary Judgment and In the Alternative, Response to Plaintiffs' Motion for Partial Summary Judgment filed by Mark Vargo. (Connolly, Jeffrey) (Entered: 07/26/2016)

07/26/2016

270 RESPONSE to 263 Statement of Material Facts and Vargo's Statement of Disputed Facts filed by Mark Vargo. (Connolly, Jeffrey) (Entered: 07/26/2016)

07/26/2016 271 AFFIDAVIT of Jeffrey R. Connolly . (Attachments: # 1 Exhibit 1 Federal Register adding new subpart to Dept. of Interior's regulations implementing the ICWA) (Connolly, Jeffrey) (Entered: 07/26/2016)

08/02/2016

272 SUPPLEMENT by Plaintiff Oglala Sioux Tribe re 239 Brief,,, Reply Brief on Plaintiffs' Request for Remedies. (Pevar, Stephen) (Entered: 08/02/2016)

08/02/2016

273 Second Declaration of Stephen L. Pevar re 272 Supplement Plaintiffs' Reply Brief. (Attachments: # 1 Exhibit Erickson Deposition (Excerpts)) (Pevar, Stephen) Modified on 8/3/2016 (DJP). (Entered: 08/02/2016)

08/09/2016 274 MOTION to Extend Deadlines by Oglala Sioux Tribe. (Pevar, Stephen) (Entered: 08/09/2016)

08/10/2016

275 TEXT ORDER granting 274 Motion to Extend Deadlines. Plaintiffs shall file their reply to 261 Motion for Partial Summary Judgment and their response to 268 Motion to Strike by 8/30/16. Signed by Chief Judge Jeffrey L. Viken on 8/10/16. (SB) Modified on 8/11/2016 (SB). (Entered: 08/10/2016)

08/11/2016

276 AMENDED TEXT ORDER granting 274 Motion to Extend Deadlines. Plaintiffs shall file their response to 261 Motion for Partial Summary Judgment and 268 Motion to Strike by 8/30/16. Defendant Vargo shall file his reply to 268 Motion to Strike by 9/11/16. Signed by Chief Judge Jeffrey L. Viken on 8/11/16. (SB) (Entered: 08/11/2016)

08/17/2016 277 Evidentiary Hearing held on 8/17/2016 before Chief Judge Jeffrey L. Viken (Court Reporter Judy Thompson) (SLT) (Entered: 08/17/2016)

08/17/2016 278 Exhibit List re: 277 Evidentiary Hearing.(SLT) (Main Document 278 replaced on 8/25/2016) (SLT). (Entered: 08/17/2016)

08/28/2016 279 RESPONSE to Motion re 268 MOTION to Strike 261 MOTION for Partial Summary Judgment , 261 MOTION for Partial Summary

Judgment filed by All Plaintiffs. (Pevar, Stephen) (Entered: 08/28/2016)

09/06/2016

280 STIPULATION Re: Filing of Hearing Exhibits by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young (Pevar, Stephen) (Entered: 09/06/2016)

09/06/2016

281 STIPULATION re 280 Stipulation Hearing Exhibit 1 by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young (Pevar, Stephen) (Entered: 09/06/2016)

09/06/2016

282 STIPULATION re 280 Stipulation Hearing Exhibit 2 by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young (Pevar, Stephen) (Entered: 09/06/2016)

09/06/2016

283 STIPULATION re 280 Stipulation Hearing Exhibit 3 by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young (Pevar, Stephen) (Entered: 09/06/2016)

09/06/2016

284 STIPULATION re 280 Stipulation Hearing Exhibit 4 by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young (Pevar, Stephen) (Entered: 09/06/2016)

09/12/2016

285 REPLY to Motion Response re 268 MOTION to Strike 261 MOTION for Partial Summary Judgment filed by Mark Vargo. (Connolly, Jeffrey) (Entered: 09/12/2016)

09/16/2016

286 TRANSCRIPT of Proceedings re 277 Evidentiary Hearing held on August 17, 2016 before Judge Jeffrey L. Viken. Court Reporter: Judith M. Thompson, Telephone number 605-348-8610. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/7/2016. Redacted Transcript Deadline set for 10/17/2016. Release of Transcript Restriction set for 12/16/2016. (Thompson, Judith) (Entered: 09/16/2016)

09/16/2016

287 NOTICE of Filing of Official Transcript re 277 Evidentiary Hearing. The Court Reporter shall manually serve a hard copy of this Notice on all non-ECF counsel. (Thompson, Judith) (Entered: 09/16/2016)

10/07/2016 288 NOTICE of Change of Address by Stephen L. Pevar (Pevar, Stephen) (Entered: 10/07/2016)

11/04/2016 289 MOTION for Leave to File Excess Pages by Oglala Sioux Tribe. (Pevar, Stephen) (Entered: 11/04/2016)

11/14/2016

290 MOTION for Partial Summary Judgment Re: DSS Inadequate Training and Supervision by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Rochelle Walking Eagle, Lisa Young. (Pevar, Stephen) (Entered: 11/14/2016)

11/14/2016

291 STATEMENT OF Undisputed MATERIAL FACTS re 290 Motion for Partial Summary Judgment filed by All Plaintiffs. (Pevar, Stephen) (Entered: 11/14/2016)

11/14/2016

292 (FILED IN ERROR) MEMORANDUM in Support re 290 MOTION for Partial Summary Judgment Re: DSS Inadequate Training and Supervision filed by All Plaintiffs. (Attachments: # 1 Appendix Deposition Transcripts (Excerpts) (under seal), # 2 Exhibit Exhibits (under seal))(Pevar, Stephen) (Additional attachment(s) added on 11/14/2016: # 3 Additional Exhibits (under seal) (TAL). (Attachment 1 replaced on 11/14/2016) (TAL). (Attachment 1 replaced on 11/14/2016) (TAL). (Attachment 3 replaced on 11/14/2016) (TAL). (Attachment 2 replaced on 11/14/2016) (TAL). Modified on 11/14/2016 to add text (TAL). Modified on 11/15/2016 (TAL). (Entered: 11/14/2016)

11/14/2016

293 TEXT ORDER granting 289 Motion for Leave to File Excess Pages. Signed by Chief Judge Jeffrey L. Viken on 11/14/16. (SB) (Entered: 11/14/2016)

11/14/2016

NOTICE of Filing Error: 292 Memorandum in Support of Motion,, was filed in error and should be disregarded. (Pevar, Stephen) (Entered: 11/14/2016)

11/14/2016

294 MEMORANDUM in Support re 290 MOTION for Partial Summary Judgment Re: DSS Inadequate Training and Supervision (Corrected Memorandum) filed by All Plaintiffs. (Attachments: # 1 Appendix Deposition Transcripts (excerpts) (under seal), # 2 Exhibit Exhibits (under seal), # 3 Exhibit Additional Exhibits (under seal))(Pevar, Stephen) (Attachment 1 replaced on 11/15/2016) (TAL). (Attachment 2 replaced on 11/15/2016) (TAL). (Attachment 3 replaced on 11/15/2016) (TAL). (Entered: 11/14/2016)

11/16/2016

295 MOTION for Partial Summary Judgment Failure to End Placement When the Reason For Placement Ends by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) (Entered: 11/16/2016)

11/16/2016

296 MEMORANDUM in Support re 295 MOTION for Partial Summary Judgment Failure to End Placement When the Reason For Placement Ends filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibits (filed under seal), # 2 Appendix Deposition Transcripts (Excerpts) (filed

under seal))(Pevar, Stephen) (Attachment 1 replaced on 11/16/2016) (TAL). (Attachment 2 replaced on 11/16/2016) (TAL). (Entered: 11/16/2016)

11/16/2016

297 STATEMENT OF Undisputed MATERIAL FACTS re 295 Motion for Partial Summary Judgment filed by All Plaintiffs. (Pevar, Stephen) (Entered: 11/16/2016)

12/01/2016 298 MOTION to Extend Deadlines by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 12/01/2016)

12/02/2016

299 TEXT ORDER granting 298 Motion to Extend Deadlines. SDDSS Defendants' response to 295 and 290 Plaintiffs' Motions for Partial Summary Judgment shall be filed by 1/6/17. Plaintiffs' reply shall be filed by 1/27/17. Signed by Chief Judge Jeffrey L. Viken on 12/2/16. (SB) (Entered: 12/02/2016)

12/09/2016 300 Notice of Withdrawal of Attorney by Mark Vargo. Attorney Jeffrey R. Connolly terminated. (Connolly, Jeffrey) (Entered: 12/09/2016)

12/15/2016

301 (VACATED - SEE 383 ) ORDER granting 261 Motion for Partial Summary Judgment; denying 268 Motion to Strike. Signed by Chief Judge Jeffrey L. Viken on 12/15/16. (SB) Modified on 1/21/2020 (DJP). Modified on 1/21/2020 (DJP). (Entered: 12/15/2016)

12/15/2016

302 (VACATED - SEE 383 ) ORDER granting 1 at page 38 -- Plaintiffs' request for a declaratory judgment and granting in part 1 at page 38-39 -- Plaintiffs' request for injunctive relief. Plaintiffs' request for appointment of a monitor is denied without prejudice as premature. Signed by Chief Judge Jeffrey L. Viken on 12/15/16. (SB) Modified on 1/21/2020 (DJP). (Entered: 12/15/2016)

12/15/2016

303 (VACATED - SEE 383 ) DECLARATORY JUDGMENT. Signed by Chief Judge Jeffrey L. Viken on 12/15/16. (SB) Modified on 1/21/2020 (DJP). (Entered: 12/15/2016)

12/15/2016

304 (VACATED - SEE 383) PERMANENT INJUNCTION as to Defendants Lisa Fleming, Mark Vargo and Lynne A. Valenti, in their official capacities. Signed by Chief Judge Jeffrey L. Viken on 12/15/16. (SB) Modified text and created link on 1/21/2020 (TAL). (Entered: 12/15/2016)

12/19/2016 305 NOTICE of Appearance by Rebecca L. Mann on behalf of Mark Vargo. (Mann, Rebecca) (Entered: 12/19/2016)

01/03/2017 306 Unopposed MOTION to Extend Deadlines by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 01/03/2017)

01/04/2017

307 TEXT ORDER granting 306 Motion for Extension of Time. SDDSS defendants shall file their responses to 290 and 295 Plaintiffs Motions for Partial Summary Judgment by 1/3/17. Plaintiffs reply briefs shall be filed by 2/13/17. Signed by Chief Judge Jeffrey L. Viken on 1/4/17. (SB) (Entered: 01/04/2017)

01/05/2017

308 AMENDED TEXT ORDER granting 306 Motion for Extension of Time. SDDSS defendants shall file their responses to 290 and 295 Plaintiffs' Motions for Partial Summary Judgment by 1/13/17. Plaintiffs' reply briefs shall be filed by 2/13/17. Signed by Chief Judge Jeffrey L. Viken on 1/5/17. (SB) (Entered: 01/05/2017)

01/13/2017

309 NOTICE OF APPEAL as to 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay, 69 Order on Motion to Dismiss,, 304 Permanent Injunction, 302 Order, 303 Order, 301 Order on Motion for Partial Summary Judgment, Order on Motion to Strike, 217 Order on Motion for Reconsideration,,,,, by Mark Vargo. (paid $505 Appellate Filing fee; receipt number 0869-2426565) (Mann, Rebecca) (Entered: 01/13/2017)

01/13/2017

310 MOTION to Stay re 304 Permanent Injunction, 302 Order, 303 Order, 301 Order on Motion for Partial Summary Judgment, Order on Motion to Strike by Mark Vargo. (Mann, Rebecca) (Entered: 01/13/2017)

01/13/2017

311 MEMORANDUM in Support re 310 MOTION to Stay re 304 Permanent Injunction, 302 Order, 303 Order, 301 Order on Motion for Partial Summary Judgment, Order on Motion to Strike filed by Mark Vargo. (Mann, Rebecca) (Entered: 01/13/2017)

01/13/2017

312 NOTICE OF APPEAL as to 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay, 69 Order on Motion to Dismiss,, 302 Order, 303 Order, 301 Order on Motion for Partial Summary Judgment, Order on Motion to Strike, 217 Order on Motion for Reconsideration,,,,, by Honorable Craig Pfleifle. (paid $505 Appellate Filing fee; receipt number 0869-2426577) (Hurd, Jeffrey) Modified by editing docket text on 1/17/2017 (DLC). (Entered: 01/13/2017)

01/13/2017

313 OBJECTION by Defendants Lisa Fleming, Lynne A. Valenti re 296 Memorandum in Support of Motion, 294 Memorandum in Support of Motion, 295 MOTION for Partial Summary Judgment Failure to End Placement When the Reason For Placement Ends, 290 MOTION for Partial Summary Judgment Re: DSS Inadequate Training and Supervision (Morris, Robert) (Entered: 01/13/2017)

01/13/2017

314 AFFIDAVIT of Robert L. Morris re 296 Memorandum in Support of Motion, 294 Memorandum in Support of Motion, 313 Objection, 295 MOTION for Partial Summary Judgment Failure to End Placement When the Reason For Placement Ends, 290 MOTION for Partial Summary Judgment Re: DSS Inadequate Training and Supervision . (Morris, Robert) (Entered: 01/13/2017)

01/13/2017

315 JOINDER by Honorable Craig Pfleifle re 310 MOTION to Stay re 304 Permanent Injunction, 302 Order, 303 Order, 301 Order on Motion for Partial Summary Judgment, Order on Motion to Strike (Hurd, Jeffrey) Modified by editing docket text on 1/17/2017 (DLC). (Entered: 01/13/2017)

01/13/2017

316 RESPONSE to 294 Memorandum in Support of Motion, 290 Motion for Partial Summary Judgment filed by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 01/13/2017)

01/13/2017 317 RESPONSE to 291 Statement of Material Facts filed by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 01/13/2017)

01/13/2017

318 RESPONSE to 296 Memorandum in Support of Motion, 295 Motion for Partial Summary Judgment RE Failing to End Placement filed by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 01/13/2017)

01/13/2017

319 RESPONSE to 297 Statement of Material Facts RE Failing to End Placement filed by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 01/13/2017)

01/13/2017

320 (FILED IN ERROR) AFFIDAVIT of Robert L. Morris re 295 MOTION for Partial Summary Judgment Failure to End Placement When the Reason For Placement Ends, 294 Memorandum in Support of Motion, 318 Response, 296 Memorandum in Support of Motion, 290 MOTION for Partial Summary Judgment Re: DSS Inadequate Training and Supervision, 316 Response . (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6 - Sealed, # 7 Exhibit 7 - Sealed, # 8 Exhibit 8 - Sealed, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17 - Sealed, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21-a, # 22 Exhibit 21-b, # 23 Exhibit 21-c, # 24 Exhibit 21-d, # 25 Exhibit 22, # 26 Exhibit 23, # 27 Exhibit 24 Sealed, # 28 Exhibit 25 - Sealed, # 29 Exhibit 26 - Sealed, # 30 Exhibit 27 - Sealed, # 31 Exhibit 28 - Sealed, # 32 Exhibit 29, # 33 Exhibit 30, # 34 Exhibit 31, # 35 Exhibit 32, # 36 Exhibit 33, # 37 Exhibit 34, # 38 Exhibit 35, # 39 Exhibit 36 - Sealed, # 40 Exhibit 37 Sealed,

# 41 Exhibit 38 - Sealed, # 42 Exhibit 39, # 43 Exhibit 40) (Morris, Robert) (Attachment 2 replaced on 1/17/2017) (DLC). Modified by editing docket text on 1/19/2017 (DLC). (Entered: 01/13/2017)

01/13/2017

321 NOTICE OF APPEAL as to 150 Order on Motion for Partial Summary Judgment,, Order on Motion to Stay, 69 Order on Motion to Dismiss,, 304 Permanent Injunction, 218 Order on Motion to Compel, 302 Order, 303 Order, 301 Order on Motion for Partial Summary Judgment, Order on Motion to Strike, 217 Order on Motion for Reconsideration,,,,, by Lisa Fleming, Lynne A. Valenti. (paid $505 Appellate Filing fee; receipt number 0869-2426647) (Morris, Robert) (Entered: 01/13/2017)

01/16/2017

322 JOINDER by Defendants Lisa Fleming, Lynne A. Valenti re 311 Memorandum in Support of Motion, 310 MOTION to Stay re 304 Permanent Injunction, 302 Order, 303 Order, 301 Order on Motion for Partial Summary Judgment, Order on Motion to Strike (Morris, Robert) (Entered: 01/16/2017)

01/17/2017 323 TRANSMITTAL of Notice of Appeal to 8th Circuit Court of Appeals re 309 Notice of Appeal, (DLC) (Entered: 01/17/2017)

01/17/2017 324 TRANSMITTAL of Notice of Appeal to 8th Circuit Court of Appeals re 312 Notice of Appeal, (DLC) (Entered: 01/17/2017)

01/17/2017 325 TRANSMITTAL of Notice of Appeal to 8th Circuit Court of Appeals re 321 Notice of Appeal, (DLC) (Entered: 01/17/2017)

01/18/2017

NOTICE of Filing Error: 320 Affidavit,,,,, was filed in error and should be disregarded. (Morris, Robert) (Entered: 01/18/2017)

01/18/2017

326 AFFIDAVIT of Robert L. Morris re 295 MOTION for Partial Summary Judgment Failure to End Placement When the Reason For Placement Ends, 294 Memorandum in Support of Motion, 318 Response, 296 Memorandum in Support of Motion, 290 MOTION for Partial Summary Judgment Re: DSS Inadequate Training and Supervision, 316 Response . (Attachments: # 1 Exhibit 1 - SDDSS Exhibit Index, # 2 Exhibit 2 - New Employee Orientation Program, # 3 Exhibit 3 - Screening Guideline, # 4 Exhibit 4 - ICWA Compliance Desk Guide, # 5 Exhibit 5 - IFA Placement Checklist 2015, # 6 SEALED Exhibit 6 - RFS (Request for Service) Exemplar (Confidential), # 7 SEALED Exhibit 7 - ICWA Affidavit Exemplar (Confidential), # 8 SEALED Exhibit 8 - Affidavit of the Department Exemplar (Confidential), # 9 Exhibit 9 - CPS Manual, # 10 Exhibit 10 - CPS Staff Training - Certification, # 11 Exhibit 11 2016 Certification Training Schedule, # 12 Exhibit 12 - PCA Participant Book, # 13 Exhibit 13 - Safety Intervention Flow Chart,

# 14 Exhibit 14 - Foundation Training - Facilitator's Guide, # 15 Exhibit 15 - Foundation Training - Participant Handbook, # 16 Exhibit 16 - Intake Training, # 17 SEALED Exhibit 17 Certification Training Trainer List, # 18 Exhibit 18 - DSS Legal Training, # 19 Exhibit 19 - DSS Legal Training, # 20 Exhibit 20 - DSS Legal Training - State's Attorneys, # 21 Exhibit 21A - DSS Legal Training, # 22 Exhibit 21B - DSS Legal Training, # 23 Exhibit 21C DSS Legal Training, # 24 Exhibit 22 - IFA Training, # 25 Exhibit 23 IFA Training, # 26 SEALED Exhibit 24 - DSS Childs File A11-645 (Confidential), # 27 SEALED Exhibit 25A - DSS Childs File A11-954 (Confidential), # 28 SEALED Exhibit 25B - DSS Childs File A11-954 (Confidential), # 29 SEALED Exhibit 25C - DSS Childs File A11-954 (Confidential), # 30 SEALED Exhibit 25D - DSS Childs File A11-954 (Confidential), # 31 SEALED Exhibit 26A - DSS Childs File A13-49 (Confidential), # 32 SEALED Exhibit 26B - DSS Childs File A13-49 (Confidential), # 33 SEALED Exhibit 27A - DSS Childs File A14-1044 (Confidential), # 34 SEALED Exhibit 27B - DSS Childs File A14-1044 (Confidential), # 35 SEALED Exhibit 28A - DSS Childs File A15 111 (Confidential), # 36 SEALED Exhibit 28B - DSS Childs File A15 111 (Confidential), # 37 Exhibit 29 - Green Book 1999 - State ICWA Affidavit, # 38 Exhibit 30 - ICWA Guidelines - Nov. 1979, # 39 Exhibit 31 - Safety Evaluation and Planning, # 40 Exhibit 32 Initial Contact and Assessment of Present Danger, # 41 Exhibit 33 Affidavit of Lisa Fleming - Region 1 Training, # 42 Exhibit 34 Affidavit of Lisa Fleming - Case Synopsis, # 43 Exhibit 35 - Affidavit of Cara Beers - State Certification Training, # 44 SEALED Exhibit 36 Exemplar IFA FY 2014: RFS ID 250290, # 45 SEALED Exhibit 37 Exemplar IFA FY 2014: RFS ID 264554, # 46 SEALED Exhibit 38A Exemplar IFA FY 2014: RFS ID 265814 (Containing 12 pages), # 47 SEALED Exhibit 38B - Exemplar IFA FY 2014: RFS ID 265814 (Continued from Exhibit 38A containing 13 pages), # 48 Exhibit 39 Affidavit of Virgena Wieseler, # 49 Exhibit 40 - Affidavit of Cara Beers) (Morris, Robert) (Attachment 6 replaced on 1/20/2017) (DLC). (Attachment 7 replaced on 1/20/2017) (DLC). (Attachment 8 replaced on 1/20/2017) (DLC). (Attachment 17 replaced on 1/20/2017) (DLC). (Attachment 26 replaced on 1/20/2017) (DLC). (Attachment 27 replaced on 1/20/2017) (DLC). (Attachment 28 replaced on 1/20/2017) (DLC). (Attachment 29 replaced on 1/20/2017) (DLC). (Attachment 30 replaced on 1/20/2017) (DLC). (Attachment 31 replaced on 1/20/2017) (DLC). (Attachment 32 replaced on 1/20/2017) (DLC). (Attachment 33 replaced on 1/20/2017) (DLC). (Attachment 34 replaced on 1/20/2017) (DLC). (Attachment 35 replaced on 1/20/2017) (DLC). (Attachment 36 replaced on 1/20/2017) (DLC). (Attachment 44 replaced on 1/20/2017) (DLC). (Attachment 45 replaced on 1/20/2017) (DLC). (Attachment 46 replaced on 1/20/2017) (DLC). (Attachment 47 replaced on 1/20/2017)

(DLC). Modified by adding descriptive text to SEALED Exhibits on 1/20/2017 (DLC). (Entered: 01/18/2017)

01/19/2017

327 USCA Case Number and Appeal Briefing Schedule Order for 309 Notice of Appeal, filed by Mark Vargo. USCA Case Number: 17-1135. (Attachments: # 1 briefing schedule)(TAL) (Entered: 01/23/2017)

01/19/2017

328 USCA Case Number and Appeal Briefing Schedule Order for 312 Notice of Appeal, filed by Craig Pfeifle. USCA Case Number: 17-1136. (Attachments: # 1 briefing schedule)(TAL) (Entered: 01/23/2017)

01/19/2017

329 USCA Case Number and Appeal Briefing Schedule Order for 321 Notice of Appeal, filed by Lynne A. Valenti, Lisa Fleming. USCA Case Number: 17-1137. (Attachments: # 1 briefing schedule)(TAL) (Entered: 01/23/2017)

01/24/2017

330 REPLY to Motion Response re 295 MOTION for Partial Summary Judgment Failure to End Placement When the Reason For Placement Ends filed by All Plaintiffs. (Pevar, Stephen) (Entered: 01/24/2017)

01/26/2017

331 RESPONSE to Motion re 310 MOTION to Stay re 304 Permanent Injunction, 302 Order, 303 Order, 301 Order on Motion for Partial Summary Judgment, Order on Motion to Strike filed by All Plaintiffs. (Pevar, Stephen) (Entered: 01/26/2017)

02/09/2017

332 ORDER denying 310 Motion to Stay and 315 and 322 Joinder Motions. Signed by Chief Judge Jeffrey L. Viken on 2/9/17. (SB) (Entered: 02/09/2017)

02/10/2017

TRANSMITTAL of Subsequent Filing to 8th Circuit Court of Appeals re 332 Order on Motion to Stay (DLC) (Entered: 02/10/2017)

02/13/2017

333 REPLY to Motion Response re 290 MOTION for Partial Summary Judgment Re: DSS Inadequate Training and Supervision filed by All Plaintiffs. (Pevar, Stephen) (Entered: 02/13/2017)

02/13/2017

334 BRIEF by Plaintiffs Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young re 313 Objection, Brief in Opposition to Defendants' Objection (Pevar, Stephen) (Entered: 02/13/2017)

02/27/2017 335 REPLY to 334 Brief filed by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 02/27/2017)

03/30/2017 336 MOTION for Leave to Supplement the Record by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Attachments:

# 1 Exhibit Deposition of Lynne Valenti)(Pevar, Stephen) (Attachment 1 replaced on 3/30/2017) (TAL). (Entered: 03/30/2017)

04/07/2017

337 ORDER granting 336 Motion for Leave to supplement the record. Signed by Chief Judge Jeffrey L. Viken on 4/7/17. (SB) (Entered: 04/07/2017)

04/21/2017

338 RESPONSE to Motion re 336 MOTION for Leave to Supplement the Record filed by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 04/21/2017)

04/25/2017

339 REPLY to Motion Response re 336 MOTION for Leave to Supplement the Record filed by All Plaintiffs. (Pevar, Stephen) (Entered: 04/25/2017)

05/16/2017

340 LETTER with enclosed Transcript of Evidentiary Hearing held on 08/17/2016, 286 , and Sealed Exhibits 1R, 4R and 5R to 239 sent by Clerk's Office to 8th Circuit Court of Appeals. (DLC) (Entered: 05/16/2017)

09/29/2017

341 ORDER denying 290 Motion for Partial Summary Judgment; denying 295 Motion for Partial Summary Judgment. Signed by Chief Judge Jeffrey L. Viken on 9/29/17. (SB) (Entered: 09/29/2017)

10/02/2017

TRANSMITTAL of Subsequent Filing to 8th Circuit Court of Appeals re 341 Order on Motion for Partial Summary Judgment. (DLC) (Entered: 10/02/2017)

10/11/2017

342 MOTION to Amend/Correct Plaintiffs' Complaint by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) (Entered: 10/11/2017)

10/11/2017

343 MEMORANDUM in Support re 344 Modified MOTION to Amend/Correct Plaintiffs' Complaint (Docket 1) filed by All Plaintiffs. (Pevar, Stephen) Modified by editing document link and docket text on 10/13/2017 (DLC). (Entered: 10/11/2017)

10/12/2017

344 Modified MOTION to Amend/Correct 1 Plaintiffs' Complaint (Docket 1) by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) Modified by creating link to document and editing docket text on 10/13/2017 (DLC). (Entered: 10/12/2017)

10/12/2017

345 SUPPLEMENT to 344 Modified MOTION to Amend/Correct Plaintiffs' Complaint (Docket 1) by Plaintiffs Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young Proposed Amended Complaint. (Pevar, Stephen) Modified by creating link and editing docket text on 10/13/2017 (DLC). (Entered: 10/12/2017)

11/06/2017

346 RESPONSE to Motion re 344 Modified MOTION to Amend/Correct Plaintiffs' Complaint (Docket 1) filed by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 11/06/2017)

11/16/2017

347 MOTION to Extend Deadlines by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) (Entered: 11/16/2017)

11/20/2017

348 TEXT ORDER granting 347 Motion to Extend Deadlines. Plaintiffs shall file their reply to 344 Motion to Amend by 11/30/17. Defendants have until 12/14/17 to file a surreply. Signed by Chief Judge Jeffrey L. Viken on 11/20/17. (SB) (Entered: 11/20/2017)

11/30/2017

349 REPLY to Motion Response re 344 Modified MOTION to Amend/Correct Plaintiffs' Complaint (Docket 1) filed by All Plaintiffs. (Attachments: # 1 Attachment Tracked changes to proposed amended complaint, # 2 Attachment clean version of proposed amended complaint, # 3 Exhibit 1 to the proposed amended complaint, # 4 Exhibit 2 to the proposed amended complaint, # 5 Exhibit 3 to the proposed amended complaint, # 6 Exhibit 4 to the proposed amended complaint, # 7 Exhibit 5 to the proposed amended complaint, # 8 Exhibit 6 to the proposed amended complaint, # 9 Exhibit 7 to the proposed amended complaint)(Pevar, Stephen) (Attachment 3 replaced on 11/30/2017) (SLT). (Attachment 9 replaced on 11/30/2017) (SLT). (Attachment 7 replaced on 12/1/2017) (SLT). (Attachment 4 replaced on 12/1/2017) (SLT). (Entered: 11/30/2017)

12/06/2017 350 ORDER. Signed by Chief Judge Jeffrey L. Viken on 12/6/17. (SB) (Entered: 12/06/2017)

12/22/2017

351 REPLY to 350 Order, 344 Motion to Amend/Correct, 349 Reply to Motion Response,,, SurReply filed by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 12/22/2017)

01/30/2018 352 ORDER granting 344 Motion to Amend. Signed by Chief Judge Jeffrey L. Viken on 1/30/18. (SB) (Entered: 01/30/2018)

01/31/2018

353 AMENDED COMPLAINT filed by Lisa Young, Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe. (Attachments: # 1 Exhibit 1: 48 Hour Hearing Transcript filed under seal, # 2 Exhibit 2: Temporary Custody Order filed under seal, # 3 Exhibit 3: ICWA Affidavit, # 4 Exhibit 4: Temporary Custody Order, # 5 Exhibit 5: 48-Hour Hearing Transcript, # 6 Exhibit 6: July 3, 2012 correspondence from Seventh Circuit Judicial Circuit Court, # 7 Exhibit 7: Temporary Custody Order filed under seal) (Pevar, Stephen) (Attachment 1 replaced on 1/31/2018) (TAL). (Attachment 2 replaced on 1/31/2018) (TAL). (Attachment 5 replaced on 1/31/2018) (TAL). (Attachment 7

replaced on 1/31/2018) (TAL). Modified on 1/31/2018 to add exhibit descriptions (TAL). (Entered: 01/31/2018)

02/20/2018 354 ANSWER to 353 Amended Complaint,, by Mark Vargo. (Mann, Rebecca) (Entered: 02/20/2018)

02/21/2018 355 Separate ANSWER to 353 Amended Complaint,, by Craig Pfeifle. (Hurd, Jeffrey) (Entered: 02/21/2018)

02/21/2018 356 ANSWER to 353 Amended Complaint,, by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 02/21/2018)

03/14/2018 357 MOTION for Clarification of Court's Order re 352 Order on Motion to Amend/Correct by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 03/14/2018)

04/03/2018

358 RESPONSE to Motion re 357 MOTION for Clarification of Court's Order re 352 Order on Motion to Amend/Correct filed by All Plaintiffs. (Pevar, Stephen) (Entered: 04/03/2018)

04/17/2018

359 REPLY to Motion Response re 357 MOTION for Clarification of Court's Order re 352 Order on Motion to Amend/Correct filed by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 04/17/2018)

05/04/2018

360 SCHEDULING ORDER AS TO COUNT IV: Discovery due by 11/2/2018. Motions due by 12/21/2018. Signed by Chief Judge Jeffrey L. Viken on 5/4/18. (SB) (Entered: 05/04/2018)

09/14/2018

361 OPINION of USCA as to 312 Notice of Appeal, filed by Craig Pfeifle, 321 Notice of Appeal, filed by Lynne A. Valenti, Lisa Fleming, 309 Notice of Appeal, filed by Mark Vargo. (TAL) (Entered: 09/14/2018)

10/02/2018 362 Unopposed MOTION to Stay re 360 Scheduling Order by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 10/02/2018)

10/17/2018 363 ORDER granting 362 Motion to Stay. Signed by Chief Judge Jeffrey L. Viken on 10/17/18. (SB) (Entered: 10/17/2018)

10/17/2018

TRANSMITTAL of Subsequent Filing to 8th Circuit Court of Appeals re 363 Order on Motion to Stay.. (DJP) (Entered: 10/17/2018)

10/22/2018

364 MOTION to DISMISS for Failure to State a Claim , MOTION to DISMISS for Lack of Jurisdiction by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 10/22/2018)

10/22/2018 365 MEMORANDUM in Support re 364 MOTION to DISMISS for Failure to State a Claim MOTION to DISMISS for Lack of Jurisdiction filed

by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 10/22/2018)

10/30/2018

366 MOTION to Extend Deadlines by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) (Entered: 10/30/2018)

11/01/2018

367 TEXT ORDER granting 366 Motion to Postpone Briefing Schedule. Signed by Chief Judge Jeffrey L. Viken on 11/1/18. (SB) (Entered: 11/01/2018)

12/04/2018

368 ORDER of USCA denying petitions for rehearing en banc and rehearing by panel as to 312 Notice of Appeal, filed by Craig Pfeifle, 321 Notice of Appeal, filed by Lynne A. Valenti, Lisa Fleming, 309 Notice of Appeal, filed by Mark Vargo. (TAL) (Entered: 12/04/2018)

12/11/2018

369 MANDATE from 8th Circuit COA issued in accordance with 9/14/18 COA opinion as to 312 Notice of Appeal, filed by Craig Pfeifle, 321 Notice of Appeal, filed by Lynne A. Valenti, Lisa Fleming, 309 Notice of Appeal, filed by Mark Vargo. (TAL) (Entered: 12/11/2018)

12/18/2018

370 RESPONSE to Motion re 364 MOTION to DISMISS for Failure to State a Claim MOTION to DISMISS for Lack of Jurisdiction filed by Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young. (Pevar, Stephen) (Entered: 12/18/2018)

01/02/2019

371 REPLY to Motion Response re 364 MOTION to DISMISS for Failure to State a Claim MOTION to DISMISS for Lack of Jurisdiction filed by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 01/02/2019)

01/07/2019 372 MOTION to Substitute Party Defendant by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 01/07/2019)

02/04/2019 373 MOTION to Substitute Party Defendant by Lisa Fleming, Lynne A. Valenti. (Morris, Robert) (Entered: 02/04/2019)

02/06/2019 374 ORDER granting 373 Motion to Substitute Party. Signed by Chief Judge Jeffrey L. Viken on 2/6/19. (SB) (Entered: 02/06/2019)

02/07/2019 375 AMENDED ORDER granting 373 Motion to Substitute Party. Signed by Chief Judge Jeffrey L. Viken on 2/7/19. (SB) (Entered: 02/07/2019)

02/14/2019

376 TEXT ORDER denying as moot 372 Motion to Substitute Party. Signed by Chief Judge Jeffrey L. Viken on 2/14/19. (SB) (Entered: 02/14/2019)

04/02/2019

377 LETTER from USCA regarding Writ Of Certiorari re 321 Notice of Appeal, filed by Lynne A. Valenti, Lisa Fleming.. (SAC) (Entered: 04/02/2019)

06/24/2019

378 REQUEST for Status Conference by Plaintiffs Oglala Sioux Tribe, Madonna Pappan, Rosebud Sioux Tribe, Lisa Young (Pevar, Stephen) (Entered: 06/24/2019)

09/29/2019

379 ORDER denying as premature 364 Motion to Dismiss for Failure to State a Claim; denying as premature 364 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief Judge Jeffrey L. Viken on 9/29/19. (SB) (Entered: 09/29/2019)

10/07/2019 380 Amended MOTION to DISMISS by Lisa Fleming. (Morris, Robert) (Entered: 10/07/2019)

10/08/2019

381 LETTER from USCA regarding Supreme Court order denying Writ Of Certiorari re 312 Notice of Appeal, filed by Craig Pfeifle, 321 Notice of Appeal, filed by Lynne A. Valenti, Lisa Fleming, 309 Notice of Appeal, filed by Mark Vargo.. (TAL) (Entered: 10/08/2019)

10/09/2019 382 RESPONSE to 380 Motion to Dismiss filed by All Plaintiffs. (Pevar, Stephen) (Entered: 10/09/2019)

01/16/2020 383 ORDER. Signed by U.S. District Judge Jeffrey L. Viken on 1/16/2020. (SLT) (Entered: 01/17/2020)

01/16/2020 384 ORDER. Signed by U.S. District Judge Jeffrey L. Viken on 1/16/2020. (SLT) (Entered: 01/17/2020)

01/16/2020 385 JUDGMENT. Signed by U.S. District Judge Jeffrey L. Viken on 1/16/2020. (SLT) (Entered: 01/17/2020)

06/25/2020

386 ORDER for Disposition of Exhibits submitted on behalf of plaintiff during 277 Evidentiary Hearing. These exhibits will be destroyed on 7/27/2020 UNLESS the party on whose behalf they were submitted arranges to retrieve them from the Clerks Office prior to this date. Signed by U.S. District Judge Jeffrey L. Viken on 6/25/2020. (CLR) (Entered: 06/25/2020)

07/31/2020

387 NOTICE of Destruction of Exhibits. Exhibits 1-4 admitted during 277 Evidentiary Hearing on behalf of plaintiff have been destroyed. (CLR) (Entered: 07/31/2020)

 
 Case 5:13-cv-05020-JLV Document 1 Filed 03/21/13 Page 1 of 39 PageID #: 1

STEPHEN L. PEVAR American Civil Liberties Union Foundation 330 Main St., First Floor Hartford, Connecticut 06106 (860) 570-9830
DANA L. HANNA Hanna Law Office, P.C. 816 Sixth St. P.O. Box 3080 Rapid City, South Dakota 57709 605-791-1832
ROBERT DOODY ACLU of South Dakota P.O. Box 1170 Sioux Falls, SD 57101 605-332-2508
Attorneys for Plaintiffs

FILED 

MAR 2 1 2013
~~ 


IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF SOUTH DAKOTA 


OGLALA SIOUX TRIBE and ROSEBUD SIOUX TRIBE, as parens patriae, to protect the rights of their tribal members; and ROCHELLE WALKING EAGLE, MADONNA PAPPAN, and LISA YOUNG, individually and on behalf of all other persons similarly situated,
Plaintiffs,
vs.
LUANN VAN HUNNIK; MARK VARGO; HON. JEFF DAVIS; and KIM MALSAM-RYSDON , in their official capacities.
Defendants.

Civ. No. \ ~- ~Q~ \)
CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 1

Case 5:13-cv-05020-JLV Document 1 Filed 03/21/13 Page 2 of 39 PageID #: 2
INTRODUCTION 
 Congress passed the Indian Child Welfare Act of 1978 (ICWA) in part because officials in South Dakota and other states were removing scores of Indian children from their homes based on insufficient evidence, and in perfunctory and inadequate hearings, in violation of federal law. Yet today, despite the added protections of ICWA, officials in Pennington County, South Dakota are removing scores of Indian children from their homes based on insufficient evidence, and in perfunctory and inadequate hearings, in violation of federal law. Attached to this complaint as "Exhibit I" is the transcript of one such Pennington County hearing. This hearing, involving Plaintiff Madonna Pappan, her husband, and their two children, lasted little more than sixty seconds. The court did not permit the Pappans to see the petition that had been filed against them by state officials. When Mr. Pappan asked what he was permitted to discuss, the court changed the subject and, a few seconds later, terminated the hearing. The court immediately entered an order (attached as "Exhibit 2") which found that "active efforts have been made to provide remedial services and rehabilitative programs" to the Pappans, and that taking the Pappan children away from their parents "is the least restrictive alternative available," even though no evidence was introduced during the hearing on those issues. The order stripped the Pappans of custody over their children for at least sixty days and gave that custody to the officials who had filed the secret petition. As discussed below, Plaintiffs Rochelle Walking Eagle and Lisa Young, like many other Indian parents in Pennington County, were treated similarly during their hearings, and their children were removed from their custody. This lawsuit seeks a speedy end to such a disgraceful process.
CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 2

Case 5:13-cv-05020-JLV Document 1 Filed 03/21/13 Page 3 of 39 PageID #: 3
This action is brought by the Oglala Sioux Tribe and the Rosebud Sioux Tribe, federally recognized Indian tribes with reservations in South Dakota, and by three Indian parents, individually and as representatives of a class of all Indian parents residing in Pennington County. Defendants are various state officials who routinely remove Indian children from their families in a manner that violates federal law.
This lawsuit challenges three policies, practices, and customs of the Defendants: (1) removing Indian children from their homes without affording them, their parents, or their tribe a timely and adequate hearing as required by the Due Process Clause, (2) removing Indian children from their homes without affording them, their parents, or their tribe a timely and adequate hearing as required by the Indian Child Welfare Act, and (3) removing Indian children from their homes without affording them, their parents, or their tribe a timely and adequate hearing and then coercing the parents into waiving their rights under the Due Process Clause and the Indian Child Welfare Act to such a hearing.
JURISDICTION AND VENUE 1. This action arises under the Fourteenth Amendment to the Constitution and the Indian
Child Welfare Act of 1978,25 U.S.C. §§ 1901 et seq. (ICWA), and seeks relief pursuant to 42 U.S.C. §1983. The Court has jurisdiction over this action pursuant to 28 U.S.C. §§
1331 and 1343(a)(3) and (4). Venue is properly found in this District pursuant to 28 U.S.C. §1391 (b), in that all parties reside, and plaintiffs' claims arose, within the District.
THE TRIBAL PLAINTIFFS 2. Plaintiffs Oglala Sioux Tribe and Rosebud Sioux Tribe are Indian tribes officially
recognized as such by the United States, with reservations located within the state of South Dakota. Both tribes have treaties with the federal government.
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3. The Tribes bring this action as parens patriae to vindicate rights afforded to their members by the Due Process Clause of the Fourteenth Amendment and by ICWA. The Tribes and their members have a close affiliation, indeed kinship, with respect to the rights and interests at stake in this litigation. The future and well-being of the Tribes is inextricably linked to the health, welfare, and family integrity of their members. See State ofAlaska, Dep't of Health and Social Services v. Native Village of Curyung, 151 P.3d 388, 402 (Alaska 2006) (recognizing that Indian tribes have a right to bring suit "as parens patriae to prevent future violations" of ICWA). See also Native Village of Venetie IRA Council v. Alaska, 155 F.3d 1150, 1152 (9th Cir. 1998) (same); State v. Native Village ofTanana, 249 P.3d 734, 736 (Alaska 2011) (same). See also Santosky v.
Kramer, 455 u.s. 745, 766 (1982) (recognizing "a parens patriae interest is preserving
and promoting" the welfare of children and families). 4. The Tribes also seek to vindicate their own rights under ICWA. ICWA was enacted in
large measure to protect the survival of Indian tribes. See 25 U.S.C. § 1901(3) (recognizing that nothing "is more vital to the continued existence and integrity of Indian tribes than their children.") See also Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 50-52 (1989). Indeed, the rights that tribes have under ICWA cannot be defeated or waived by tribal members. Id. at 34,52-53. As discussed below, the policies, practices, and customs of Defendants at issue in this litigation undermine, if not eviscerate, rights afforded these tribes by the Indian Child Welfare Act.
THE INDIVIDUAL PLAINTIFFS 5. Named plaintiffs Rochelle Walking Eagle, Madonna Pappan, and Lisa Young reside in
Pennington County, South Dakota and are members of the Rosebud Sioux Tribe, the
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Oglala Sioux Tribe, and the Standing Rock Sioux Tribe, respectively. They bring this action on their own behalf and on behalf of all other members of federally recognized Indian tribes, present and future, whose rights to family integrity are being or will be unlawfully infringed upon by the Defendants, as theirs were. The named plaintiffs are not seeking to interfere with, or overturn decisions in, their own cases but rather are seeking to expose and challenge systemic policies, practices, and customs of the Defendants that violate federal law. 6. Each named plaintiff has two children who were taken into custody by the Defendants or their agents on the grounds that these children were allegedly abused or neglected by their parents, and remained in state custody for months before finally being returned home. All three of these mothers suffered, and watched their children suffer, extreme emotional and psychological trauma as a result of this forced separation. They bring this action in an effort to protect themselves and other Indian parents and children from experiencing the irreparable and grievous injuries that they and their children suffered.
THE PLAINTIFF CLASS 7. The named plaintiffs bring this action on their own behalf and on behalf of all other
members of federally recognized Indian tribes who reside in Pennington County, South Dakota and who, like the plaintiffs, are parents or custodians of Indian children. 8. Class certification is sought pursuant to F.R.Civ.P. 23(a), (b)(2). Class certification is appropriate because the members of the class are so numerous that joinder of all persons is impracticable; there are questions of fact and law common to the class; the representative parties' claims are typical of the claims of the class; and the named plaintiffs will fairly and adequately represent the interests of the class. In addition, the
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defendants have acted or refused to act on grounds generally applicable to all members of the class, thereby making appropriate final declaratory and injunctive relief to the class as a whole, and the questions of law or fact common to members of the class predominate over any questions affecting individual members. See Doe v. Staples, 706 F.2d 985, 986 (6th Cir. 1983) (certifying a class, as here, of parents who challenged a state's practice of removing children from their homes in a manner inconsistent with the Due Process Clause); Nicholson v. Williams, 205 F.R.D. 92 (E.D.N.Y. 2001) (similar); People United for Children, Inc. v. City ofNew York, 214 F.R.D. 252 (S.D.N.Y. 2003) (similar).
DEFENDANTS 9. Defendant Kim Malsam-Rysdon is the Secretary of the South Dakota Department of
Social Services (DSS). In that capacity, she is the person in charge of the day-to-day operation of DSS, including Child Protection Services (CPS). DSS/CPS is the state agency that routinely submits affidavits in temporary custody proceedings seeking the removal of Indian children from their homes, is the agency to which custody is often granted of said children by state courts, and is then the agency responsible for placing those children in foster care settings. Defendant LuAnn Van Hunnik is the person in charge of CPS for Pennington County, South Dakota. 10. Defendant Mark Vargo is the duly elected State's Attorney for Pennington County. In that capacity, said Defendant (and his subordinates) represent the state, including DSS, in all abuse and neglect proceedings and in other proceedings to acquire temporary custody of children under state law. 11. Defendant Jeff Davis is the presiding judge of the Seventh Judicial Circuit Court of the state of South Dakota, and in that capacity, is the chief administrator of said Court.
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He and the other judges of the Seventh Judicial Circuit routinely consider Petitions for Temporary Custody filed by state officials involving members of the Plaintiff Tribes and members of the Plaintiff class, and routinely enter orders granting those petitions in a manner that violates federal law. 12. All of the acts set forth herein were undertaken by the Defendants under color of state law. All of the Defendants are sued in their official capacities only. Each Defendant is a "policy maker" with respect to the policies challenged in this lawsuit.
FACTUAL ALLEGATIONS 13. Custody of one's child is one of the most precious of all rights, and "perhaps the oldest
of the fundamental liberties recognized by [the Supreme] Court." Troxel v. Granville, 530 U.S. 57, 65 (2000). "The bonds between a parent and child are, in a word, sacrosanct" and protected by federal law. Swipies v. Kofka, 419 F.3d 709, 715 (8th Cir. 2005). 14. The right of parents and children to maintain their relationship without unnecessary interference by the state is a constitutionally protected liberty interest. Stanley v. Illinois, 405 U.S. 645, 649-58 (1972). "Both parents and children have a liberty interest in the care and companionship of each other." Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th Cir.1997). 15. Every constitutionally protected liberty (or property) interest is protected against loss by the Due Process Clause. See Board of Pardons v. Allen, 482 U.S. 369, 371, 381 (1987). That Clause requires the state to afford certain procedural safeguards whenever it seeks to limit or withhold a liberty or property interest. See Boddie v. Connecticut, 401 U.S. 371 (1971); Swipies, 419 F.3d at 713-14; Whisman, 119 F.3d at 1309.
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16. The Due Process Clause guarantees, among other things, "the opportunity to be heard at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552 (1965). See Swipies, 419 F.3d at 715.
17. Normally, procedural safeguards guaranteed by the Due Process Clause, including the right to notice and hearing, must be afforded by the government prior to a deprivation of a liberty or property interest. See Boddie, 401 U.S. at 379. When a genuine emergency exists and pre-deprivation notice and hearing are impossible, the state must provide those safeguards with reasonable promptness post-deprivation. See Goss v. Lopez, 419 U.S. 565,581-84 (1975); Coleman v. Watt, 40 F.3d 255,260-61 (8th Cir. 1994).
18. Because maintaining one's family integrity is a liberty interest, whenever state officials involuntarily remove a child from his or her home without a pre-deprivation hearing, the state must provide a prompt and adequate post-deprivation hearing. See Swipies, 419 F.3d at 715; Whisman, 119 F.3d at 1310 ("Even if defendants had a right to take temporary custody of [the child], defendants had a corresponding obligation to afford [the parents] an adequate post-deprivation hearing."); Whisman, at 1311 ("Of even more concern is the failure [of defendants] to provide [the child] his right to a prompt post-deprivation hearing; he clearly was not in a position to secure that right for himself."); K.D. v. County o/Crow Wing, 434 F.3d 1051, 1056 n.6 (8th Cir. 2006) ("Once a child is removed from parental custody without a court order, the state bears the burden to initiate prompt judicial proceedings to a provide post deprivation hearing. ")
19. Different interests protected by the Due Process Clause require different process. See Morrissey v. Brewer, 408 U.S. 471,481 (1972) ("Once it is determined that due process
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applies, the question remains what process is due. ") Determining what process is due in any given situation requires a balancing of the following three interests:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the functions involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See Coleman, 40 F.3d at 260-61. 20. The Eighth Circuit applied the Mathews balancing test in Coleman to determine what post-deprivation process was due to the owner of a car that had been impounded under exigent circumstances by local officials. The owner was given a hearing seven days after the impoundment, a delay the owner claimed violated his rights. The Eighth Circuit agreed with the owner (1) that automobiles "occupy a central place in the lives of most Americans;" (2) that "a more expeditious hearing would significantly reduce the harm suffered" by owners wrongly deprived of their vehicles; and (3) that the only interest the state has in delaying the hearing is the inconvenience of gathering the facts sooner, given that the hearing "must be provided in any event." Coleman, 40 F.3d at 260-61. Applying the Mathews test, the court held that a seven-day delay was unconstitutional. 21. In Swipies, the Eighth Circuit applied the rationale of Coleman to the very situation at issue here: the removal of children from their families. As in Coleman, the court found that the private interest at stake is significant; the risk of an erroneous deprivation and its attendant unnecessary injury is high when adequate process is not provided in a timely manner; and providing a speedy hearing is a minimal burden because the state must eventually provide such a hearing anyway. The court held:
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To put the matter otherwise, if seven days is too long for a car owner to wait for a post-deprivation hearing after his or her car has been towed and impounded, Coleman v. Watt, 40 F.3d 255, 260-61 (8th Cir. 1994), as a matter of law, a parent should not have to wait seventeen days after his or her child has been removedfor a hearing. Swipies, 419 F.3d at 715 (emphasis added). 22. Removing a child from his or her home is among the most drastic actions that a state can take against a liberty interest, and therefore the delay in providing an adequate hearing "should ordinarily be measured in hours and days, as opposed to weeks." Brown v. Daniels, 128 Fed.Appx. 910, 915 (3d Cir. 2005). 23. The private interests affected by the forceful removal of children from their parents could hardly be more profound. Numerous studies have reported the traumatic and often permanently scarring effect of removing children from their homes. See, e.g., Paul Chill, "Burden of Proof Begone: The Pernicious Effect of Emergency Removal in Child Protective Proceedings," 4 Family Court Review 457 (2003) ("Removals can be terrifying experiences for children and families....Children are thrust into alien environments, separated from parents, siblings, and all else familiar, with little if any idea of why they have been taken there."). Feelings of terror, grief, and abandonment are typical, and a child's forced separation from parents at the hands of a stranger can adversely affect his or her capacity to form attachments in the future and to trust authority. See id. at 458. 24. "The decision to remove a [child] from the family home is always serious and the resulting disruptions can often be traumatic for both parent and child." Rivera v. Marcus, 696 F.2d 1016, 1017 (2d Cir. 1982). Children should be separated from their parents by the state only in exigent circumstances when there is an imminent risk of serious injury. See generally Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2002); Nicholson v. Williams, 203 F. Supp.2d 153, 198-99 (E.D.N.Y. 2002) (citing expert testimony that even
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a short breach in the familial bond caused by involuntary separation of the child from his or her home will likely be detrimental to the child's well-being, cause distress and despair, and result in feelings of self-blame that could last a lifetime); B.S. v. Somerset County, 704 F.3d 270, 272 (3d Cir. 2013) (recognizing that removing a child from the home is a "drastic" action that has "profound ramifications for the integrity of the family unit and for each member of it."). 25. This is especially true for Indian children, most of whom are placed by the Defendants in non-Indian settings after removal from their families, and thus will suffer both a cultural as well as a familial separation. Indeed, one reason Congress passed ICWA was to protect Indian children from experiencing those injuries if at all possible. 26. Yet, as explained more fully below, for at least the past three years, the Defendants have pursued a policy, practice, and custom of separating Indian children from their parents without providing them with a prompt and adequate post-deprivation hearing. In fact, Indian parents in Pennington County whose children have been removed by state officials usually wait a minimum of sixty days (and often ninety days) before receiving a hearing that complies with the Due Process Clause. 27. South Dakota has established a process for the removal of children from their homes in exigent circumstances. See SDCL Chap. 26-7A. In South Dakota, a child may be taken into state custody by a law enforcement or court services officer without a court order when there is an "imminent danger to the child's life or safety" and there is insufficient time to apply for a court order. SDCL § 26-7A-12(4). 28. Alternatively, a court may order temporary custody of a child upon application by a state's attorney, social worker of DSS, or law enforcement officer, if there is good cause
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to believe that "[t]here exists an imminent danger to the child's life or safety and immediate removal of the child from the child's parents, guardian, or custodian appears to be necessary for the protection of the child." Id. § 26-7A-13(1)(b). 29. No child may be held in custody longer than 48 hours (except weekends) "unless a temporary custody petition for an apparent abuse or neglect case or other petition has been filed." ld. § 26-7A-14. The court must convene a hearing within 48 hours after the child is taken into custody (except weekends) "unless extended by the court." ld. § 26­ 7A-15. 30. Whoever takes a child into state custody must immediately inform the child's parents or custodians, orally or in writing, that they have "the right to a prompt hearing by the court to determine whether temporary custody should be continued." ld. § 26-7A-I5. If the child is an Indian child, an effort must also be made to notify the child's tribe. ld.
31. South Dakota amended its laws after the passage of lewA to require that in any
custody proceeding involving an Indian child, the state's attorney must provide notice to "the parent or Indian custodian and the Indian child's tribe, if known, of the pending proceedings and of their right of intervention." ld. § 26-7A-15.1(1). The notice "shall be written in clear and understandable language and shall include" a copy of the petition for temporary custody and a statement of the rights of the parents, custodians, and tribe. ld. § 26-7A-I5.1 (4). The notice must state that the tribe has a right "to be granted up to twenty days from the receipt of the notice to prepare for the proceeding." ld. § 26-7A­ 15.1 (4)(d)(iii). 32. No foster care placement proceeding may be held "until at least ten days after receipt" of notice by both the parents and the child's Indian tribe, and both the parents and the
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tribe have a right to request an additional ten days. ld. § 26-7A-15.l(3). (ICWA, too, prohibits a foster care placement hearing from occurring until ten days after service of formal notice to the parents and the child's tribe. 25 U.S.C. § 1912(e)). 33. The purpose of South Dakota's temporary custody (or "48-hour") hearing is "to determine whether temporary custody should be continued" or whether the child may safely be returned to the parents. S.D.C.L. § 26-7A-15. 34. The 48-hour hearing is expected to be an evidentiary hearing. See id. § 26-7A-18 ("At the temporary custody hearing the court shall consider the evidence of the need for continued temporary custody of the child in keeping with the best interests of the child."). The court's duty to conduct an evidentiary hearing is explained in the "South Dakota Guidelines for Judicial Process in Child Abuse and Neglect Cases," promulgated by the South Dakota Unified Judicial System ("Guidelines") in 2007 (available at sdjudicial.comlcourtinfo/childabuse.aspx). The Guidelines state:
Pursuant to SDCL 26-7A-18, at the 48 Hour Temporary Custody Hearing the court shall consider evidence of the need for continued temporary custody ... to determine whether continued custody outside the home is necessary to protect the child. The purpose is to decide whether the child can be safely returned home and when. The decision should be based on a competent assessment of the risks and dangers to the child. The Court should evaluate the current and future danger to the child and what can be done to eliminate the danger. Guidelines, at 33 (emphasis added). 35. No court can reasonably make a "competent assessment of risk," evaluate "current and future danger to the child," and determine "what can be done to eliminate the danger" without hearing the relevant facts and offering the parents a meaningful opportunity to present evidence and contest the allegations against them.
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36. The Guidelines anticipate that the court will hear evidence from the family services specialist assigned by DSS to the case. The Guidelines state: "The family services specialist should be ready to detail reasonable efforts [to avoid removal of the child] at the 48 hour hearing," including "historical and current information" such as contacts with the parents since the child's removal and previous abuse or neglect issues. Id. at 37-38.
37. The Guidelines state that where the child is Indian, DSS must support its Petition for Temporary Custody either with an "ICWA Affidavit" or by oral testimony from a "'qualified expert that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child (25 USC 1912(e))." Guidelines, at 46. Attached to the Guidelines is a model ICWA affidavit ("Form 6"), a copy of which is attached to this complaint as "Exhibit 3."
38. The Guidelines also state that, in any 48-hour hearing involving an Indian child, "the Court must determine whether the agency has made active efforts to preserve the family (25 U.S.C.A. 1912(d))" and whether the person endangering the child has "been removed from the home so the child could remain." Guidelines, at 38. Moreover, at the conclusion of the hearing, the court must "determine that removal of the child is or was necessary because continued presence in the home or return to the home would be contrary to the child's welfare. Id. at 37.
39. The fact that South Dakota law anticipates that the 48-hour hearing will be an evidentiary hearing is reflected by the model "Temporary Custody Order" attached to the Guidelines as "Form 7," a copy of which is attached hereto as "Exhibit 4." The model order recommends that the court make the following findings: That there is probable cause to believe that the child(ren) is/are abused or neglected, . . . .That temporary custody is the least restrictive
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alternative in the child(ren)'s best interest. ... That active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the break-up of the Indian family and that these efforts have proven unsuccessful. . . .That continued custody of the child by the parents or Indian custodian is likely to result in serious emotional or physical damage to the child.
40. The Guidelines recognize that gathering all the evidence required by the 48-hour
hearing could be so time-consuming that the court may need to continue the hearing: A 48 Hour Temporary Custody Hearing involves substantial time and resources. . . .[The court's decision must be] based on careful consideration of the circumstances of the case. Due to constraints of time, it might not be possible for the Court to conduct a complete initial custody hearing. In these circumstances, the Court should . . . (c) Continue the 48 Hour Temporary Custody Hearing and set the time, date and place of the continued hearing.
Guidelines, at 41-42 (emphasis added). 41. Under South Dakota law, the court has at least three options at the conclusion of the 48­
hour hearing. First, the court may order that the child be returned to the family. Second,
the court may direct that DSS file a formal petition alleging abuse or neglect. Third, the
court may order that custody of the child be continued without the filing of a formal
petition "under the terms and conditions for duration and placement that the court requires, including placement of temporary custody of the child with the Department of Social Services, in foster care or shelter." SDCL § 26-7A-19(2). If the court selects the third option, "the court shall review the child's temporary custody placement at least once every sixty days.!! ld. South Dakota allows a child to "be held in temporary custody until released by order of the court." ld. § 26-7A-16. 42. As discussed below, Defendants' hearings never involve the "substantial time and resources" contemplated by the Guidelines (as Ms. Pappan's sixty-second hearing illustrates), never allow for any witness testimony, never allow the parents to see the
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petition filed against them, never allow the parents to see the affidavit filed in support of that petition, never allow the parents to comment on whether continued custody is the least restrictive alternative, never allow the parents to comment on whether the state has engaged in active efforts to prevent a break-up of the family; and never allow the parents to obtain counsel and resume the hearing in a timely manner. Similarly, the Defendants also fail to afford Indian tribes the safeguards to which they are entitled. 43. Certain aspects of Defendants' 48-hour hearings were recently determined by the South Dakota Supreme Court to comply with state law and with ICWA. See Cheyenne River Sioux Tribe v. Davis, 2012 S.D. 69 (2012). However, the court did not address the due process issues raised here. Moreover, the court's interpretation of ICWA is not binding on federal courts. A federal court is not bound by what a state court has decided on a federal claim. See Olcott v. The Supervisors, 83 U.S. 678, 683 (1872); Lawrence County v. Lead-Deadwood School Dist. No. 40-1, 469 U.S. 256 (1985) (rejecting an interpretation of federal law made by the South Dakota Supreme Court). 44. It is federal law-not state law-that determines what process is due whenever the state removes children from their families. See Swipies, 419 F.3d at 716 ("a state statute cannot dictate what procedural protections must attend a liberty interest-even a state­ created one-as this is the sole province of federal law.II (Citation omitted.)). Any state law that conflicts with federal law is invalid under the Supremacy Clause of the Constitution. See Lawrence County, 469 U.S. at 703; Ross v. Arkansas State Police, 479 U.S. 1 (1986). 45. Nothing in state law prevents the Defendants from including within their 48-hour hearing all the procedural safeguards required by federal law, or from continuing that
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hearing for several days and to then meet federal requirements. Rather, the Defendants have chosen not to provide a meaningful hearing at a meaningful time. 46. Likewise, nothing in state law prevents Defendants Van Hunnik, Vargo, and Malsam­ Rysdon from training their staff to request that the court afford Indian parents the procedural safeguards required by federal law at each 48-hour hearing, and from giving parents a copy of the documents that these Defendants have filed with the court. Rather, these Defendants have chosen not to do so. 47. Defendants Van Hunnik, Malsam-Rysdon, and Vargo may contend that the practice of refusing to afford an adequate hearing until sixty days (or longer) after Plaintiffs' liberty interests have been breached is the fault of Judge Davis and the other judges on the Seventh Circuit However, even if the judiciary initiated this practice, the other Defen­ dants have ratified and adopted it, and it has become the official policy, practice, and custom of all the Defendants. See Coleman, 40 F.3d at 262 (holding that where executive officials voluntarily adopt a practice initiated by a court, the practice becomes an official policy, practice, and custom of the executive branch for purposes of federal liability). For instance, rather than request a prompt due process hearing for Indian parents, these Defendants almost always request that the court grant DSS custody of Indian children for a minimum of sixty days before affording the parents a proper hearing. Thus, these Defendants do not even try to comply with the Due Process Clause. 48. DSS is required to ensure that Indian families subjected to temporary custody hearings, as well as the tribes in which these families are members, receive the procedural protections guaranteed them by federal law. Defendants Vargo, Malsam-Rayson, and Van Hunnik must train their staff accordingly. These Defendants are failing to do so,
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exhibiting deliberate indifference to the rights of Indian parents and Indian tribes, causing them to suffer irreparable injury. See City of Canton v. Harris, 489 U.S. 378, 387-88 (1989); Whisman, 119 F.3d at 1311 (noting that plaintiffs' claims were, like the claims here, "based upon failure to properly train and supervise as well as creating, encouraging and following the unconstitutional custom and practice of detaining children for thirty [here: sixty to ninety] days without a due process hearing."). 49. The policy, practice, and custom of the Defendants of not providing constitutionally adequate notice and hearing promptly after the removal of Indian children from their homes has injured the named Plaintiffs, and will continue to injure all Indian parents, until this policy, practice, and custom ends. 50. All three of the named plaintiffs-Madonna Pappan, Rochelle Walking Eagle, and Lisa Young--were victims of Defendants' policies, practices, and customs described above and had their children removed in court proceedings that violated federal law. 51. In all three cases, DSS employees under the supervision of Defendants Malsam-Rysdon and Van Hunnik prepared a petition and signed an ICWA affidavit alleging that the children of these parents were at risk of serious injury if they remained in their homes. At their respective hearings, the parents were (a) not allowed to see the petition, (b) not allowed to see the affidavit, (c) not allowed to cross-examine the person who submitted the affidavit, (d) not allowed to offer any evidence contesting the allegations, (e) not allowed to offer any evidence as to whether the state had made active efforts to prevent the break-up of the family, and (1) not allowed to offer any evidence regarding whether removal of their children was the least restrictive alternative. The only "evidence" mentioned at the hearing were hearsay statements from the state's attorney.
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52. Nevertheless, at the conclusion of all three hearings, the court removed all six children from their respective homes for a minimum of sixty days. In addition, in all three cases the court issued virtually identical findings adverse to the parents regarding issues that were not addressed in these hearings, such as a finding that the Defendants had made active efforts to prevent the breakup of the family and that removal of the children from the home was the least drastic alternative available.
53. Attached as "Exhibit 5" is another transcript that illustrates Defendants' unconstitutional practices. As the transcript shows, the court (per Defendant Davis) was asked by the intervener Oglala Sioux Tribe (through its counsel Dana Hanna) if the Tribe could "advise the Court as to the basic facts of taking [the) children." The court denied the request, stating: "It's a 48 hour hearing, Mr. Hanna, and I'm not going to go into why the children were removed. That's not my concern at this point." (Exhibit 5 at 8.)
54. Next, Mr. Hanna asked Judge Davis to return the children to the mother because no evidence had been submitted to support any other result. Judge Davis denied the motion, stating: !II don't have what I need here today at the 48 hour hearing to make [that decision)." (Id. at 10.)
55. Given that Judge Davis (by his own admission) lacked sufficient information to determine if the allegations against the mother were valid, the court should have set the matter for a speedy evidentiary hearing. This is precisely what Mr. Hanna requested. See id. at 12 (requesting the continuation of the hearing until "a week from now or within the reasonably near future to [determine) whether there's any factual basis at all for taking these children."). The court not only denied the motion but decided all issues against the mother and removed the children from the home for a minimum of sixty days.
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56. Thus, Judge Davis prevented anyone from introducing the evidence upon which he could have made an informed decision. He rendered the allegations submitted by the state's attorney and DSS irrefutable.
57. The practice of these Defendants, then, is to allow DSS to wield virtually unlimited authority to remove Indian children from their families. Any evidence that might contradict the allegations in the state's petition is barred from the 48-hour proceeding.
58. Defendants' 48-hour hearing is more akin to an ex parte proceeding than an adversarial hearing. The parents are not permitted to discuss the allegations, and those allegations are presumed true by the court. Similarly, the tribe is not permitted to intervene in any meaningful way because all the relevant documents are kept a secret, and no one is permitted to call witnesses or cross-examine the DSS worker who signed the affidavit.
59. Defendants' 48-hour hearings usually result in the forced removal of Indian children from their homes for a minimum of sixty days (and most often ninety days) before the parents and their children are afforded a post-deprivation hearing at which they can present evidence and contest the allegations against them. This is what happened to Plaintiffs Walking Eagle, Pappan, and Young.
60. Moreover, Defendants' 48-hour hearings typically result in the placement of Indian children in non-Indian homes or private institutions operated by non-Indians, as was the case with the children of Plaintiffs Walking Eagle, Pappan, and Young. Therefore, the Oglala and Rosebud Sioux Tribes, as well as every Indian parent living in Pennington County with Indian children, have a fundamental interest in seeking to halt the continuation of the policies, practices, and customs challenged in this lawsuit.
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61. It took a minimum of sixty days before Plaintiffs Walking Eagle, Pappan, and Young were permitted to retain custody of their children. All three Plaintiffs have a good faith and reasonable belief that had the court afforded them a due process hearing soon after the 48-hour hearing, there is substantial likelihood that the court would have ordered DSS to return their children. Indeed, at the 60-day hearing for Plaintiff Walking Eagle, the court dismissed the charges against her, rejected the claims of DSS of abuse and neglect, and ordered DSS to return her children forthwith. CLAIM I: VIOLATION OF THE DUE PROCESS CLAUSE
62. Whenever state officials forcibly remove a child from his or her family, the state is required by the Due Process Clause to provide a meaningful post-deprivation hearing at a meaningful time. Newton v. Burgin, 363 F. Supp. 782 (W.D.N.C. 1973) (three-judge court), affd mem" 414 U.S. 1139 (1974); Swipies v, Kofka. 419 F.3d 709 (8th Cir. 2005); Whisman v, Rinehart, 119 F.3d 1303 (8th Cir. 1997).
63. The 48-hour hearings that Defendants convene following the involuntary removal of Indian children from their homes are not meaningful hearings for purposes of the Due Process Clause.
64. Therefore, Defendants must hold a constitutionally adequate hearing soon after their 48-hour hearings. See Martin v, Texas Dep't ofProtective and Regulatory Services. 405 F. Supp.2d 775. 790 (S.D. Tex. 2005) (noting that the state's early hearing may not have passed constitutional scrutiny but defect was cured when state provided an adequate hearing ten days later).
65. The policy, practice, and custom of the Defendants is to wait at least sixty days (and more often ninety days) before providing parents whose children have been removed
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from their custody with adequate notice, an opportunity to present evidence on their behalf, an opportunity to contest the allegations, and a written decision based on competent evidence. As a matter of law, such an exorbitant delay violates the Due Process Clause. See Swipies, 419 F.3d at 715; Whisman, 119 F.3d at 1309; Coleman, 40 F.3d at 260-61; Doe v. Staples, 706 F.2d 985, 990-91 (6th Cir. 1983); Weller v. Dep't of Social Services, 901 F.2d 387, 393 (4th Cir. 1990). See also Heartland Academy Community Church v. Waddle, 427 F.3d 525, 535 (8th Cir. 2005). 66. Plaintiffs are unaware of a single 48-hour hearing that did not accept the allegations made by DSS and order the removal of Indian children from their homes, even though the parents were not afforded adequate notice and an opportunity to contest those allegations. These hearings are, as Justice Sabers stated in a related context, a "rubber stamping formality." See In re D.M, 677 N.W.2d 578, 582 (S.D. 2004) (Sabers, J., dissenting). 67. The first Mathews factor considers the private interests at stake in the deprivation. Here, as noted earlier, the private interests in maintaining family integrity are particularly substantial. 68. The second Mathews factor considers whether the process employed by the state increases the risk of an erroneous deprivation and whether additional process might reduce that risk. Here, the process employed by the Defendants drastically increases the risk of an erroneous deprivation because the Defendants withhold from parents the very procedures that have long been recognized as fundamental to due process of law. 69. Indeed, Defendants' practices could hardly be more unfair and unreliable. At Defendants' 48-hour hearings, the state is permitted to speak on the issues to be decided but not the parents. Providing parents with rudimentary due process, including notice
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and an opportunity to contest the charges, will obviously reduce the risk of an erroneous deprivation. See Swipies, 419 F.3d at 715; Coleman, 40 F.3d at 260-61; Rivera v. Marcus, 696 F.2d 1016, 1027-28 (2d Cir. 1972) (commenting that where, as here, parents are provided with no opportunity at an early stage to explain their fitness and contest allegations of having neglected their children, the risk of an erroneous deprivation is unacceptably high); Johnson v. City of New York, 2003 WL 1826122 at *13 (S.D.N.Y. 2003) (similar). 70. The third Mathews factor considers whether the state would be unnecessarily burdened by having to provide additional procedures. Defendants eventually provide a constitutionally adequate post-deprivation hearing to parents whose children have been removed from the home, and thus there will be slight (if any) additional burden on the Defendants if the same hearing is provided at an earlier time. See Rivera, 696 F.2d at 1028 (finding fault with a system similar to the one at issue here, given that procedures "are already in place" by which a prompt hearing could have been provided to the parents); Swipies, 419 F.3d at 715; Coleman, 40 F.3d at 260-61. 71. The mere fact that the Defendants will have to expedite their trial preparations is no reason to deny Indian families time-honored procedural safeguards against unnecessary injury. See County ofRiverside v. McLaughlin, 500 U.S. 44 (1991) (holding that county officials must provide arrestees with a probable cause hearing within 48 hours of arrest despite the administrative burden necessary to meet that short deadline). 72. Normally, parents should be afforded an adequate post-deprivation hearing within seven days after the removal of their children. See Coleman, 40 F.3d at 260-61 (holding that a seven-day delay in providing a hearing to car owners following the impoundment
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of their cars by state officials violated the Due Process Clause); Swipies, 419 F3d at 715 (citing Coleman in holding that a seventeen-day delay in providing a hearing to parents following the removal of their children by a state agency clearly violates the Due Process Clause); Brown v. Daniels, 128 Fed.Appx. 910, 915 (3d Cir. 2005) (holding that the delay in providing an adequate hearing following the removal of children from the home "should ordinarily be measured in hours and days, as opposed to weeks."). For reasons explained in the next section, in order to fulfill the congressional purposes of the Indian Child Welfare Act, Indian parents and Indian tribes are entitled to a few additional days to prepare for the due process hearing, but without question, Defendants' policy, practice, and custom of delaying the hearing for a minimum of sixty days violates the Fourteenth Amendment. 73. Defendants' policy, practice, and custom of denying Indian parents--as Plaintiffs Walking Eagle, Pappan, and Young were denied--a meaningful hearing at a meaningful time following the removal of their children violates rights guaranteed to them by the Fourteenth Amendment and has caused, is causing, and will continue to cause Indian parents to suffer irreparable injury. Redress is sought pursuant to 42 U.S.C. § 1983.
CLAIM II: VIOLATIONS OF THE INDIAN CHILD WELFARE ACT
74. The Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 et seq., is a remedial statute. The Act was passed in response to the removal of large numbers of American Indian children from their homes by state agencies under dubious circumstances and without adequate procedural guarantees.
75. After years of hearings and studies, Congress found "that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their
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children from them by nontribal public and private agencies and that an alanningly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions." 25 U.S.C. § 1901(4) (emphasis added). 76. Congress also found "that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." ld. §1901(5). 77. These removals were disastrous not only for many Indian families but also for their tribes, which were losing their future generations. The wholesale separation of Indian children from their families "is perhaps the most tragic and destructive aspect of American Indian life today," resulting in a crisis "of massive proportions." H.R. Rep. No. 95-1386 p. 9 (1978). 78. Another reason ICWA was passed was to enforce the federal government's trust obligations to Indians and tribes. See 25 U.S.C. § 1901(3) (explaining that "the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe. It). 79. In enacting ICWA, Congress declared "that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.II ld. § 1902. 80. The stated purpose of the Act is "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." ld. Congress recognized
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that nothing "is more vital to the continued existence and integrity of Indian tribes than their children." Id. § 1901(3). 81. ICWA was enacted "to prevent states from improperly removing Indian children from their parents, extended families, and tribes." Cohen's Handbook of Federal Indian Law (Nell Jessup Newton ed., 2005) at 820. 82. The Oglala Sioux Tribe and the Rosebud Sioux Tribe are among the intended beneficiaries of ICWA and have enforceable rights under ICWA. See Holyfield, 490 U.S. at 52 (recognizing that Indian tribes have an interest in the custody of Indian children "which is distinct from but on parity with the interest of the parents" and which "finds no parallel in other cultures found in the United States. It is a relationship that many non­ Indians find difficult to understand and that non-Indian courts are slow to recognize."). 83. In fact, many of the safeguards set forth in ICWA apply only to Indian tribes. See, e.g., 25 U.S.C. §§ 1911(a) (right to exclusive jurisdiction over children domiciled on the reservation); 1911(c) (right of intervention in state court proceedings); 1912(a) (right to notice in involuntary proceedings in state court); 1912(c) (right to examine documents filed with state courts); 1914 (right to petition to invalidate a state court order); and 1915(e) (right to request the record of any Indian child's state court placement). 84. Because ICWA is a remedial statute passed for the benefit of Indians and tribes, it "'must be liberally construed with all doubts resolved in favor of the Indians.' Preston v. Heckler, 734 F.2d 1359, 1369 (9th Cir. 1984); accord Bryan v. Itasca County, Minn., 426 U.S. 373, 392 (1976)." In re Esther, 248 P.3d 863, 869 (N.M. 2011). See also In re J.8.B., 691 N.W.2d 611, 619 (S.D. 2005) (holding that these rules of construction apply to ICWA and stating that, given ICWA, "it is to the benefit of Indian children to remain
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within their families and only after 'active efforts' to reunite those families have proven unsuccessful should the children be removed."). 85. ICWA creates a set of procedures that were expressly intended to supplant state procedures whenever the two are in conflict. As the Supreme Court explained in Mississippi Band ofChoctaw Indians v. Holyfield, 490 U.S. 30,44-45 (1989):
[T]he purpose of the ICWA gives no reason to believe that Congress intended to rely on state law for the definition of a critical term; quite the contrary. It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-Ii-vis state authorities. 86. Among other things, ICWA confers rights and protections on Indian parents and children in any "foster care placement," 25 U.S.C. § 1912, as well as on Indian tribes, including "a right to intervene at any point in [a foster care] proceeding." Id. § 1913(c). 87. A "foster care placement" for purpose of ICWA, is "any action removing an Indian child from its parents or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated." Id. § 1903(1 )(i). 88. Thus, the 48-hour hearing conducted by the Defendants is a "foster care placement" under ICWA whenever the court, at the conclusion of the hearing, issues an order removing an Indian child from its parents or Indian custodian. 89. The fact that the 48-hour hearing is a "foster care placement" for purposes of ICWA is acknowledged in the Green Book. The Green Book contains a model Temporary Custody Order, see Green Book at 113-14 (a copy of which is attached as "Exhibit 4"), and it includes ICWA-related findings that the court must make. The Green Book
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explains: "In ICWA cases, if the child(ren) remain in foster care, these additional findings must be added to avoid a challenge of the validity of the foster care placement." See Green Book at 114 n. 6 (emphasis added). 90. Accordingly, the Defendants must ensure that the Indian parents, Indian children, and Indian tribes involved in their 48-hour bearings are afforded all of the procedural protections that ICWA mandates in foster care placements. 91. The policies, practices, and customs of the Defendants violate three provisions of ICWA--§§ 1922, 1912(d), and 1912(e)--and are inconsistent with the Act's purpose. 1. Defendants are violating § 1922 92. Section 1922 imposes two duties-one procedural, one substantive-on state officials when they remove an Indian child from the horne in an emergency. First, as a matter of procedure, state authorities "shall expeditiously initiate a child custody proceeding" that must comply with ICWA. 93. Second, as a matter of substance, state officials "shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.It (Emphasis added.) 94. The substantive duty imposed by § 1922 is consistent with the overarching purpose of ICWA, as it guarantees that whenever state authorities remove Indian children from their homes, the separation will be for the shortest time reasonably possible, and that state officials will monitor this process to insure that the removal "terminates immediately" after the causes for the removal have been rectified.
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95. Defendants routinely violate their substantive duties under § 1922. Never during Defendants' 48-hour hearings is there an inquiry into whether the cause of the removal has been rectified, nor does the court direct DSS to pursue that inquiry after the hearing. Yet, this is precisely what the 48-hour must do in order to comply with ICWA. It is at the 48-hour hear that the court must hear evidence as to whether removal of the child "is no longer necessary to prevent imminent physical damage or harm to the child." Id If the state does not meet that burden of proof, the child must be returned to the family.
96. Attached as "Exhibit 6" is a decision issued in Plaintiff Lisa Young's case by a judge on Judge Davis' court, Judge Thorstenson (who left the bench in January 2013). As the decision reflects, rather than view § 1922 as imposing federal requirements in 48-hour hearings, the Defendants interpret § 1922 as authorizing state courts to ignore ICWA until much later in the process. See id. at 3 (citing § 1922 for the proposition that "48­ hour hearings are conducted under state statute, ... and ICWA, including its notice requirements, is not implicated at the 48-hour hearing. "). As Judge Thorstenson stated when counsel for the Oglala Sioux Tribe sought compliance with ICWA during Ms. Young's 48-hour hearing: "you have brought this issue up on numerous occasions, [and the court has consistently held] that ICWA does not apply to emergency hearings." Id at 11. Indeed, as a result of § 1922, according to Judge Thorstenson, "state law prevails in the 48-hour hearing" and "the Tribe does not have a fundamental right to fairness under ICWA" at that hearing. Id at 5-6.
97. Similarly, Defendants Malsam-Rysdon and Van Hunnik have not trained or directed their staff to insure that sufficient efforts will be made by DSS to reunite the family following 48-hour hearings and determine whether separating the family remains
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necessary. Indeed, Plaintiffs Walking Eagle, Pappan, and Young assert that had DSS

complied with § 1922, their children would have been returned to their homes much

sooner than they were.

98. Defendants' policy, practice, and custom of ignoring their substantive duties under §

1922 violates federal law and is causing Indian parents to suffer irreparable injury by

keeping Indian children in foster care longer than necessary.

2. Defendants are violating § 1912(d)

99. Section 1912(d) of ICWA sets forth another right that Defendants are violating. That

statute provides:

Any party seeking to effect a foster care placement of . . . an Indian child under State law shall satisfY the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the break-up of the Indian family and that these efforts have proved unsuccessful.

100.

By policy, practice, and custom, the Defendants never comply with §1912(d) in

any meaningful manner at 48-hour hearings. Although ICWA affidavits filed by

Defendant Vargo and his staff in connection with 48-hour hearings usually contain

averments regarding efforts made by DSS to provide remedial services and rehabilitative

programs to the family, parents are not permitted to see those averments, are not

permitted to contest them, and are not permitted to make any statements or offer any

evidence on those subjects. Yet at the conclusion of the 48-hour hearing, the court

always makes findings adverse to the parents on the § 1912(d) inquiry. See, e.g., Exhibit

2 (Temporary Custody Order for Plaintiff Pappan); Exhibit 7 (Temporary Custody Order

for Plaintiff Young).

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101.

Defendants Van Hunnik, Vargo, and Malsam-Rysdon and their subordinates

never seek to introduce sufficient evidence, and the court never receives sufficient

evidence, at 48-hour hearings to comply with § 1912(d). Yet the court uses the Model

Order and renders "active efforts" findings against the parents in virtually every case.

102.

Defendants' policy, practice, and custom regarding the interpretation of, and

application of, § 1912(d) violates federal law and is causing Indian parents, such as

Plaintiffs Walking Eagle, Pappan, and Young, to suffer irreparable injury.

3. Defendants are violating § 1912(e)

103.

Section 1912(e) of ICWA sets forth another right that Defendants are violating.

That statute provides:

No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

104.

By policy, practice, and custom, the Defendants never comply with §1912(e) in

any meaningful manner at 48-hour hearings. Although ICWA affidavits filed by

Defendants Vargo and his staff in connection with 48-hour hearings usually contain

averments that continued custody in the home is likely to result in serious emotional or

physical damage to the child, parents are not permitted to see those averments, are not

permitted to contest them, and are not permitted to make any statements or offer any

evidence on those subjects. Yet at the conclusion of the 48-hour hearing, the court

always makes findings adverse to the parents on the § 1912(e) inquiry. See, e.g., Exhibits

2 and 7 (Temporary Custody Orders for PlaintiffPappan and Young, respectively).

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105.

No evidence of damage to the child is ever submitted into the record except by

DSS under the cloak of secrecy, protected from rebuttal. Even though nothing bars the

Defendants from providing Indian parents prior to or even during the hearing with a copy

of the documents filed against them, the Defendants never do.

106.

Defendants' 4S-hour hearings are not designed to obtain the truth. Rather, they

are designed to ratify the opinions of DSS and allow DSS to continue retaining custody

of Indian children for a minimum of sixty days.

107.

Judge Thorstenson issued her decision in Ms. Young's case (Exhibit 6) "as a

means of clarifying some recurring questions of law that are prevalent in this case." See

id. at 1. One recurring question was whether § 1912(d) and § 1912(e) apply to 4S-hour

hearings. Consistent with Defendants' policy, practice, and custom, she ruled that they do

not. See Exhibit 6 at 4 ("Simply stated, § 1912 was not violated in this case because §

1912 does not apply at this stage of the proceedings.").

lOS.

According to Judge Thorstenson, 4S-hour hearings "are ill-suited for making §

1912(d) and (e) findings." /d. However, the following three things, not mentioned in the

court's decision, are true. First, Judge Thorstenson always made § 1912(d) and § 1912(e)

findings after each 4S-hour hearing anyway, as recommended in the Green Book's model

Temporary Custody Order, Form 7. (See Exhibit 4.)

109.

Second, the only reason why Defendants' 4S-hour hearings are "ill-suited" to

make the findings required by § 1912(d) and § 1912(e) is because it is Defendants'

policy, practice, and custom to keep them that way. No state law prohibits the

Defendants from addressing those issues in their 4S-hour hearings.

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110.

Third, Indian parents and Indian tribes are entitled to at least ten days' notice of a

foster care placement proceeding under both state and federal law. See SDCL § 26-7A­

15.1(3); 25 U.S.C. § 1912(e). Thus, the appropriate time to make the findings required

by §§ 1912(d) and (e) is in a hearing held on or shortly following the tenth day after

notice has been received (unless the tribe requests a 1O-day extension under § 1912(a».

One solution, then, is for the court to continue the 48-hour hearing until that time.

111.

Defendants Vargo, Malsam-Rysdon, and Van Hunnik and their subordinates

never seek to introduce sufficient evidence, and the court never receives sufficient

evidence, at 48-hour hearings to comply with § 1912(e). Yet the court renders § 1912(e)

findings against the parents in virtually every case.

112.

Nothing prevents the Defendants from holding a meaningful hearing ten days

after notice has been received by the parents and tribe and then making the § 1912(d) and

§ 1912(e) findings. Instead, Defendants typically delay such a proceeding for at least

sixty days. This policy, practice, and custom violates ICWA and is causing Indian

parents and the tribes of which they are members, as it caused Plaintiffs Walking Eagle,

Pappan, and Young and their tribes, to suffer irreparable injury. Relief is sought pursuant

to 42 U.S.C. § 1983.

CLAIM III: DEFENDANTS' COERCED WAIVERS VIOLATE FEDERAL LAW

113.

As discussed above, Indian parents have rights under both the Due Process Clause

and ICWA in foster care proceedings. Unfortunately, for at least the past three years,

Defendant Davis and other Seventh Circuit judges have pursued a policy, practice, and

custom of coercing Indian parents into waiving many of those rights, which is exactly

what occurred to Plaintiffs Walking Eagle, Pappan, and Young.

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114.

The presiding judge tells parents at the outset of each 48-hour hearing that if

they agree to "work with" DSS, the court will enter an order that could result in a return

of their children by DSS without further court involvement. See Exhibit 7 (transcript of

proceedings of Plaintiff Lisa Young) at 5.

115.

Enticed by the prospect of an early reunification with their children, most parents

agree to "work with" DSS and waive their rights under state and federal law to adequate

notice and a timely hearing. Perhaps this process has resulted in a reunification within

weeks for a few families (although the Plaintiffs are unaware of any examples) but it

definitely has not had that effect for Indian parents known to the Plaintiffs.

116.

Moreover, the court never provides Indian parents with the information they need

to make an informed decision, and the entire process is inherently coercive because the

parents have already been deprived of their children.

117.

In nearly all 48-hour hearings, for instance, the following information is not

provided to parents prior to their being asked to waive their rights to a prompt and

meaningful hearing: (a) the parents are not provided with adequate notice of the

allegations against them and are not shown the petition for temporary custody or the

IeWA affidavit; (b) the parents are not told that by agreeing to "work with" DSS, this

will authorize DSS to retain custody of their children for at least another sixty days,

during which time the parents will be allowed to visit their children only when and if

DSS permits it; (c) the parents are not told that if they opt not to "work with" DSS, they

may get a hearing more quickly; and (d) the parents are not told that if they decline, DSS

has a duty under both state and federal law to work with the parents (and engage in active

efforts to reunite the family) anyway.

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118.

Thus, Indian parents who agree to "work with" DSS place themselves in a state of

suspended animation during which time DSS has full control over their children, has no

duty to file a petition that would trigger formal process, and has no deadline for working

with the family. Additionally, even those parents who agree to "work with" DSS are still

saddled with a court order that finds as a matter of law that continued custody of the child

by the parents "is likely to result in serious emotional or physical damage to the child"

and that DSS "has provided reasonable efforts to prevent the removal of the children

from the home" even though no evidence was submitted at the 48-hour hearing on those

issues. See Exhibits 2 and 7 (Temporary Custody Orders for Plaintiffs Pappan and

Young, respectively).

119.

The waivers obtained by the Defendants in their 48-hour hearings are invalid

because the Defendants fail to provide parents with adequate notice of the facts, of their

rights under federal and state law, and of the consequences of their consent. See In re

Esther, 248 P.3d 863, 876 (N.M. 2011) (holding in circumstances similar to those here

that a purported waiver by a parent during an ICWA custody hearing was invalid);

Rivera, 696 F.2d at 1026 (holding that a parent's waiver of her rights at a custody hearing

was invalid because she was not informed "of the legal implications of her decision").

120.

'''[CJourts indulge every reasonable presumption against waiver' of fundamental

constitutional rights." Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal citation

omitted). This rule applies to parents who are being asked to waive their constitutional

rights to a meaningful hearing at a meaningful time following the removal of their

children from the home by state officials.

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121.

Moreover, even when Indian parents agree to "work with" DSS, DSS rarely works

with Indian parents in any meaningful manner. The court's inducement is a cruel hoax.

122.

For instance, about the only "work" that DSS performed for Plaintiffs Walking

Eagle, Pappan, and Young was to arrange weekly visitation with their children. DSS

made no effort to provide any counseling to the family or information on treatment

programs. DSS did not assist Ms. Young in obtaining housing in a domestic violence

shelter, even though she needed it. DSS did not tell any of the women what they should

do, or what needed to be improved, in order to regain custody of their children. Ms.

Walking Eagle telephoned the DSS office several times seeking assistance, left a message

each time, and no one returned her calls.

123.

In fact, DSS made matters worse. To illustrate, DSS instructed all the women not

to discuss their cases with their children or explain why the children had been taken

away. This exacerbated the situation immensely and made it impossible for the mothers

to address their children's questions and concerns about the future.

124.

In one early visit between Ms. Walking Eagle and her son Tristan (age 3), Tristan

began to cry. The DSS worker told Tristan that if he continued to cry, he would not be

allowed to meet with his mother anymore. Thereafter, Tristan fought back tears

whenever he saw his mother. DSS prohibited frank and emotional exchanges between

Ms. Walking Eagle and her son.

125.

When Ms. Young asked her DSS worker if she could visit her children more than

once a week, the worker told Ms. Young that she did not have the time to arrange

additional meetings, even though additional meetings would help the family.

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126.

Ms. Walking Eagle had a two-day trial sixty days after DSS removed her

children. DSS strenuously argued that the children should not be returned to Ms.

Walking Eagle. The court rejected those claims and returned the children to Ms. Walking

Eagle. Had that hearing been held sooner, the children would have been returned sooner.

127.

All three named Plaintiffs state that the forced removal of their children caused

their children to suffer emotional and psychological harm, including (to varying degrees)

separation anxiety, bed-wetting, suicidal tendencies, emotional swings, and fear of being

separated from their parents. To this day, Ms. Pappan's daughter, who was 3 years old at

the time she was removed from the family, often wakes up in the middle of the night and

goes to her mother's bedroom just to make sure she is there.

128.

Defendants Malsam-Rysdon and Van Hunnik have inadequately trained their

staff to work with Indian parents in a meaningful way. They have also failed to commit

the staff and resources necessary to insure that Indian families will be reunited at the

earliest reasonable opportunity.

129.

Defendants' policy, practice, and custom of keeping Indian parents in the dark

about the allegations against them, their right to a meaningful hearing at a meaningful

time, and the consequences of their waivers, and then proceeding to deny those parents of

their rights under the Due Process Clause and ICWA after obtaining waivers from them,

violates the rights of Indian parents under federal law and causes them to suffer

irreparable injury. Relief is sought pursuant to 42 U.S.C. § 1983.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that this Court will:

1. Assume jurisdiction over this matter;

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF· 37

Case 5:13-cv-05020-JLV Document 1 Filed 03/21/13 Page 38 of 39 PageID #: 38
2. Certify this action as a class action pursuant to F.R.Civ.P. Rule 23(a), (b)(2), with the class consisting of all Indian parents and custodians who are members of federally recognized Indian tribes who reside with their Indian children in Pennington County, South Dakota; 3. Issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 that declares as a matter oflaw that (a) Defendants' policy, practice, and custom of refusing and failing to provide Indian families and Indian tribes with adequate notice and a meaningful hearing at a meaningful time following the removal of Indian children from their homes by state officials violates the Due Process Clause, (b) Defendants' policy, practice, and custom of refusing and failing to provide Indian families and Indian tribes with adequate notice and a meaningful hearing at a meaningful time following the removal of Indian children from their homes by state officials violates the Indian Child Welfare Act, and (c) Defendants' policy, practice, and custom of coercing Indian parents into waiving their rights to adequate notice and a meaningful hearing at a meaningful time violates the Due Process Clause and the Indian Child Welfare Act; 4. Issue preliminary and permanent injunctive relief pursuant to F.R.Civ.P. Rule 65, enjoining the Defendants1 and all persons in concert with them, and their successors in office, from (a) failing and refusing to provide Indian parents and Indian tribes with adequate notice and a meaningful hearing at a meaningful time following the removal of Indian children from their homes by state officials in a manner consistent with the Due Process Clause, (b) failing and refusing to provide Indian parents and Indian tribes with adequate notice and a meaningful hearing at a meaningful time following the removal of
I Plaintiffs are aware that the Federal Courts Improvement Act of 1996, now codified as part of 42 U.S.C. § 1983, prohibits the issuance of injunctive relief against judicial officers such as Defendant Davis. Therefore, as to him, this Court may grant only declaratory relief.
CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 38

Case 5:13-cv-05020-JLV Document 1 Filed 03/21/13 Page 39 of 39 PageID #: 39 Indian children from their homes by state officials in a manner consistent with the Indian Child Welfare Act, and (c) from improperly coercing Indian parents into waiving their rights to adequate notice and a meaningful hearing at a meaningful time. 5. Grant plaintiffs their costs and attorneys' fees in this matter, and such other and further relief as to the Court may seem just and proper.
Attorneys for Plaintiffs
CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 39

 
 Case 5:13-cv-05020-JLV Document 69 Filed 01/28/14 Page 1 of 43 PageID #: 504

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

OGLALA SIOUX TRIBE and

)

ROSEBUD SIOUX TRIBE, as

)

parens patriae, to protect the rights )

of their tribal members; and

)

ROCHELLE WALKING EAGLE,

)

MADONNA PAPPAN, and

)

LISA YOUNG, individually and on

)

behalf of all other persons similarly )

situated,

)

)

Plaintiffs,

)

)

vs.

)

)

LUANN VAN HUNNIK;

)

MARK VARGO;

)

HON. JEFF DAVIS; and

)

KIM MALSAM-RYSDON, in their

)

official capacities,

)

)

Defendants.

)

CIV. 13-5020-JLV
ORDER DENYING MOTIONS TO DISMISS

INTRODUCTION Plaintiffs Oglala Sioux Tribe, Rosebud Sioux Tribe, Rochelle Walking

Eagle, Madonna Pappan and Lisa Young (collectively referred to as “plaintiffs”)

filed a complaint against defendants Luann Van Hunnik, Mark Vargo, Hon. Jeff

Davis and Kim Malsam-Rysdon (collectively referred to as “defendants”) in their

official capacities. (Docket 1). The complaint asserts defendants’ policies,

practices and procedures relating to the removal of Native American children

from their homes during 48-hour hearings violate the Fourteenth Amendment’s

Due Process Clause and the Indian Child Welfare Act (ICWA). Id. Specifically,

plaintiffs contend the defendants’ policies, practices and customs “(1) remov[e] Indian children from their homes without affording them, their parents, or

Case 5:13-cv-05020-JLV Document 69 Filed 01/28/14 Page 2 of 43 PageID #: 505
their tribe a timely and adequate hearing as required by the Due Process Clause, (2) remov[e] Indian children from their homes without affording them, their parents, or their tribe a timely and adequate hearing as required by the Indian Child Welfare Act, and (3) remove Indian children from their homes without affording them, their parents, or their tribe a timely and adequate hearing and then coercing the parents into waiving their rights under the Due Process Clause and Indian Child Welfare Act to such a hearing.” Id. at p. 3.
Pending before the court are motions to dismiss the complaint by all defendants.1 (Dockets 33, 37 & 39). Defendants contend (1) the court should not entertain this action under the Younger2 and Rooker-Felderman3 abstention doctrines; (2) plaintiffs failed to exhaust their state court remedies; (3) plaintiffs lack standing; (4) plaintiffs have failed to state a claim upon which relief can be granted; and (5) plaintiffs’ ICWA claims cannot be vindicated under 42 U.S.C. § 1983. (Docket 34). Based on the court’s analysis, the defendants’ motions to dismiss are denied.
1In addition to filing their own motions to dismiss, Kim Malsam-Rysdon, Luann Van Hunnik, and Mark Vargo joined in Judge Davis’ motion to dismiss. (Dockets 36 & 39).
2Younger v. Harris, 401 U.S. 37 (1971). 3D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983) and Rooker v. Fid. Trust Co., 263 U.S. 413 (1923).
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DISCUSSION A. Younger Abstention Doctrine
“Under Younger v. Harris, . . . federal courts should abstain from exercising jurisdiction in cases where equitable relief would interfere with pending state proceedings in a way that offends principles of comity and federalism.” Aaron v. Target Corp., 357 F.3d 768, 774 (8th Cir. 2004). The Supreme Court of the United States recently clarified the limited applicability of the Younger abstention doctrine in Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013).4 The Supreme Court reversed the United States Court of Appeals for the Eighth Circuit’s decision applying the Younger doctrine, held the Eighth Circuit’s criteria for use of Younger abstention was overly permissible, and adopted a more restrictive test for application of the Younger doctrine. Sprint, 134 S. Ct. at 591. The Supreme Court held Younger abstention applies in only three categories of cases:
First, Younger preclude[s] federal intrusion into ongoing state criminal prosecutions. Second, certain civil enforcement proceedings warrant[ ] abstention. Finally, federal courts refrain[ ] from interfering with pending civil proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions. Id. at 591 (citations omitted).
4Sprint was decided on December 10, 2013. Thereafter, the court ordered the parties to file supplemental briefing discussing the impact of Sprint on the issues pending in defendants’ motions to dismiss. (Docket 58). The parties subsequently filed additional briefing. (Dockets 59, 62, 63, 64 & 65).
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Prior to the decision in Sprint, the Younger abstention analysis in the Eighth Circuit revolved around the three-part test derived from the Supreme Court’s decision in Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432-37 (1982). In Middlesex, the court identified several factors that should lead to abstention under Younger: (1) the existence of an ongoing state judicial proceeding, (2) which implicates important state interests, and (3) which provides an adequate opportunity to raise constitutional challenges. Middlesex, 457 U.S. at 432. However, in Sprint, the Supreme Court clarified that these three factors are “not dispositve; they [are] instead, additional factors appropriately considered by the federal court before invoking Younger,” which itself sets forth the three limited circumstances discussed above in which abstention is appropriate. Sprint, 134 S. Ct. at 593 (emphasis in original).
Defendants assert abstention is appropriate under the second and third exceptional circumstances to federal jurisdiction discussed in Sprint as well as the factors established in Middlesex. (Dockets 34 at pp. 22-27; 59 at pp. 2-5). Plaintiffs argue none of the exceptional circumstances are applicable in this case.
1. Ongoing state criminal prosecution Although defendants do not expressly discuss the first exceptional circumstance, they imply in their argument that neglect proceedings could potentially result in the filing of a formal complaint or charge. (Docket 59 at p.
4

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2). In Sprint, the Court found abstention is appropriate under Younger to preclude intrusion into an ongoing state criminal prosecution. Sprint, 134 S. Ct. at 591 (emphasis added). Defendants point out Ms. Walking Eagle’s case is ongoing and “there continues to be ongoing judicial proceedings involving the temporary care and custody of Indian children in Pennington County who are part of plaintiffs’ proposed class of plaintiffs. (Docket 59 at p. 4).
In this case, plaintiffs are not challenging any ongoing state criminal proceeding. (Docket 1 at ¶¶ 3-4). In fact, plaintiffs point out numerous times in their briefing they are not challenging any prior or ongoing state proceeding. Rather, the remedies sought by plaintiffs would operate prospectively. (Docket 62 at p. 7, n.3). The court finds this first exceptional circumstance is not applicable because any order by this court would not intrude into an ongoing state criminal prosecution.
2. Civil enforcement proceedings Defendants assert abstention is appropriate under the holding in Sprint because this court is faced with an action which requests interference with state civil proceedings. (Docket 59 at p. 2). In Sprint, the Court clarified that abstention is appropriate in certain civil enforcement proceedings. Sprint, 134 S. Ct. at 591. The Court explained “[o]ur decisions applying Younger to instances of civil enforcement have generally concerned state proceedings ‘akin to a criminal prosecution’ in ‘important respects.’ ” Id. at 592. “Such
5

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enforcement actions are characteristically initiated to sanction the federal plaintiff, i.e., the party challenging the state action, for some wrongful act.” Id. (citations omitted). “In cases of this genre, a state actor is routinely a party to the state proceeding and often initiates the action.” Id.
Defendants contend Judge Davis is a named defendant in this litigation “because of his role in the enforcement of child welfare laws of the State of South Dakota and the Indian Child Welfare Act.” (Docket 59 at p. 2). Defendants assert “investigations are conducted when allegations of abuse and neglect are made to the State. . . . [and] [w]hen warranted, such investigations result in the filing of a formal complaint or charge.” Id. As a result, defendants assert this case meets the second factor established by the Supreme Court in Sprint and makes abstention appropriate.
In support of their position, defendants cite Moore v. Sims, 442 U.S. 415, 419-20 (1979), which involved an action commenced by parents against state actors alleging the removal of Moore’s children was a violation of the law.5
Plaintiffs argue this second exceptional circumstance does not apply because there is “no civil proceeding akin to a criminal proceeding . . . pending against any of the plaintiffs.” (Docket 62 at p. 7). Plaintiffs also argue Moore is factually distinguishable from this case because in Moore, plaintiffs sought a
5In Sprint, the Supreme Court also cited to Moore when discussing the applicability of abstention to civil enforcement proceedings. Sprint, 134 S. Ct. at 592.
6

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federal injunction halting the continuation of the state’s proceedings against them, whereas in this case, plaintiffs are only seeking prospective relief, which will not interfere with any ongoing case. Id.
The court finds the second exceptional circumstance is not applicable in this case. Defendants’ reliance on Moore is misplaced. In Moore, the issue was whether the district court should have exercised jurisdiction in light of the pending state proceedings. Moore, 442 U.S. at 418. Any ruling by the federal court in Moore would have necessarily impacted the underlying state proceeding. As a result, the Supreme Court held the district court should not have exercised jurisdiction. Id. Unlike the facts in Moore, plaintiffs in this case are not challenging any pending state court action. Neither are plaintiffs challenging any ruling by the state court. Rather, plaintiffs are only seeking prospective relief and, as such, any order by this court would not impact an ongoing state proceeding. The court finds abstention is not appropriate under the second exceptional circumstance.
3. Civil proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions
Defendants contend “this case qualifies under the third class of ‘exceptional circumstances’ ” because they assert “[p]laintiffs are seeking to dictate how state court proceedings are conducted by requiring the state courts to conduct a full adjudication at the 48-hour hearing of the emergency-removal
7

Case 5:13-cv-05020-JLV Document 69 Filed 01/28/14 Page 8 of 43 PageID #: 511
stage of the proceedings.” (Docket 59 at p. 3). Defendants claim plaintiffs’ “action seeks to interfere with the state courts’ ability to perform their judicial functions under state law.” Id. at pp. 4-5.
Plaintiffs argue “no orders or judgments issued by a state court will be rendered unenforceable or impaired if this Court grants the relief sought by the Plaintiffs.” (Docket 62 at p. 9). Plaintiffs reiterate they are challenging the policies and practices employed by state officials in connection with judicial proceedings and are not challenging prior state court judgments or orders. Id. Plaintiffs contend defendants’ arguments go to the merits of the case and should not be considered at this juncture of the proceedings. Id.
Plaintiffs’ complaint seeks prospective relief. Nothing in the complaint seeks to interfere with any ongoing state judicial function or challenges any previous state court ruling. At this stage of the litigation the court is not considering the merits of plaintiffs’ claims. Rather, the court is concerned with whether plaintiffs failed to state a claim upon which relief can be granted. Based on the complaint filed in this case, the court finds abstention under the third exceptional circumstance outlined in Sprint would be inappropriate.
4. Additional factors under Middlesex Having determined the three exceptional circumstances requiring abstention under Younger are not applicable in this case, it is not necessary for the court to consider the additional factors for abstention established in
8

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Middlesex. See Middlesex, 457 U.S. at 432. In Sprint, the Court held the Middlesex factors are “not dispositve; they [are] instead, additional factors appropriately considered by the federal court before invoking Younger.” Sprint, 134 S. Ct. at 593 (emphasis in original). Even considering the additional factors, the court finds abstention would be inappropriate.
a. Existence of an ongoing state judicial proceeding Defendants contend there are ongoing state proceedings involving Ms. Walking Eagle.6 (Docket 34 at p. 23). Furthermore, defendants contend “there is no question regarding the existence of ongoing state proceedings involving the temporary care and custody of Indian children in Pennington County and that there will continue to be such proceedings commenced even after the instigation of this litigation.” Id. Defendants contend these future hearings require the court to abstain from adjudicating plaintiffs’ federal claims. Id. Plaintiffs argue there is no pending state court litigation involving the plaintiffs which would be impacted by a ruling from this court on the merits of the complaint. (Docket 43 at p. 24). Plaintiffs assert Ms. Walking Eagle’s ongoing case is unrelated to the current action and does not deprive the court
6On January 27, 2014, counsel for plaintiffs notified the court that the Seventh Judicial Circuit Court dismissed a pending abuse and neglect case involving plaintiff Rochelle Walking Eagle and transferred jurisdiction to the Oglala Sioux Tribal Court pursuant to the provisions of the Indian Child Welfare Act. (Docket 68). A copy of the court’s order of dismissal was attached to the notice. (Docket 68-1).
9

Case 5:13-cv-05020-JLV Document 69 Filed 01/28/14 Page 10 of 43 PageID #: 513
of jurisdiction to decide the merits of this case. Id. Plaintiffs also contend the mere fact future 48-hour hearings are going to take place is not a reason for this court to abstain from adjudicating the claims. Id.
The court agrees 48-hour hearings involving Indian children will continue to occur during the pendency of this litigation, however, “the question presented under the first prong of the Younger inquiry is not simply whether there are ongoing state judicial proceedings, but whether the federal proceedings at issue will interfere with such state proceedings.” Olivia Y. ex rel. Johnson v. Barbour, 351 F. Supp. 2d 543, 567 (S.D. Miss. 2004). The court concludes the relief requested by plaintiffs will not interfere with ongoing state court proceedings. As set out in the complaint, plaintiffs allege defendants’ failures include removing Indian children from their homes without affording them, their parents, or their Tribe a timely and adequate hearing and coercing the parents into waiving their rights under the Due Process Clause and the Indian Child Welfare Act. (Docket 1 at p. 3).
If these claims are proven, an order by this court remedying such failures would not interfere with ongoing 48-hour hearings involving Indian children. Plaintiffs are not seeking to enjoin any state proceedings nor are they seeking to enjoin defendants from enforcing state law. Rather, the relief sought by plaintiffs would support the state’s interest involving the protection of Indian children in abuse and neglect cases.
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b. Important state interests The second factor requires this court to determine whether the issue implicates important state interests. Middlesex, 457 U.S. at 432. Defendants and plaintiffs agree the state has an important interest in protecting children from abuse and neglect. (Dockets 34 at p. 24 and 43 a p. 26). The second factor is satisfied.
c. Adequate opportunity to raise constitutional challenges The third factor requires this court to consider whether the state forum “afford[s] an adequate opportunity to raise . . . constitutional claims.” Middlesex, 457 U.S. at 432. Defendants contend the South Dakota Supreme Court resolved the issues plaintiffs allege in their complaint in Cheyenne River Sioux Tribe v. Davis, 822 N.W.2d 62 (S.D. 2012). (Docket 34 at p. 25). In that case, the South Dakota Supreme Court held ICWA was not applicable at the temporary or emergency custody stage. Id. Defendants argue this decision clearly demonstrates how plaintiffs’ constitutional claims can be presented to the state courts. Id. Plaintiffs contend, “[m]erely because a state forum is available does not mean the forum provides an adequate opportunity to (1) raise all the constitutional claims the plaintiff is raising in the federal suit, or (2) obtain a ruling in state court prior to suffering irreparable injury.” (Docket 43 at p. 26). Under Younger, abstention is not warranted where the state process being
11

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challenged is “flagrantly and patently violative of express constitutional prohibitions” or where “danger of irreparable loss is both great and immediate.” Younger, 401 U.S. at 53, 45 (citations omitted).
Plaintiffs’ complaint alleges the 48-hour hearings result in significant and irreparable loss, including the separation of parents from their children. (Docket 43 at pp. 26-27). In this case, plaintiffs are not parties to any pending suit in state court through which their constitutional challenges could be resolved. In addition, a state court challenge would preclude plaintiffs from raising all the claims in their federal complaint. See LaShawn A. v. Kelly, 990 F.2d 1319, 1323 (D.C. Cir. 1993) (finding “no pending judicial proceeding in the District of Columbia which could have served as an adequate forum for the class of children . . . to present its multifaceted request for broad-based injunctive relief based on the Constitution and on federal and local statutory law.”); Family Div. Trial Lawyers of Superior Court-D.C., Inc. v. Moultrie, 725 F.2d 695 (D.C. Cir. 1984) (finding abstention inappropriate because “plaintiffappellants were not parties to any pending suit in the local courts in which their constitutional challenges could naturally be resolved.”). The court finds abstention improper under the third factor.
Abstention under Younger, as clarified by the Supreme Court in Sprint, is not appropriate in this case. In addition, the court finds abstention is not
12

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appropriate under the additional factors established in Middlesex. The motions
to dismiss based on the Younger abstention doctrine are denied.
B. Rooker-Feldman Abstention Doctrine
Defendant Mark Vargo asserts this court lacks subject matter
jurisdiction under the Rooker-Feldman doctrine. (Docket 39 at pp. 6-7). The
Eighth Circuit described this doctrine as follows:
The Rooker-Feldman doctrine forecloses not only straightforward appeals but also more indirect attempts by federal plaintiffs to undermine state court decisions. Thus, a corollary to the basic rule against reviewing judgments prohibits federal district courts from exercising jurisdiction over general constitutional claims that are “inextricably intertwined” with specific claims already adjudicated in state court. A general federal claim is inextricably intertwined with a state court judgment “if the federal claim succeeds only to the extent that the state court wrongly decided the issue before it.” In such cases, “where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceedings as, in substance, anything other than a prohibited appeal of the state-court judgment.” The state and federal claims need not be identical.
Lemonds v. St. Louis County, 222 F.3d 488, 492–93 (8th Cir. 2000) (internal
citations omitted).
Plaintiffs contend, and the court agrees, Mr. Vargo’s reliance on the
Rooker-Feldman doctrine is misplaced. “The Rooker-Feldman doctrine is
confined to cases . . . brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the federal district court
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proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 281 (2005). In this case, plaintiffs are not seeking review of the state court judgments in their cases or asking this court to review the merits of those cases. Rather, plaintiffs are requesting the court review the alleged inadequacies of the procedures employed during 48-hour hearings. If plaintiffs are successful in their claims, any order by this court would apply prospectively and would not impact prior state court rulings. This action is not “inextricably intertwined” with the state court judgments against the plaintiffs. See Lemonds, 222 F.3d at 492-93. The court finds the Rooker-Feldman doctrine does not deprive the court of subject matter jurisdiction. C. Standing
Defendants contend the Oglala Sioux Tribe and Rosebud Sioux Tribe lack standing to bring this action. “In every federal case, the party bringing the suit must establish standing to prosecute the action.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Id. (citing Warth v. Seldin, 422 U.S. 490, 498 (1975). The doctrine of “standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To satisfy the case-or-controversy requirement, “a
14

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plaintiff must, generally speaking, demonstrate that he has suffered injury in fact, that the injury is fairly traceable to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.” Bennett v. Spear, 520 U.S. 154, 162 (1997) (internal quotations omitted).
The complaint alleges: The Tribes bring this action as parens patriae to vindicate rights afforded to their members by the Due Process Clause of the Fourteenth Amendment and by ICWA. The Tribes and their members have a close affiliation, indeed kinship, with respect to the rights and interests at stake in this litigation. The future and well-being of the Tribes is inextricably linked to the health, welfare, and family integrity of their members.
(Docket 1 at p. 4). Defendants contend the only section of ICWA that applies to emergency
custody proceedings is § 1922. (Docket 34 at p. 29). Defendants assert because § 1922 “does not confer any discernible rights to the tribes, the Oglala Sioux Tribe and Rosebud Sioux Tribe cannot demonstrate any injury capable of redress . . . .” Id. Defendants argue the Tribes “may not sue under § 1983 to vindicate a sovereign right” because the Tribes are not “persons” under the Act. Id.
Defendants suggest the only way the Tribes can “have standing is to vicariously assert the rights afforded to their members.” Id. at p. 30. Defendants contend the Tribes cannot assert the doctrine of parens patriae to satisfy the justiciability requirement because they are not representing the
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interest of “all” Tribal members, “but only those members who are parents and custodians of Indian children.” Id.
In order for the Tribes to have standing parens patriae, the Tribes must show the claims “are asserted on behalf of all of the sovereign’s citizens. The parens patriae doctrine cannot be used to confer standing on the Tribe to assert the rights of a dozen or so members of the Tribe.” United States v. Santee Sioux Tribe of Nebraska, 254 F.3d 728, 734 (8th Cir. 2001) (citations omitted, emphasis in original).
Plaintiffs claim this requirement is met, arguing the Tribes “filed this lawsuit because they are fighting for their survival, not just fighting for the families who appear in Defendants’ 48-hour hearings.” (Docket 43 at p. 32). In Dep’t of Health and Social Servs. v. Native Village of Curyung, 151 P.3d 388, 402 (Alaska 2006), the court held the Village could bring the suit parens patriae to “prevent future violations of the Adoption Act and the Indian Child Welfare Act.” The court found “the well-being of individual families and children [were] inextricably bound up with the villages’ ability to maintain their integrity, which ‘is something that can occur only through the children of the Village.” Id.
The purpose of ICWA, as declared by Congress, is to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . .” 25 U.S.C. § 1902. Congress specifically found “that
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there is no resource that is more vital to the continued existence and integrity of the Indian tribes than their children . . . .” 25 U.S.C. § 1901(3).
Given the Congressionally established purposes of the Indian Child Welfare Act, the court finds the Tribes have parens patriae standing to bring this action and to litigate the alleged violations of the Due Process Clause and ICWA. The focus of this litigation is not to redress past injuries to plaintiffs; rather, it is to prevent future violations of the Due Process Clause of the Fourteenth Amendment and ICWA. The court finds this action is inextricably bound up with the Tribes’ ability to maintain their integrity and “promote the stability and security of the Indian tribes and families.” 25 U.S.C. § 1902. The motions to dismiss for lack of standing are denied. D. Administrative Remedies
Defendants move for dismissal based on plaintiffs’ failure to exhaust their state law remedies. (Docket 34 at pp. 27-29). Defendants contend the Eighth Circuit requires “a litigant asserting a deprivation of procedural due process” to exhaust state law remedies “before such an allegation states a claim under § 1983.” Id. at pp. 27-28 (quoting Wax’n Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th Cir. 2000).
Defendants attempt to apply Wax’n Works too expansively. See Wax’n Works, 213 F.3d at 1019 (finding “a litigant asserting a deprivation of [a property right violation of ] procedural due process must exhaust state
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remedies before such an allegation states a claim under § 1983.”). The Eighth Circuit limited the holding in Wax’n Works to suits seeking redress for loss of a property interest. See Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009).
“A 1983 plaintiff . . . is not required to exhaust state judicial or administrative remedies before proceeding in federal court.” Bressman v. Farrier, 900 F.2d 1305, 1310 (8th Cir. 1990) (citing Patsy v. Florida Bd. of Regents, 457 U.S. 496, 500-07 (1982)). The Eighth Circuit recognized an exception to the general rule. Exhaustion of state remedies prior to bringing a § 1983 claim is not required.
The holding in Wax’n Works does not control the outcome in this case. The motions to dismiss for failure to exhaust state law remedies are denied on this basis. E. Motion to Dismiss Standard
Rule 12(b)(6) provides for dismissal if the plaintiffs fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In evaluating the defendants’ Rule 12(b)(6) motion, the court accepts as true all of the factual allegations contained in plaintiffs’ complaint and grants all reasonable inferences in favor of plaintiffs as the nonmoving party. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”) (citing Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). See
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also Crooks, 557 F.3d at 848 (the court must review “a Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting the facts alleged in the complaint as true and granting all reasonable inferences in favor of the plaintiff, the nonmoving party.”) (brackets omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679.
1. Whether the defendants are policymakers under § 1983 Liability for a government entity under 42 U.S.C. § 1983 can exist only where the challenged policy or practice is “made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). A policy maker is one who “speak[s] with final policymaking authority . . . concerning the action alleged to have caused the particular constitutional or statutory violation at issue,” that is one with “the power to make official policy on a particular issue.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989); see also Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987) (“In an officialcapacity suit, the plaintiff must prove more than that his constitutional rights
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were violated by the named individual defendant, for a governmental entity is liable under § 1983 only when the entity itself is a ‘moving force’ behind the violation. That is, the entity’s ‘policy or custom’ must have ‘caused’ the constitutional violation; there must be an ‘affirmative link’ or a ‘causal connection’ between the policy and the particular constitutional violation alleged.”).
An “official policy” involves a deliberate choice to follow a course of action made from among various alternatives by an official who has the final authority to establish governmental policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
a. Judge Davis Judge Davis asserts “[i]n order for the Court to sustain Plaintiffs’ Due Process claims, Plaintiffs’ must first make the threshold showing [he] is a ‘policymaker.’ ” (Docket 34 at p. 12). Judge Davis contends “the process involved in the 48-hour hearings is set by statute . . . [and he] is compelled by oath to follow the procedures set forth in those statutes.” Id. Plaintiffs say they are not challenging the procedures at 48-hour hearings which are prescribed by South Dakota statute. (Docket 43 at p. 20). Rather, plaintiffs claim Judge Davis has instituted six of his own policies, practices and customs for 48-hour hearings which violate the Due Process Clause and ICWA. (Docket 43 at pp. 3-4). These include: not allowing Indian
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parents to see the ICWA petition filed against them; not allowing the parents to see the affidavit supporting the petition; not allowing the parents to crossexamine the person who signed the affidavit; not permitting the parents to present evidence; placing Indian children in foster care for a minimum of 60 days without receiving any testimony from qualified experts related to “active efforts” being made to prevent the break-up of the family; and failing to take expert testimony that continued custody of the child by the Indian parent or custodian is likely to result in serious emotional or physical damage to the child. Id. at pp. 2-4.
Taking the allegations in the complaint as true, the court finds that Judge Davis is a policymaker.
b. Kim Malsam-Rysdon and Luann Van Hunnik Ms. Malsam-Rysdon is the Cabinet Secretary for the South Dakota Department of Social Services (SDDSS) and is responsible for the administration and functioning of the SDDSS. (Docket 38 at p. 1). Ms. Van Hunnik is a Regional Manager for Region 1 which is comprised of Pennington County. Id. at p. 2. As the Regional Manager, Ms. Van Hunnik oversees the Rapid City office for the Division of Child Protection Services and supervises Child Protection Supervisors within the region. Id. Ms. Malsam-Rysdon and Ms. Van Hunnik (hereinafter referred to as “DSS defendants”) contend they are not policymakers because “the process
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beginning at the 48-hour hearing juncture is fully within the control of the presiding judicial official” and SDDSS employees and officials “clearly have no control over a judicial official’s interpretation or application of applicable law.” Id. at p. 4. DSS defendants contend the complaint does “not allege that an unconstitutional ‘policy or custom’ of the State or South Dakota Department of Social Services was the ‘moving force’ behind the injuries.” Id. at p. 6. DSS defendants suggest the complaint does not identify any policy, practice or custom of DSS that “restricts the level of due process afforded at the 48 hour hearings.” Id. at p. 8.
Plaintiffs claim DSS defendants are “overlooking the scope of Plaintiffs’ allegations against them.” (Docket 44 at p. 5). Plaintiffs’ complaint alleges DSS has an independent obligation to provide Indian parents with copies of the petition for temporary custody and the ICWA affidavit prior to the 48-hour hearing. Id. Plaintiffs argue defendants’ failure to train their staff accordingly violates plaintiffs’ rights to due process. Id. Plaintiffs also allege “DSS defendants fail to take appropriate actions during and after the 48-hour hearing to satisfy their constitutional duty to ensure that Indian parents receive ‘an adequate post-deprivation hearing.’ ” Id. (emphasis in original). Plaintiffs argue the DSS defendants should do everything they reasonably can to ensure the parents receive a meaningful hearing at a meaningful time. Id. Instead of fulfilling these obligations, the complaint alleges DSS defendants
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“have a policy, practice, and custom of ratifying and acquiescing in the policy, practice, and custom of Judge Davis to deny Indian parents a meaningful hearing at a meaningful time.” Id. at pp. 5-6. The complaint also alleges DSS defendants failed to train their staff on how to seek and secure for Indian parents the federal rights to which those parents are entitled and, as a result, Indian parents suffer irreparable injury. (Docket 1 at ¶¶ 46 & 48).
Because neither Ms. Malsam-Rysdon nor Ms. Van Hunnik appear at the 48-hour proceedings personally, the claims made by plaintiffs relate to a “failure to train” other DSS employees whom they supervise. To survive a motion to dismiss on a “failure to train” claim, plaintiffs must show (1) the policymaker’s training practices were inadequate, (2) the policymaker was deliberately indifferent to the rights of the plaintiffs, and (3) the training deficiencies cause constitutional deprivation. Ulrich v. Pope Cnty., 715 F.3d 1054, 1061 (8th Cir. 2013).
At this point in the litigation, the court is “bound to accept as true, for purposes of [a Rule 12(b)(6)] motion, the facts alleged by the plaintiff[s].” Stephens v. Assoc. Dry Goods Corp., 805 F.2d 812, 814 (8th Cir. 1986). Plaintiffs allege “DSS is intimately involved in every aspect of temporary custody proceedings involving Indian children in Pennington County¯conducting the investigation, preparing the affidavit, attending the hearing, and controlling what happens to the child during the 60 days
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following the hearings¯and has primary responsibility during that entire time for both the physical and legal custody of the child.” (Docket 44 at p. 2).
Specifically, plaintiffs allege DSS defendants contribute to the plaintiffs’ injuries by failing to provide a copy of the petition and ICWA affidavit to Indian parents prior to the 48-hour hearing, by adopting the unconstitutional practices of the circuit court during 48-hour hearings, by failing to ensure Indian parents receive an adequate post-deprivation hearing, and by failing to properly work with Indian parents following the 48-hour hearings. These claims, if true, are sufficient to survive a Rule 12(b)(6) motion to dismiss and are cognizable under 42 U.S.C. § 1983. See Whisman ex rel. Whisman v. Rinehart, 119 F.3d 1303, 1310 (8th Cir. 1997) (state officials who remove children from their parents’ custody have a constitutional duty to ensure those parents receive an “adequate post-deprivation hearing”). These allegations, if true, would constitute a “moving force” behind the violations. The court finds Ms. Malsom-Rysdon and Ms. Van Hunnik are policymakers with regard to the allegation made in the complaint.
c. Mark Vargo Mark Vargo is the State’s Attorney for Pennington County. Mr. Vargo asserts plaintiffs’ complaint alleges few facts regarding what plaintiffs believe he does or does not do which violates plaintiffs’ rights. (Docket 40 at p. 2).
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Mr. Vargo contends he “has no ‘policies, practices, and customs’ of his own, but rather follows South Dakota statute regarding 48-hour hearings.” Id.
Plaintiffs’ complaint alleges Mr. Vargo has a policy, practice and custom of (1) not providing Indian parents with a copy of the petition or ICWA affidavit that forms the case against them either before or during the 48-hour hearing; (2) never seeks to introduce evidence to comply with the requirement of § 1912(d) and (e) of ICWA; (3) never seeks a meaningful hearing for at least sixty days and instead ratifies and acquiesces in the policy of Judge Davis; and (4) ignores ICWA’s § 1922 requirement that emergency placement of an Indian child terminate immediately when the imminent physical danger has been removed. (Dockets 45 at p. 2 & 1 at ¶¶ 42, 46-47, 94-95, 98, 101, 111). Plaintiffs assert there is no South Dakota law preventing Mr. Vargo from complying with the alleged requirements.
Mr. Vargo cites Slaven v. Engstrom, 710 F.3d 772 (8th Cir. 2013) in support of his position that he is merely following South Dakota law and lacks any policymaking authority regarding 48-hour hearings. (Docket 40 at pp. 34). However, Slaven is distinguishable from the facts alleged in plaintiffs’ complaint. Slaven was decided under the summary judgment standard. In this case, the standard is not whether Mr. Vargo is entitled to judgment as a matter of law; rather, the standard is whether, taking the facts alleged by plaintiffs as true, the complaint fails to state a claim for relief. Braden, 588
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F.3d at 594. In addition, the plaintiffs in Slaven were attempting to hold county officials liable for the non-discretionary duty of enforcing state law. Slaven, 710 F.3d at 781 (“The Slavens’ complaint essentially alleges that Minnesota law, and the state court judge’s application of that law—not an independent Hennepin County policy—caused the procedural due process violations.”) (emphasis in original). In this case, plaintiffs contend “all of the activities that [Mr.] Vargo is engaging in that allegedly violate Plaintiffs’ rights are discretionary activities that are not required by state law.” (Docket 45 at p. 4) (emphasis in original).
A policymaker must be “an official who is determined by state law to have the final authority to establish governmental policy” and who makes “a deliberate choice to follow a course of action made from among various alternatives.” Ware v. Jackson County, Mo., 150 F.3d 873, 880 (8th Cir. 1998) (quotation omitted). The facts as set forth in the complaint, which this court is bound to accept as true, are sufficient to support a finding that Mr. Vargo is a policymaker.
Mr. Vargo also asserts he is “entitled to absolute prosecutorial immunity from § 1983 suits when the attorney acts are within the scope of his prosecutorial duties.” (Docket 40 at p. 4). Plaintiffs contend “[p]rosecutorial immunity protects prosecutors only from suits for damages.” (Docket 45 at p. 4).
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The Supreme Court held “in initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages under § 1983.” Imbler v. Pachtman, 424 U.S. 409, 431 (1976). However, the Supreme Court’s holding in Imbler does not establish that prosecutors are immune from suit for declaratory or injunctive relief.
In Heartland Acad. Cmty. Church v. Waddle, 427 F.3d 525 (8th Cir. 2005), “[Michael] Waddle, as Chief Juvenile Officer for the Second Circuit of Missouri, effected the removal of 115 boarding students from Heartland Christian Academy.” Id. at 528. Heartland filed suit seeking “declaratory and injunctive relief against Waddle and others under 42 U.S.C. § 1983 for alleged violations of the First, Fourth, and Fourteenth Amendments.” Id. at 529. The district court “granted Heartland a permanent injunction and declaratory relief.” Id.
Waddle appealed the district court’s decision. On appeal, Waddle, citing a Ninth Circuit case, Coverdell v. Dep’t of Soc. & Health Servs., 834 F.2d 758, 763 (9th Cir. 1987), argued he was entitled to absolute immunity from civil suit because he was a child services worker. Id. at 530. Waddle argued his position as a child services worker was akin to a prosecutor. Heartland, 427 F.3d at 530-31. The Eighth Circuit expressed some skepticism “that the immunity afforded prosecutors for their work in bringing criminals to justice should be available to juvenile officers in civil removal proceedings that are
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unrelated to detaining juveniles for reasons of delinquency or their caretakers on criminal charges related to the care of the juveniles,” but did not reach the issue. Id. at 531.
The Eighth Circuit concluded the holding in Coverdell was “inapposite” because “[i]n Coverdell, the prosecutorial-immunity defense was raised in response to the plaintiff’s claim for damages, not in defense of the request for an injunction.” Id. The court found “Heartland [was] not seeking damages from Waddle nor to punish him for his past judgment in effecting the mass removal of student from HCA without notice or hearing. Instead, Heartland has sought and received only declaratory and prospective injunctive relief prohibiting Waddle, as juvenile officer, from acting in violation of the Constitution when and if he removes (or directs the removal of) children from Heartland facilities in the future.” Id. The court found Waddle was not entitled to absolute immunity and affirmed the decision of the district court. Id.
Mr. Vargo asserts the Eighth Circuit’s holding in Heartland is not applicable here because the court did not indicate the reasons for its holding. (Docket 50 at p. 16). This court disagrees with Mr. Vargo’s interpretation. The Eighth Circuit noted Heartland was not seeking damages or punishment of Waddle for his past behavior in removing children. Rather, it was to prevent constitutional violations going forward. This is precisely what plaintiffs’ complaint is seeking. Plaintiffs are not seeking money damages from Mr. Vargo
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nor are plaintiffs attempting to punish Mr. Vargo for the alleged constitutional violations which plaintiffs claim have already occurred. Plaintiffs’ complaint seeks to prevent future constitutional violations. The court finds Mr. Vargo is not entitled to prosecutorial immunity for prospective injunctive or declaratory relief.
This court is not alone in reaching that conclusion. The courts of appeal for the Eleventh Circuit and Fifth Circuit have held prosecutors are not immune from claims for injunctive relief. See Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000); Tarter v. Hury, 646 F.2d 1010, 1012 (5th Cir. 1981); see also VanHorn v. Nebraska State Racing Com’n., Civ. Nos. 4:03-cv-3336, 4:09cv-3378, 2006 WL 3408055, *1 (D. Neb. 2006) (finding the Eighth Circuit and Eleventh Circuit held “that not even prosecutors are immune from suit for injunctive relief under § 1983”) (citing Heartland, 427 F.3d at 530-31; Bolin, 225 F.3d at 1242).
In Watkins v. Garrett, Civ. No. 6:09-cv-6077, 2010 WL 2584287, *2 (W.D. Ark. 2010), the district court noted “[w]hile the Supreme Court has not held that prosecutors are immune from declaratory or injunctive relief, a plaintiff seeking such relief must show some substantial likelihood that the past conduct alleged to be illegal will recur.” Here, plaintiffs’ complaint makes this exact claim, the conduct alleged to be a violation of the Due Process
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Clause and ICWA will continue to recur at each 48-hour hearing involving
Indian parents. Mr. Vargo’s motion to dismiss on this basis is denied.
2. Claim II: 25 U.S.C. § 1922
Defendants contend plaintiffs’ claim for relief under 25 U.S.C. § 1922
should be dismissed for failure to state a claim. (Docket 34 at pp. 6-12).
Plaintiffs’ complaint asserts § 1922 provides both procedural and substantive
rights and that defendants are infringing upon those rights. (Docket 1).
25 U.S.C. § 1922 provides:
Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. The State authority, official, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.
25 U.S.C. § 1922.
Defendants claim § 1922 “defers emergency custody cases involving
Indian children . . . to the respective state law procedures.” (Docket 34 at p. 7).
In other words, defendants contend § 1922 “creates an exception to the
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important requirements of ICWA in these emergency situations to protect the best interests of the child.” Id. Under this interpretation, defendants assert “South Dakota statutory law is the source of the procedures governing emergency custody proceedings, not ICWA.” Id. at p. 8.
Plaintiffs agree in part with defendants’ interpretation of § 1922. (Docket 43 at p. 6). Plaintiffs agree the first sentence of § 1922 “authorizes state officials to employ state procedures to obtain emergency custody of the child.” Id. However, plaintiffs contend the second sentence of § 1922 requires these officials, once emergency custody of an Indian child is obtained, “to do two things for the protection of Indian parents and Indian children: insure that the emergency removal ‘terminates immediately’ when the child can be returned home safely, and ‘expeditiously initiate a child custody proceeding.’ ” Id. (emphasis in original). Defendants disagree, arguing the plaintiffs “focus only on a partial reading of the second sentence.” (Docket 48 at p. 4). Defendants point out the second sentence of § 1922 provides “the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate child custody proceedings subject to the provisions of this subchapter. . .” Id. (quoting 25 U.S.C. § 1922) (emphasis added).
Defendants also urge this court to consider holdings by six state courts which find that § 1922 is a statute of deferment. (Docket 34 at pp. 7-8).
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Defendants cite Cheyenne River Sioux Tribe v. Davis, 822 N.W.2d 62 (S.D. 2012); State ex rel. Juvenile Dep’t v. Charles, 688 P.2d 1354 (Or. App. 1984); D.E.D. v. State of Alaska, 704 P.2d 774, 779 (Alaska 1985); Matter of the Welfare of J.A.S., 488 N.W.2d 332 (Minn. Ct. App. 1992); In re S.B. v. Jeannie V., 30 Cal. Rptr. 3d 726 (Cal. App. 4th 2005); and State ex rel. Children, Youth and Families Dep’t v. Marlene C., 248 P.3d 863 (N.M. 2011). These cases are not binding on this court and, in fact, do not deal with the specific issue involved in this case. These cases stand for the proposition that the first sentence of § 1922 permits state procedures to be used in the initial removal of an Indian child. Plaintiffs agree with this principle.
The court finds under a plain reading of § 1922, the second sentence provides a substantive right to Indian parents. A finding the second sentence of § 1922 contains a substantive right is harmonious with the purposes of ICWA. Both plaintiffs and defendants agree Congress’s purpose in enacting ICWA was to curb the alarmingly high rate of removal of Indian children from Indian parents. (Dockets 43 at pp. 8-9 & 48 at p. 3). Congress declared “that it is the policy of this Nation to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families.” 25 U.S.C. § 1902. Congress found “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” 25 U.S.C. § 1901(3).
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Defendants’ argument that plaintiffs ignore a portion of the second sentence is overstated. The second sentence of § 1922 provides the “official or [state] agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary.” 25 U.S.C. § 1922 (emphasis added). A plain reading of the sentence contemplates that the emergency which existed when the child was taken from the home may no longer exist at the time of the 48-hour hearing or prior to placement.
The plaintiffs’ complaint alleges defendants violate their substantive duties under § 1922 during 48-hour hearings because there is never an “inquiry into whether the cause of the removal has been rectified, nor does the court direct DSS to pursue that inquiry after the hearing.” (Docket 1 at ¶ 95). Accepting as true the allegations in the complaint, plaintiffs set forth a valid claim for relief. Defendants’ motions to dismiss on this basis are denied.
3. 42 U.S.C. § 1983 Defendants contend even if plaintiffs’ ICWA based claims are valid, the plaintiffs nonetheless “cannot vindicate those rights through an action brought pursuant to 42 U.S.C. § 1983” because ICWA provides a comprehensive remedial framework. (Docket 34 at p. 11). Generally, statutes which create individual rights are presumptively enforceable by § 1983. See City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 120 (2005) (recognizing a
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rebuttable presumption that § 1983 provides an avenue for relief against a state actor who violates federal law); Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002) (“Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983.”); Blessing v. Freestone, 520 U.S. 329, 341 (1997) (noting if a plaintiff demonstrates a federal statute creates an individual right, a rebuttable presumption exists that the right is enforceable under § 1983). A defendant may defeat this presumption by demonstrating “that Congress shut the door to private enforcement either expressly, through ‘specific evidence from the statute itself,’ or ‘impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.’ ” Gonzaga Univ., 536 U.S. at 284 n. 4 (quotations omitted).
Defendants argue the sole remedy for claims based on alleged ICWA violations is provided in 25 U.S.C. § 1914, which permits an Indian child to petition the court to invalidate an action upon the showing of certain violations. See 25 U.S.C. § 1914. The Eighth Circuit has not considered whether § 1914 was intended to be a comprehensive remedial framework thereby making § 1983 inapplicable to claims based on alleged ICWA violations.
Plaintiffs argue “[n]othing in ICWA expressly displaces § 1983 as a vehicle to vindicate the rights that ICWA creates.” (Docket 43 at p. 11). The
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plaintiffs agree § 1914 of ICWA “established certain remedies that help tribes and families protect some of their rights,” but argue “courts have recognized that these remedies were not intended to eliminate the remedies under § 1983. . . .” Id. Other courts have found § 1914 does not eliminate other rights of action available pursuant to § 1983. In Curyung, the Supreme Court of Alaska found “that in passing § 1914, Congress attempted to provide a remedy that is not ordinarily available under § 1983.” Curyung, 151 P.3d at 411. The court found “Congress intended § 1914 not to displace § 1983, but rather to supplement it.” Id. at 412; see also Native Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548 (9th Cir. 1991). The court held allowing the § 1983 action to proceed “would not undermine or even affect” § 1914. Curyung, 151 P.3d at 412.
Defendants cite Doe v. Mann, 285 F. Supp. 2d 1229, 1240-41 (N.D. Cal. 2003), in support of their position that ICWA provides a comprehensive remedial framework for litigating alleged violations of ICWA. (Docket 34 a p. 11). On appeal, however, the Ninth Circuit Court of Appeals reaffirmed the holding in Venetie “that Congress intended to create a federal private right of action in tribes and individuals to seek a determination of their ICWA rights and obligations in federal district court . . . .” Doe v. Mann, 415 F.3d 1038, 1045 (9th Cir. 2005).
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The court finds § 1914 does not bar plaintiffs from seeking remedies under § 1983 for violations of ICWA to which § 1914 is inapplicable. Rather, § 1914 supplements the remedies available under § 1983. See Curyung, 151 P.3d at 412. Plaintiffs may seek a determination of their ICWA rights under § 1983 in federal court.
4. Claim I: Due Process Plaintiffs’ complaint alleges “[t]he policy, practice, and custom of the Defendants is to wait at least sixty days (and more often ninety days) before providing parents whose children have been removed from their custody with adequate notice, an opportunity to present evidence on their behalf, an opportunity to contest the allegations, and a written decision based on competent evidence.” (Docket 1 at ¶ 65). Plaintiffs contend this behavior violates the Due Process Clause. (Docket 1). “The due process clause ensures every individual subject to a deprivation ‘the opportunity to be heard at a meaningful time and in an meaningful manner.’ ” Swipies v. Kofka, 419 F.3d 709, 715 (8th Cir. 2005) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “To set forth a procedural due process violation, a plaintiff, first, must establish that his protected liberty or property interest is at stake. Second, the plaintiff must prove that the defendant deprives him of such an interest without due process of law.” Gordon v. Hansen, 168 F.3d 1109, 1114 (8th Cir. 1999) (citations omitted).
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In this case, plaintiffs’ complaint meets the first requirement. The Due Process Clause of the Fourteenth Amendment “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000). The defendants agree the “private interests of the individual Plaintiffs at stake here are no doubt fundamental.” (Docket 34 at p. 13).
Defendants contend the policies, practices, and customs challenged by plaintiffs do not deprive the plaintiffs of due process. Id. at pp. 13-14. In determining what due process requires, the court considers three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the functions involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Mathews, 424 U.S. at 335. As indicated above, the first factor is satisfied. The second factor requires this court to consider the risk the procedures used will lead to erroneous decisions. Id. Plaintiffs allege the procedures used by defendants do lead to erroneous decisions because at the 48-hour hearings the Indian parents are not permitted to see the petition filed against them, are not permitted to see the affidavit in support of that petition, are not permitted to cross-examine the person who signed the affidavit, and are not permitted to
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present evidence. (Docket 1 ¶ 42 & Docket 43 at p. 13). Under a motion to dismiss, the court accepts these allegations as true. Braden, 588 F.3d at 594.
Defendants contend the procedures established and used during 48hour hearings protect the due process rights of plaintiffs. Defendants compare South Dakota’s emergency custody procedures to a probable cause hearing in the criminal context. Defendants note, in the criminal context, after an arrest and arraignment, it is not unusual for a defendant to wait months before receiving a full trial on the merits. (Docket 34 at p. 15). While this may be factually correct, what is distinct is that defendants in a criminal case are often represented by counsel at an arraignment and are provided a copy of the information or indictment. In this case, the plaintiffs allege a copy of the petition is not provided to the parents nor is any supporting affidavit. Rather, Indian parents are left in the dark not knowing the allegations against them while suffering the consequence of losing custody of a child for 60 to 90 days.
One of the core purposes of the Due Process Clause is to provide individuals with notice of claims against them. In this case, taking the allegations in the complaint as true, the court finds the risk of erroneous deprivation high when Indian parents are not afforded the opportunity to know what the petition against them alleges. This deprivation is compounded if the child is taken from the parents without considering whether the emergency that permitted the child’s removal still exists.
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Mr. Vargo asserts there is no statute requiring him to provide the Indian parents with the evidence compiled against them at the 48-hour hearings. (Docket 50 at p. 3). Mr. Vargo correctly identifies the issue as whether the “Due Process Clause require[s] that the Petition for Temporary Custody Order and ICWA affidavit be given to the parents before or at the 48-hour hearing.” Id. The plaintiffs need not prove their claims at this point. The standard under Rule 12(b)(6) is whether, taking the facts alleged by plaintiffs as true, the complaint fails to state a claim on which relief can be granted. Braden, 588 F.3d at 594. Keeping Indian parents in the dark as to the allegations against them while removing a child from the home for 60 to 90 days certainly raises a due process issue.
The third factor requires the court to consider the fiscal and administrative burdens of providing Indian parents with a copy of the petition and ICWA affidavit at their 48-hour hearings. Eldridge, 424 U.S. at 335. The court finds the burden is inconsequential. The petition and affidavit are provided to the presiding judge and can at very little cost be provided to Indian parents.
Defendants argue permitting evidence to be admitted at the 48-hour hearing and allowing parents to cross-examine the state’s witnesses would be an undue burden because it would not provide the child’s attorney, the parent’s attorney, or the state’s attorney an opportunity to fully and fairly
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investigate and prepare their case. (Docket 34 at p. 15). Plaintiffs argue allowing parents the opportunity to present evidence and cross-examine witnesses is the same burden the defendants shoulder later in the process and merely providing the safeguards sooner is not an undue burden. (Docket 43 at p. 15). Assuming the allegations in the complaint are true, the court cannot say that providing these safeguards sooner imposes an undue administrative or financial burden on defendants. Fundamental rights are at issue in the 48hour hearings. If the allegations in the complaint are true, under the current procedures, Indian parents are required to wait 60 days or longer before being given the opportunity to present evidence and cross-examine witnesses in an effort to return their children to their care or the care of an Indian custodian. At that point, the deprivation of liberty has occurred. The court finds the allegations in the complaint, taken as true, establish a claim for a violation of plaintiffs’ due process rights.
5. Claim III: Coercion Plaintiffs’ complaint alleges Judge Davis and other “Seventh Circuit judges have pursued a policy, practice, and custom of coercing Indian parents into waiving” their rights under both the Due Process Clause and ICWA. (Docket 1 at ¶ 113). Plaintiffs claim the “presiding judge tells parents at the outset of each 48-hour hearing that if they agree to ‘work with’ DSS, the court will enter an order that could result in a return of their children by DSS
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without further court involvement.” Id. at ¶ 114. Plaintiffs claim many parents
are “[e]nticed by the prospect of an early reunification” and agree to “ ‘work
with’ DSS and waive their rights under the state and federal law to adequate
notice and timely hearing.” Id. at ¶ 115. Plaintiffs allege the presiding judge
fails to provide important information to parents prior to asking the parents to
waive their rights, including:
(a) the parents are not provided with adequate notice of the allegations against them and are not shown the petition for temporary custody or the ICWA affidavit; (b) the parents are not told that by agreeing to “work with” DSS, this will authorize DSS to retain custody of their children for at least another sixty days, during which time the parents will be allowed to visit their children only when and if DSS permits it; (c) the parents are not told that if they opt not to “work with” DSS, they may get a hearing more quickly; and (d) the parents are not told that if they decline, DSS has a duty under both state and federal law to work with the parents (and engage in active efforts to reunite the family) anyway.
Id. at ¶ 117 (emphasis in original).
Plaintiffs contend the other defendants acquiesce in this procedure.
Defendants note South Dakota law allows for this “informal” process “and,
therefore, it is an option that parents may choose to exercise.” (Docket 34 at p.
20) (citing SDCL § 26-7A-19(2)). Plaintiffs agree South Dakota law permits the
“informal” process, however, plaintiffs contend the “manner in which [Judge]
Davis (and the other Defendants) offer and apply it” is coercive. (Docket 43 at
p. 21). Plaintiffs claim the presiding judge fails to properly explain the
consequences of choosing the “informal” process. Id.
41

Case 5:13-cv-05020-JLV Document 69 Filed 01/28/14 Page 42 of 43 PageID #: 545
A party may waive constitutional rights only if the waiver is knowing and voluntary and the waiving party “understand[s] the significance and consequences of a particular decision and [if] the decision is uncoerced.” Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993) (citation omitted). “[C]ourts indulge every reasonable presumption against waiver of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (citation and internal quotation marks omitted). “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Id.
A failure to provide parents with the advisement of their fundamental rights or coercing a parent into waiving those rights would certainly amount to a constitutional violation. See Belinda K. v. Baldovinos, Civ. No. 10-02507, 2012 WL 13571, *7 (N.D. Cal. 2012) (finding plaintiff stated a claim for ineffective assistance of counsel where plaintiff’s counsel did not adequately explain the significance of waiving rights under ICWA); Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982) (finding no evidence in the record suggesting the party “intentionally and intelligently waived her due process rights.”).
At this point in the litigation, the court is “bound to accept as true, for purposes of [a Rule 12(b)(6)] motion, the facts alleged by the plaintiff[s].” Stephens v. Assoc. Dry Goods Corp., 805 F.2d 812, 814 (8th Cir. 1986). As a result, although defendants contend the procedures followed during a 48-hour hearing appropriately advise parents of their constitutional and statutory rights, the facts as set forth by plaintiffs allege the rights are not appropriately
42

Case 5:13-cv-05020-JLV Document 69 Filed 01/28/14 Page 43 of 43 PageID #: 546
explained and the proceedings are conducted in such a way that the parents are not voluntarily and knowingly waiving their rights. If the facts alleged by plaintiffs are true, plaintiffs’ complaint sets forth a claim upon which relief may be granted. Defendants’ motions to dismiss on this basis are denied.
Based on the court’s analysis and pursuant to the standards governing Rule 12(b)(6) motions, the court finds the plaintiffs’ complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim [for] relief that is plausible on its face.’ ” Braden, 588 F.3d at 594 (“quoting Iqbal, 556 U.S. at 663). Accordingly, it is hereby
ORDERED that defendant Judge Jeff Davis’ motion to dismiss (Docket 33) is denied.
IT IS FURTHER ORDERED that defendants Kim Malsam-Rysdon’s and Luann Van Hunnik’s motions to dismiss (Dockets 36 & 37) are denied.
IT IS FURTHER ORDERED that defendant Mark Vargo’s motion to dismiss (Docket 39) is denied.
Dated January 28, 2014. BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN CHIEF JUDGE
43

 
 Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 1 of 15 PageID #: 547

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

OGLALA SIOUX TRIBE and

)

ROSEBUD SIOUX TRIBE, as

)

parens patriae, to protect the rights )

of their tribal members; and

)

ROCHELLE WALKING EAGLE,

)

MADONNA PAPPAN, and

)

LISA YOUNG, individually and on

)

behalf of all other persons similarly )

situated,

)

)

Plaintiffs,

)

)

vs.

)

)

LUANN VAN HUNNIK;

)

MARK VARGO;

)

HON. JEFF DAVIS; and

)

KIM MALSAM-RYSDON, in their

)

official capacities,

)

)

Defendants.

)

CIV. 13-5020-JLV
ORDER GRANTING CLASS CERTIFICATION

INTRODUCTION

Pending before the court is a motion for class certification filed by

plaintiffs. (Docket 24). Plaintiffs seek to certify this suit as a class action

pursuant to Fed. R. Civ. P. 23(a) and (b)(2). Id. Defendants oppose the motion.

(Dockets 28, 29, & 30 ). For the reasons stated below, the court grants

plaintiffs’ motion for class certification.

FACTS AND PROCEDURAL HISTORY

Plaintiffs Oglala Sioux Tribe, Rosebud Sioux Tribe, Rochelle Walking

Eagle, Madonna Pappan, and Lisa Young filed a complaint against defendants

Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 2 of 15 PageID #: 548
Luann Van Hunnik, Mark Vargo, Hon. Jeff Davis, and Kim Malsam-Rysdon in their official capacities. (Docket 1). The complaint asserts defendants’ policies, practices and procedures relating to the removal of Native American children from their homes during 48-hour hearings violate the Fourteenth Amendment’s Due Process Clause and the Indian Child Welfare Act (ICWA). Id. Specifically, plaintiffs contend defendants’ “policies, practices, and customs . . . (1) remov[e] Indian children from their homes without affording them, their parents, or their tribe a timely and adequate hearing as required by the Due Process Clause, (2) remov[e] Indian children from their homes without affording them, their parents, or their tribe a timely and adequate hearing as required by the Indian Child Welfare Act, and (3) remov[e] Indian children from their homes without affording them, their parents, or their tribe a timely and adequate hearing and then coerce the parents into waiving their rights under the Due Process Clause and Indian Child Welfare Act to such a hearing.” Id. at p. 3.
DISCUSSION In a class action, “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members[.]” Fed. R. Civ. P. 23(a). A court may certify a class action only if all of the following requirements are met: (1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the class;
2

Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 3 of 15 PageID #: 549
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Id. The four prerequisites for class certification can be referred to as (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Paxton v. Union National Bank, 688 F.2d 552, 559 (8th Cir. 1982). “An action may be maintained as a class action only if all four prerequisites of Rule 23(a) are satisfied and, in addition, one of the three subsections of Rule 23(b) is met.” Pickett v. IBP, 197 F.R.D. 510, 513 (M.D. Al. 2000).
“When determining whether to grant class certification, the question is not whether the plaintiffs will ultimately prevail on the merits, but rather whether the plaintiffs have met the requirements of Rule 23(a).” Perez-Benites v. Candy Brand, LLC, 267 F.R.D. 242, 246 (W.D. Ark. 2010) (citing Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178 (1974)).
As the party seeking class certification, plaintiffs bear the burden of demonstrating all prerequisites of Rule 23 are met. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). The district court has broad discretion to decide whether certification is appropriate, and its decision will be reversed only for abuse of discretion. Rattray v. Woodbury County, IA, 614 F.3d 831, 835 (8th Cir. 2010).
3

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Defendants initially argue plaintiffs’ motion for class certification is premature and the definition of the class is overly broad, vague and ambiguous. (Docket 28 at pp. 2-5). Defendants also argue plaintiffs do not meet the Rule 23 requirements for class certification. Id. at pp. 5-13. 1. Whether plaintiffs’ motion is premature
Defendants argue plaintiffs’ motion for class certification is premature because “[t]here are a number of jurisdictional requirements which have not been met” as discussed in their motions to dismiss. (Docket 28 at p. 2). The court entered its order denying defendants’ motions to dismiss so this argument is moot. Defendants also contend plaintiffs’ motion is “premature because discovery has not yet occurred” and argue “the Court does not have the materials necessary to determine whether Plaintiffs have met their burden under Rule 23.” Id. at pp. 2-3. Defendants suggest it is “disingenuous of Plaintiffs[] to simultaneously claim both that expedited discovery is necessary to prove their claims, and that they have met their burden for class certification, under Rule 23, on a bare record.”1 Id. at p. 3 (emphasis in original).
1As noted by plaintiffs, defendants opposed plaintiffs’ motion for expedited discovery in part on the fact “plaintiffs [had] not yet moved to certify the class.” (Docket 41 at p. 7) (citing Docket 18 at p. 10). Defendants argued “[w]ithout . . . class certification, it is impossible to determine the proper scope of discovery to be conducted.” (Docket 18 at p. 10). Defendants’ argument here conflicts with defendants’ earlier position.
4

Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 5 of 15 PageID #: 551
Under Rule 23(c)(1)(A), certification of class should be done “[a]t an early practicable time after a person sues or is sued as a class representative.” Fed. R. Civ. P. 23(c)(1)(A). The Supreme Court recognized Rule 23 class certification may be “plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff’s claim.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). The pleadings contain sufficient information for this court to determine whether class certification is appropriate in this case. See In re Hartford Sales Practices Litig., 192 F.R.D. 592, 602 n. 9 (D. Minn. 1999) (noting “pleadings alone can conclusively show that the requirements of Rule 23 have been satisfied.”); Fogie v. Rent-A-Car, 867 F. Supp. 1398, 1402 (D. Minn. 1993) (finding class certification appropriate based on the “pleadings and a few affidavits regarding the Rule 23(a) requirements.”). Although defendants suggest additional discovery is necessary to determine whether class certification is appropriate, defendants do not identify what “materials” are missing from the court’s consideration of plaintiffs’ motion.
Defendants’ argument that plaintiffs’ motion for class certification is inappropriate because plaintiffs also filed a motion for expedited discovery is not persuasive. Plaintiffs’ allegations in the 39-page complaint make it clear they are challenging the policies, practices and customs of defendants in relation to the 48-hour child removal hearings held in state court. Attached to
5

Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 6 of 15 PageID #: 552
plaintiffs’ complaint are two 48-hour hearing transcripts which plaintiffs assert are reflective of other 48-hour hearings. A Rule 23 determination may be based on the allegations in the complaint, and not whether plaintiffs will ultimately succeed on the merits of those allegations. See Perez-Benites, 267 F.R.D. at 246; United Steel, 593 F.3d 802, 809 (9th Cir. 2010) (“ ‘the possibility that a plaintiff will be unable to prove his allegations . . . is [not] a basis for declining to certify a class which apparently satisfies [Rule 23].’ ”) (quoting Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975)). Having reviewed the pleadings in this case, the court finds plaintiffs’ motion is not premature. 2. Whether plaintiffs’ class definition is ambiguous
Plaintiffs Walking Eagle, Pappan and Young seek to represent a class consisting of “all other members of federally recognized Indian tribes who reside in Pennington County, South Dakota[,] and who, like the plaintiffs, are parents or custodians of Indian children.” (Docket 24 at p. 2).
Defendants contend the proposed class is “ambiguous and lends itself to standing issues, including conflicts of interest.” (Docket 28 at p. 4). Defendants argue the proposed class definition “does not exclude parents and guardians of Indian children who are not eligible for enrollment in any federally recognized Indian tribe, and are therefore, not subject to 25 U.S.C. §§ 1901, et seq.” Id. Defendants also argue the “definition offered by Plaintiffs assumes that having a parent who is a member of a federally recognized tribe is
6

Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 7 of 15 PageID #: 553
sufficient to be considered an ‘Indian child.’ ” Id. Defendants claim the
proposed class definition “would inappropriately include parents whose
parental rights have been terminated, but who would nevertheless qualify as
an Indian parent biologically.” Id. at p. 5.
Defendants’ arguments regarding plaintiffs’ proposed class definition are
easily resolved by reference to the definitions of “Indian child,” “custodian,”
“Indian tribe,” and “parent” provided in 25 U.S.C. § 1903:
“Indian child” means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
“Indian custodian” means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.
“Indian tribe” means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of Title 43.
“Parent” means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established.
25 U.S.C. § 1903(4),(6),(8) & (9). Using these definitions, the court finds
plaintiffs’ class definition is not overly broad, vague or ambiguous.
7

Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 8 of 15 PageID #: 554
3. Numerosity The class, as defined by plaintiffs, includes the three named plaintiffs
and “all other members of federally recognized Indian tribes who reside in Pennington County, South Dakota[,] and who, like the plaintiffs, are parents or custodians of Indian children.” (Docket 24 at p. 2). According to the 2010 census, “there were 576 households in Pennington County in which members of the Oglala Sioux Tribe were raising children under the age of 18, 195 such households containing members of the Rosebud Sioux Tribe, and 57 Standing Rock Sioux households.” (Dockets 25 at p. 4 & 25-1). Based on the census, plaintiffs assert “the class would contain more than 800 adults using the very conservative assumption that none of these households contains more than one parent or custodian.” Id.
Defendants concede plaintiffs’ proposed class meets the requirements of numerosity. (Docket 28 at p. 6). The court finds the “class is numerous enough to make joinder impracticable.” Christina A. v. Bloomberg, 197 F.R.D. 664, 667 (D.S.D. 2000), see also Fed. R. Civ. P. 23(a)(1). 4. Commonality
Rule 23(a) requires “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). It, however, “does not require that every question of law or fact be common to every member of the class.” Paxton, 688 F.2d at 561. Rule 23(a)(2) may be satisfied “ ‘where the question of law linking the class members
8

Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 9 of 15 PageID #: 555
is substantially related to the resolution of the litigation even though the individuals are not identically situated.’ ” Id. (quotations omitted); see also Lambertz-Brinkman v. Reisch, No. CIV 07-3040, 2008 WL 4774895, * 2 (D.S.D. 2008) (Commonality “does not require that every question of law or fact be common to every member of the class.”).
Defendants argue the proposed class lacks commonality because each “[a]buse and neglect case[], particularly at the emergency custody stage, [is] an intensely fact-specific process.” (Docket 28 at p. 7). Plaintiffs assert the proposed class has at least eleven common questions of law which warrant certification, including whether “a parent who may lose custody of his or her child in one of Defendants’ 48-hour hearings have a right under the Due Process Clause to receive, prior to the hearing, a copy of the state’s petition for temporary custody.” (Docket 41 at p. 2).
Rule 23’s commonality element does not require an identical factual scenario among each proposed class member. Paxton, 688 F.2d at 561. In Paxton, the common question among the class was whether the defendant had discriminatory employment practices. Id. The fact each member of the class would be affected differently by the defendant’s policies did not preclude a finding of commonality. Id. In Lambertz-Brinkman, the issue was “whether the defendants ha[d] a policy or practice of denying to the inmates medication or treatment that [had] been prescribed by a physician.” Lambertz-Brinkman,
9

Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 10 of 15 PageID #: 556
2008 WL 4774895, *2 (D.S.D. 2008). The district court noted “[a]lthough each individual member of the class may have had different experiences with regard to medical and mental health care at the S.D. Women’s Prison, this does not defeat commonality as the legal question ‘linking the class member’–whether an illegal policy or practice exists–‘is substantially related to the resolution of the litigation.’ ” Id. (citing DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995)).
The named plaintiffs, on behalf of the proposed class, seek a declaration that defendants’ policies, practices or customs amount to or result in deprivations of their constitutional and statutory rights. Whether these policies, practices and customs violate plaintiffs’ procedural rights under the Fourteenth Amendment and ICWA is a common legal question across the proposed class. The fact each member of the class would be affected differently by the defendants’ policies does not preclude a finding of commonality. See Paxton, 688 F.2d at 561. This is sufficient to establish the commonality requirement of Rule 23(a)(2). See DeBoer, 64 F.3d at 1174. 5. Typicality
“The Eighth Circuit has interpreted typicality to mean that there are ‘other members of the class who have the same or similar grievances as the plaintiff.’ ” Christina A., 197 F.R.D. at 668 (quoting Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996)). Rule 23’s typicality requirement is
10

Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 11 of 15 PageID #: 557
not an onerous one. Paxton, 688 F.2d at 562. “Factual variations” in the claims of the plaintiffs will not preclude class certification “if the claim arises from the same event or course of conduct as the class claims and gives rise to the same legal or remedial theory.” Alpern, 84 F.3d at 1540. “The burden of demonstrating typicality is fairly easily met so long as other class members have claims similar to the named plaintiff.” DeBoer, 64 F.3d at 1174.
Defendants argue the proposed class lacks typicality because “Plaintiffs’ class definition does not even require that the putative plaintiff[s] have an interest in an emergency custody hearing in Pennington County, South Dakota. Nor for that matter does it explain how parents who will be subject to abuse and neglect proceedings in the future will be treated by comparison to parents who have already been through an abuse and neglect [proceeding] in the past.” (Docket 28 at pp. 8-9).
Despite defendants’ arguments, the possibility that underlying differences exist in each case is not a reason for denying class certification. See Alpern, 84 F.3d at 1540. The claims of the named plaintiffs are typical to those of the proposed class. All allege defendants engage in policies, practices and customs depriving them of constitutional and statutory rights to timely and adequate hearings and notice when the state removes Indian children from their homes. “The fact that each named Plaintiff has personally experienced a different combination of these [customs], policies and practices does not defeat
11

Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 12 of 15 PageID #: 558
the typicality of the claims because everyone in the class is subject to them.” Christina A., 197 F.R.D. at 668. The court finds the typicality requirement of Rule 23(a)(3) is satisfied. 6. Adequacy of representation
“ ‘The adequate representation inquiry involves questions of whether the plaintiffs’ counsel are qualified, experienced, and generally able to conduct the proposed litigation.’ ” Lambertz-Brinkman, 2008 WL 4774895, *3 (quoting Pickett, 197 F.R.D. at 514). “The Eighth Circuit has found that the focus of this requirement is whether: ‘(1) the class representatives have common interests with the members of the class, and (2) whether the class representatives will vigorously prosecute the interest of the class through qualified counsel.” Christina A., 197 F.R.D. at 670 (quoting Paxton, 688 F.2d at 562-63).
The court finds counsel for the named plaintiffs have demonstrated they are qualified and competent to conduct the litigation. Defendants do not argue to the contrary.
Defendants argue a conflict may arise between the class and one of the tribal plaintiffs because it is not unforeseeable that the tribal plaintiffs’ interest may differ from the individual plaintiffs’ interests. Rule 23(a)(4) relates to potential conflicts within the class itself. Plaintiffs Walking Eagle, Pappan and Young are not proposing to include the Oglala Sioux Tribe and the Rosebud
12

Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 13 of 15 PageID #: 559
Sioux Tribe as members of the class. The relevant question is whether conflicts will arise between the named plaintiffs and the proposed class. The plaintiffs in this case are seeking the same remedy. There are no individual claims. Rather, the interests of the named plaintiffs and the proposed class members are common and the court “does not foresee any real possibility of conflicts between the named Plaintiffs and the other members of the [proposed] class.” Christina A., 197 F.R.D. at p. 670. The court will not speculate in order to find potential conflicts. The court finds the adequacy of representation requirements of Rule 23(a)(4) are satisfied. 7. Rule 23(b) prerequisites
Where the requirements of Rule 23(a) are met, plaintiffs still must satisfy the requirements of Rule 23(b). Rule 23(b)(2) states:
A class action may be maintained if Rule 23(a) is satisfied and if: (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Fed. R. Civ. P. 23(b)(2). “A Rule 23(b) class is proper . . . where the only relief sought is declaratory and injunctive relief.” Lambertz-Brinkman, 2008 WL 4774895, *4 (citing In re St. Jude Medical, Inc., 425 F.3d 1116, 1121 (8th Cir. 2005)). In this case, the focus of plaintiffs’ complaint is whether defendants have pursued
13

Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 14 of 15 PageID #: 560
policies, practices and customs which violate their constitutional and statutory rights. If plaintiffs prove this claim, then each member of the class would be entitled to the same injunctive or declaratory relief. See id. The court finds the proposed class is cohesive and certification of the class under Rule 23(b)(2) is appropriate. See In re St. Jude, 425 F.3d at 1121 (noting class certification under Rule 23(b)(2) requires the claims be cohesive).
CONCLUSION In accord with the above discussion, it is hereby ORDERED that plaintiffs’ motion for class certification (Docket 24) is granted. IT IS FURTHER ORDERED that this action shall be maintained as a class action on behalf of the following class of plaintiffs:
Rochelle Walking Eagle, Madonna Pappan and Lisa Young and all other members of federally recognized Indian tribes who reside in Pennington County, South Dakota, and who, like plaintiffs, are parents or custodians of Indian children. The terms “Indian children”, “custodians,” “Indian tribes,” and “parents” shall be interpreted using the definitions provided in 25 U.S.C. § 1903. IT IS FURTHER ORDERED that class certification is granted for the purpose of litigating the following issues in this case: a. Whether defendants maintain policies, practices or
customs related to the removal of Indian children from their homes without affording them, their parents, custodians, or tribes a timely and
14

Case 5:13-cv-05020-JLV Document 70 Filed 01/28/14 Page 15 of 15 PageID #: 561
adequate hearing in violation of the Fourteenth Amendment’s Due Process Clause; b. Whether defendants maintain policies, practices or customs related to the removal of Indian children from their homes without affording them, their parents, custodians or tribes a timely and adequate hearing in violation of the Indian Child Welfare Act; and c. Whether defendants maintain policies, practices or customs which coerce parents or custodians into waiving their rights under the Fourteenth Amendment’s Due Process Clause and the Indian Child Welfare Act to such a hearing. IT IS FURTHER ORDERED that no notice to the class is required at this time. IT IS FURTHER ORDERED that Rochelle Walking Eagle, Madonna Pappan and Lisa Young are designated as class representatives. Dana Hanna, Stephen L. Pevar and Rachel E. Goodman are designated as class counsel. Dated January 28, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN CHIEF JUDGE
15

 
 Case 5:13-cv-05020-JLV Document 150 Filed 03/30/15 Page 1 of 45 PageID #: 3884

UNITED STATE S DISTRICT COURT DI STRICT OF SOUTH DAKOTA WE STERN DIVISION

OGLALA SIOUX TRIBE and RO SEBUD SIOUX TRIBE, as parens patriae, to protect the rights of their tribal members; MADONNA PAPPAN, and LI SA YOUNG, individually and on behalf of all other persons similarly situated,
Plaintiffs,
vs.
LUANN VAN HUNNIK; MARK VARGO; HON. JEFF DAVIS; and LYNNE A. VALENTI, in their official capacities,
Defendants.

CIV. 13-5020-JLV ORDER

"A cornerstone of Lakota culture can be summed up in the words family and kinship. Family is the backbone, the foundation of our culture. We are given substance, nurtured, and sustained by family."l
Joseph M. Marshall III, Sicangu Lakota (Rosebud)
"Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . . "2
Congress of the United States
1the lakota way, Penguin Group Inc., New York, 2001, p. 210. 225 U. S. C. § 1902.

Case 5:13-cv-05020-JLV Document 150 Filed 03/30/15 Page 2 of 45 PageID #: 3885

"This wholesale removal of Indian children from their homes prompted Congress to enact the [Indian Child Welfare Act], which establishes federal standards that govern state-court child custody proceedings involving Indian children. "3
Supreme Court of the United States
INTRODUCTION
The Honorable Jeff Davis is a judge of the Seventh Judicial Circuit, part of the South Dakota Unified Judicial System. Judge Davis is the presiding judge of the Seventh Circuit. He administers the court system for the Circuit and sets policies and procedures in his courtroom. His Seventh Circuit judicial colleagues follow Judge Davis' policies and procedures for the removal of Indian children from their parents'homes.
Judge Davis typically conducts hearings within 48 hours of an Indian child's removal from the parents'care. The hearings usually last less than five minutes.4 The removed Indian children often spend weeks or months in foster care away from their parents, Indian custodians and Tribes.
Mark Vargo is the elected States Attorney for Pennington County, South Dakota. His staff attorneys appear before Judge Davis and other Seventh Circuit judges in cases involving the removal of Indian children from their

3Adoptive

Couple

v.Baby Girl,

U.S. , __

__

133

S.

Ct.

2552,

2557

(2013)

(quoting Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32

(1989) (internal quotation marks omitted).

4 See, for example, transcripts 10-50, 10-177, 10-253, 11-480, 11-497, 12-191, 14-455 and 14-456.

2

Case 5:13-cv-05020-JLV Document 150 Filed 03/30/15 Page 3 of 45 PageID #: 3886
parents. Mr. Vargo has an obligation to follow federal and state law, to advocate
the State's position and to seek justice at all times.s These obligations are
independent from the judicial function. Mr. Vargo controls the policies and
procedures followed by his staff attorneys.
Lynne A. Valenti is the Secretary of the South Dakota Department of Social
Services ("D S S "). LuAnn Van Hunnik is the person in charge of D S S Child
Protection Services ("CP S ") for Pennington County, South Dakota. CP S
employees under policy guidance from and the supervision of Ms. Valenti and
Ms. Van Hunnik prepare a petition for temporary custody and sign an Indian
Child Welfare Act6 affidavit alleging an Indian child is at risk of serious injury if
the child remains in the parents'home.
The court granted parens patriae status to the Oglala Sioux Tribe and the
Rosebud Sioux Tribe. The court certified the individual plaintiffs, Madonna
5"The states attorney shall appear in all courts of his county and prosecute . . .on behalf of the state or his county all actions or proceedings, civil or criminal, in which the state or county is interested or a party." SDCL § 7-16-9. "Prosecutors have a special 'duty to seek justice, not merely to convict.' " Connick v. Thompson, __ U. S. , __ 131 S.Ct. 1350, 1362 (2011) (quoting ABA Standards for Criminal Justice 3-1.l (c) (2d ed. 1980) (other citation omitted). "The prosecutor is an independent administrator of justice. The primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth. This responsibility includes, but is not limited to, ensuring that the guilty are held accountable, that the innocent are protected from unwarranted harm, and that the rights of all participants, particularly victims of crime, are respected. " National District Attorneys Association, National Prosecution Standards, Third Edition, 1-1.1 (updated 2009).
625 U. S. C.§ 1901 et seq. ("ICWA ").
3

Case 5:13-cv-05020-JLV Document 150 Filed 03/30/15 Page 4 of 45 PageID #: 3887
Pappan and Lisa Young, as class representatives for all similarly situated Indian parents.7
Plaintiffs moved for partial summary judgment on the grounds defendants violate the Indian Child Welfare Act and the Due Process Clause in the removal of Indian children from their parents or Indian custodians. Plaintiffs seek only prospective declaratory and injunctive relief.8 Defendants vigorously oppose plaintiffs' motions for partial summary judgment.
The court finds that Judge Davis, States Attorney Vargo, Secretary Valenti and Ms. Van Hunnick developed and implemented policies and procedures for the removal of Indian children from their parents' custody in violation of the mandates of the Indian Child Welfare Act and in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
For the reasons stated below, plaintiffs' motions for partial summary judgment are granted.
THE INDIAN CHILD WELFARE ACT
Congressional findings to support the passage of IOWA included the following declarations:
[T]hat there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
1Dockets 69 at p.17 and 70 at pp. 14-15. sDocket 1 p.38 irir 3 & 4.
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[T]hat an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and [T]hat the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. 25 U.S.C. § 1901(3), (4) & (5). The Indian Child Welfare Act "establishes minimum Federal standards and procedural safeguards to protect Indian families when faced with chi�d custody proceedings against them in State agencies or courts."9 "TheIndian Child Welfare Act . . . was the product of rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. " Mississippi Band of Choctaw Indians, 490 U.S. at 32. Indian tribes have an interest in the custody of Indian children "which is distinct from but on parity with the interest of the parents " and which "finds no parallel in other ethnic cultures found in the United States. It is a relationship that many non-Indians find difficult to understand and that non-Indian courts are slow to recognize." Id. at 52. "[T]he purpose of the ICWA gives no reason to believe that Congress intended to rely on state law 9124 Congressional Record 38102 (1978) (remarks of Rep. Udall).
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for the definition of a critical term; quite the contrary. It is clear from the very text of theICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights ofIndian families andIndian communities vis-a-vis state authorities." Id. at 44-45.
Section 1912 ofICWA addresses the rights ofIndian parents during any court proceeding. "In any involuntary proceeding in a State court . . . the party seeking the foster care placement of .. .anIndian child shall notify the parent or Indian custodian .. . and the . . . tribe . . . of the pending proceedings . ..." 25 U.S.C. § 1912(a). In the event of indigency, Indian parents are entitled "fo court-appointed counsel in any removal . . . proceeding." Id. at § 1912(b). "Each party to a foster care placement .. . under State law involving anIndian child shall have the right to examine all reports and other documents filed with the court upon which any decision with respect to such action may be based." Id. at § 1912(c). "Any party seeking to effect a foster care placement of . ..an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the break-up of theIndian family and that these efforts have proved unsuccessful." Id. at § 1912(d). "No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent orIndian custodian is likely to result in serious emotional or physical damage to the child." Id.at § 1912(e). A
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"foster care placement " for purposes of ICWA "mean[s] any action removing an
Indian child from its parents or Indian custodian for temporary placement in a
foster home or institution . . . where the parent or Indian custodian cannot have
the child returned upon demand, but where parental rights have not been
terminated . . .." 25 U.S.C. § 1903(1)(i).
Section 1922 of ICWA states:
Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. The State authority, official, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.
25 U.S.C. § 1922.
THE DUE PROCESS CLAUSE
The Due Process Clause of the Fourteenth Amendment provides "[n]o State
shall . ..deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the
laws." U.S.C.A. Amend. XIV, section 1. "[T]he Due Process Clause of the
Fourteenth Amendment confers both substantive and procedural rights."
Albright v. Oliver, 510 U.S. 266, 272 (1994) (internal references omitted).
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"[T]he Amendment's Due Process Clause . . . guarantees more than fair process. . . . [it] also includes a substantive component that provides heightened protection against governmental interference with certain fundamental rights and liberty interests." Troxel v. Granville, 530 U.S. 57, 65 (2000) (internal citations and internal quotation marks omitted). "The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Id. at 66.
PROCEDURAL HISTORY
Plaintiffs filed this action asserting defendants' policies, practices and procedures relating to the removal ofNative American children from their homes during state court 48-hour hearings10 violate ICWA and the Due Process Clause of the Fourteenth Amendment. II (Docket 1). Defendants deny plaintiffs' claims. (Dockets 76, 80 & 81).
Plaintiffs filed two separate motions for partial summary judgment. (Dockets 108 & 110). Those motions will be identified as the "Section 1922
10SDCL § 26-7A-14 directs "no child may be held in temporary custody longer than forty-eight hours . . . excluding Saturdays, Sundays, and court holidays, unless a . ..petition has been filed . . . and the court orders longer custody during a noticed hearing . . . ." These proceedings are commonly referred to as a "48-hour hearing."
11Plaintiffs seek relief pursuant to 42 U.S.C. § 1983. (Docket 1 if 1). The court has jurisdiction under 28 U.S.C.§§ 1331 and 1343(a)(3) and (4). Venue is proper pursuant to 28 U.S.C. § 1391(b). Defendants acknowledge all acts undertaken by them were done under color of state law. (Dockets 1 if 12; 76 if 10; 80 if 13 & 81 if 12). Each defendant is sued in their official capacity only. Id.
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Claims " (Docket 110) and the "Due Process Claims " (Docket 108). Following extensive submissions by the parties, the motions are ripe for resolution.
SUMMARY JUDGMENT STANDARD
Under Fed. R. Civ. P. 56(a), a movant is entitled to summary judgment if the movant can "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Anderson v.Liberty Lobby,Inc., 477 U.S. 242, 248 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48 (emphasis in original).
In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec.Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In order to withstand a motion for summaryjudgment, the nonmoving party "must substantiate [their] allegations with 'sufficient probative evidence [that] would permit a finding in [their] favor on more than mere speculation, conjecture, or fantasy.' " Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994) (citing Gregory v. Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992).
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In assessing a motion for summary judgment, the court is to "consider only admissible evidence and disregard portions of various affidavits and depositions that were made without personal knowledge, consist of hearsay, or purport to state legal conclusions as fact." Howard v. Columbia Public School District, 363 F.3d 797, 801 (8th Cir. 2004); see Fed. R.Civ.P. 56(e) (a party may hot rely on his own pleadings in resisting a motion for summary judgment; any disputed facts must be supported by affidavit, deposition, or other sworn or certified evidence). The nonmoving party's own conclusions, without supporting evidence, are insufficient �o create a genuine issue of material fact. Anderson, 477 U.S. at 256; Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en bane).
UNDISPUTED MATERIAL FACTS
The following recitation consists of the material facts undisputed by the parties. These facts are developed from the complaint (Docket 1), defendants' answers and amended answers (Dockets 74-76, 80 & 81), plaintiffs' statement of undisputed material facts (Dockets 109), and defendants' response to plaintiffs' statement of undisputed material facts (Dockets 130 & 131). Where a statement of fact is admitted by the opposing party, the court will only reference the initiating document. The facts material to plaintiffs' motions for partial summary judgment are as follows.
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Plaintiffs Oglala Sioux Tribe and Rosebud Sioux Tribe are Indian tribes officially recognized by the United States with reservations located within the State of South Dakota. (Docket 1 if 2). Both tribes have treaties with the federal government. Id. Plaintiffs Madonna Pappan and Lisa Young reside in Pennington County, South Dakota, and are members of the Oglala Sioux Tribe and the Standing Rock Sioux Tribe, respectively. Id. if 5.
Defendant Lynne A. Valenti is the Secretary of the South Dakota Department of Social Services ("DSS").12 Id. if 9. Defendant LuAnn Van Hunnik is the person in charge of DSS Child Protection Services ("CPS") for Pennington County, South Dakota. Id. In state court cases involving Ms. . Pappan and Ms. Young, CPS employees under their supervision prepared petitions for temporary custody and signed ICWA affidavits13 alleging the children of these Indian parents were at risk of serious injury if the children remained at home. Id. if 51.
Defendant Mark Vargo is the duly elected States Attorney for Pennington County. Id. if 10. Defendant Jeff Davis is the presiding judge of the Seventh Judicial Circuit Court of the State of South Dakota, and is the chief administrator of the Seventh Judicial Circuit Court. Id. if 11.
i2Pursuant to Fed.R. Civ. P. 25(d), Ms.Valenti was substituted as a proper party in her official capacity effective February 24, 2014. See Dockets 79 & 82.
13An ICWA affidavit used by the defendants is attached to the complaint. (Docket 1-3).
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Approximately one hundred 48-hour hearings involving Indian children14
are held each year in the Seventh Circuit Court for Pennington County. (Docket 130 if 1). Excluding those cases where jurisdiction over a child was promptly transferred to a tribal court, in 100 percent of the 48-hour hearings conducted by Judge Davis from January 2010 to July 2014, 15 he granted motions by the States Attorney and DSS for continued custody of all Indian children involved in those hearings. (Dockets 109 if 1 & 131 if 1).
Eight hundred twenty-threeIndian children were involved in 48-hour
hearings in Pennington County, South Dakota, during the years 2010 to 2013. (Docket 131 if 2). Of those 823 Indian children
87 children were discharged from DSS custody the day of the 48-Hour hearing; 268 children were discharged from DSS custody within 115 days after the 48-hour hearingl6; 114 children were discharged from DSS custody within 1630 days after the 48-hour hearing;
44 children were discharged from DSS custody within 3145 days after the 48-hour hearing;
14Unless otherwise indicated, all references to "child(ren), " "parent(s), " and "custodian(s) " will mean Indians as that term is defined by 25 U.S.C. § 1903(3).
15Unless a different time frame is specifically identified, all references are to the January 2010 to July 2014 period.
16Defendants identified the number of children in this category as "207." (Docket 131 if 2). Applying the percentage calculation presented by defendants [736 children remaining in DSS custody after the 48-hour hearing x 36.4% = 267.9 children], the correct number is "268." Using the number 268 also accounts for all 823 children in the analysis.
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50 children were discharged from DSS custody within 4660 days after the 48-hour hearing; and 260 children remained in DSS court-ordered custody for more than 60 days after the 48-hour hearing. Id. The defendants acknowledge Seventh Circuit judges receive an ICWA affidavit prior to the 48-hour hearing, but the affidavit is not marked as a hearing exhibit. (Docket 131 if 37). Indian parents who are present at the 48-hour hearings only began receiving a copy of the petition for temporary custody in May 2014. (Docket 109 if 10). DSS asserts that prior to June 2012 it was the practice of DSS to provide parents attending a 48-hour hearing with a copy of the ICWA affidavit. (Docket 131 if 8). DSS also asserts that since June 2012 it has been DSS's written policy to provide the ICWA affidavit to parents attending a 48-hour hearing. Id. DSS claims that if a parent did not receive the ICWA affidavit, it was an oversight and not an intentional decision by the child protection staff. Id. Based on the court's review of the transcripts of 48-hour hearings submitted by the parties at which at least one Indian parent or custodian appeared, disclosure of an ICWA affidavit and a petition for temporary custody to
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a parent was not mentioned in 77 out of 78 cases.17 In a number of transcripts
there are specific exchanges with a judge in which an Indian parent asked about
the allegations against them or why their children were removed. See transcript
10-1119 (father would like to know what the allegations were and the allegations
are explained to him without any reference to either the ICWA affidavit or the
petition for temporary custody); transcript 10-1320 (Judge Thorstenson
indicated the documents would be given to the parents at the next hearing);
transcript 11-497 (mother wanted to know what the issues were and no
explanation was given); transcript 12-36 (neither mother nor the Tribe's attorney
were given the ICWA affidavit or petition for temporary custody); transcript
12-571 (Tribe's attorney stated he was not given any copies of reports); transcript
13-20 (Tribe's attorney noted neither the ICWA affidavit nor the petition for
temporary custody were given to the parent); and transcript 13-49 (Tribe's
attorney noted neither he nor the parent were provided with documentation for
17See transcripts 10-50, 10-177, 10-253, 10-270, 10-304, 10-306, 10-358, 10-494, 10-460, 10-487,10-523, 10-649, 10-773, 10-783, 10-901, 10-955, 10-1007, 10-1064, 10-1116, 10-1119, 10-1170, 10-1191, 10-1238, 10-1320, 11-480, 11-497, 11-645, 11-1004, 11-1060, 11-1075, 12-36, 12-168, 12-191, 12-219, 12-244, 12-245, 12-302, 12-375, 12-468, 12-571, 12-648, 12-668, 12-698, 12-712, 12-749, 12-805, 12-867, 12-1152, 13-20, 13-30, 13-49, 13-53, 13-298, 13-560, 13-609, 13-616, 13-665, 13-697, 13-698, 13-731, 13-805, 13-806, 13-845, 14-47, 14-60, 14-103, 14-114, 14-144, 14-145, 14-304, 14-311, 14-443, 14-446 (3 cases), 14-455, 14-456, and 14-527. In only one case did Judge Davis make reference to "paperwork,'' suggesting the ICWA affidavit may have been provided to the parents of the Indian child. See transcript 10-773. In another case, Judge Thorstenson referenced the ICWA affidavit and petition for temporary custody, but did not indicate the parent was given documents and did not summarize the nature of the allegations. See transcript 12-168.
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the hearing). In none of these hearings did a Deputy States Attorney, DSS
representative or the judge contradict the statements of the Indian parents or
counsel or recess the proceedings to allow the parties to receive and review the
ICWA affidavit and petition for temporary custody.
In cases not involving Judge Davis, other Seventh Circuit Court judges
asked the State for a summary of the allegations which prompted law
enforcement to take custody of the children. Those cases were handled by
Judge Thorstenson,1s Judge Pfeifle19 and Judge Mandei.20
In all 48-hour hearings over which he presided, Judge Davis conveyed the
same information using virtually the same language. Following confirmation
that at least one Indian parent or custodian was present and confirming DSS
intended to proceed on a formal basis, Judge Davis advised the Indian party:
THE COURT: As you know by now there have [sic] been an instance with the respective children in your families that have come to the attention of the State of South Dakota through the Department of Social Services. That then goes to the state's attorney's office and ends up in this court.
As we sit here at this point in the proceedings everyone's plan or hope is for reunification, that is a return of the children. I have been informed though that the state intends to file a formal A&N [Abuse andNeglect] petition here, which puts things on a little more formal basis immediately. The purpose of the temporary custody
18See transcripts12-375; 12-468; 12-712; 12-749; 12-805; 12-867; and 12-1152.
19See transcripts 13-20; 13-30; 13-49; 13-53; 13-298; 13-560; 13-609; 13-616; 13-665; 13-697; 13-698; 13-731; 13-805; and 13-806.
20See transcripts 13-845; 14-47; 14-60; 14-103; 14-114; 14-144; 14-145; 14-304; 14-311; and 14-527.
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hearing is to determine what is in the best interests of the children in the interim until this A&N petition is filed and the matter starts to proceed through the court.
You're entitled to be represented by an attorney in all stages of the proceedings against you. If you cannot afford an attorney one is appointed if you qualify for the representation. Any money spent for court-appointed fees is a bill or lien against any property that you own. The commissioners in Pennington County have a legal right and ability to foreclose or collect on the bill and get back any money spent. Court-appointed counsel fees are in the nature of a loan to you from the county. They are not a gift.
You're entitled to a full formal hearing, an adjudicatory hearing, where the allegations made by the state in the petition must be proven. If the matter is involving theIndian Child Welfare Act, that standard of proof is beyond a reasonable doubt. If the petition is filed under normal state statutes not involving the Indian Child Welfare Act, a preponderance of the evidence is the proof. You're entitled to be present in person, through your counsel, to cross-examine witnesses or ask them questions concerning testimony they give against you. You are entitled to subpoena witnesses to come in to court and testify on your behalf, that is to help you tell your side of the story. They can't be told what to say, but they can be told to be present and tell what they know about particular facts or matters that might be at issue in the lawsuit. This is not a criminal proceeding, neverthelessI always like to advise everyone that you need to be careful as to what you say. Sometimes these allegations involve direct action on your part that place the children in a potentially dangerous situation or a failure on your part to act as a parent to protect the children properly. Anything that you say or admit to throughout the proceedings that might implicate you, either in a direct action or failure to act, could and would be used against you at subsequent hearings or proceedings.
You're entitled to request a new hearing if you feel that evidence has been discovered that was not presented. You may appeal to the Supreme Court of our state any decision rendered in this court. That must be done within 30 days after entry of judgment.
If the state proves the petition by a sufficient standard of proof, the matter would go on to a dispositional hearing. If the state doesn't prove the allegations in the petition, it's dismissed, the children are
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generally returned and life goes back to how you knew it before the state became involved.
If the matter goes to dispositional hearing, that's governed by statute and it goes to the ultimate care, custody and control in the best interests of the children. It can involve a placement back in the family under supervised conditions, a general return, other sorts of kinship or foster placements, any sort of out-of-home placement where the children are properly supervised and provided for, up to arid including a termination of parental rights and placement of the children for adoption. So these are very serious matters and you'll want to make certain that you know and fully understand and exercise your rights.
Transcript 10-304.21
When the DSS worker advised the court they intended to proceed
informally with the parent and not file a formal abuse and neglect petition, Judge
Davis provided the following advisement:
THE COURT: [T]he state anticipates that [it] will go informal, which would mean that you are welcome, if you wish, to work with the Department of Social Services for a period of time, roughly the 60-day temporary custody timeframe, and see if the issues that were raised can be resolved, and everybody's intention is for reunification of the family.
At any time during that 60 days that you feel things aren't going the way you think they should or if you have additional questions or feel that you would like to be represented by an attorney, you just need to ask your family service specialist, the state's attorney's office or my office and we'll kind of back the bus up, so to speak, and appoint counsel and approach the matter a little more formally, which is a full hearing, an adjudicatory hearing, with a petition filed and the state having to prove those allegations in the petition.
21See also transcripts 10-50; 10-253; 10-270; 10-306; 10-358; and 10-773.
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Transcript 10-1170.2 2 Judge Davis goes on to explain the formal adjudicatory and dispositional process, but there is no mention of ICWA, appointment of counsel or the burden of proof for a 48-hour hearing. Id. On several occasions, Judge Davis advised Indian parents there was no need for an attorney because of the option to work informally with DSS for 60 days. See, for example, transcripts 10-901; 12-219; 14-443, 14-446. In two cases, Judge Thorstenson advised the parents there was no need for an attorney if they wanted to work informally with DSS. See transcripts 12-244 and 12-375. Seventh Circuit Judges Thorstenson, 23 Eklund24 and Pfeifle25 incorporated the option of informally working with DSS for 60 days using virtually the same language as Judge Davis.
Judge Davis and the other Seventh Circuit judges presiding over 48-hour hearings {all jointly referred to as the "Seventh Circuit judges ") never advised any Indian parent or custodian they had a right to contest the state's petition for temporary custody during the 48-hour hearing. {Docket 109 if 25). The Seventh Circuit judges never advised Indian parents they had a right to call
22See also transcripts 10-901; 10-1064; 10-1007; 10.:.1170; 10-1191; 11-497; 12-191; 12-219; 12-648; 12-712; 14-446; 14-455; and 14-456.
23See transcripts 10-1116; 12-168; 12-244; 12-302; 12-375; 12-468; 12-571; 12-749; 12-805; and 12-1152.
24See transcripts 12-1238; 11-480; and 11-645. 25See transcripts 13-20; 13-30; 13-49; 13-53; and 13-298.
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witnesses at the 48-hour hearing. Id. if 23. The Seventh Circuit judges never required the State to present sworn testimony from a live witness. Id. if 36.
Judge Davis never advised Indian parents of their right to testify at the 48-hour hearing. (Docket 131 if 19). Judge Davis did not specifically ask parents if they wanted the opportunity to cross-examine the affiant of the ICWA affidavit during the 48-hour hearing. (Docket 131 if 28). During the 48-hour hearings over which he presided in 2010, Judge Davis did not ask parents if they wanted the opportunity to present evidence as to whether the State had in fact undertaken active efforts to prevent a break-up of their family or whether their child could be safely returned to their home. Id. if 24. Judge Davis admits "no oral testimony is taken at a 48-hour hearing." (Docket 109 if 21).
Parents were never advised they could request a brief continuance of the 48-hour hearing to allow the parent to retain counsel. (Docket 109 if 29). Every time the Seventh Circuit judges agreed during a 48-hour hearing to appoint counsel for indigent parents, the judges delayed the appointment of counsel until after granting D S S custody. Id. if 32.
The Seventh Circuit judges used a standardized temporary custody order 26 which functioned as a checklist. (Dockets 109 if 40; 131 if 40). Following 48-hour hearings in which no witness testified and no documents were offered or received as evidence, the Seventh Circuit judges placed checkmarks next to findings of fact without providing any explanation regarding the basis for
26A copy of the Temporary Custody Order used by the defendants is attached to plaintiffs' complaint. (Docket 1-7).
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their findings. Id. The Seventh Circuit judges signed temporary custody orders detailing findings of fact that had never been described on the record or explained to the Indian parents present at the 48-hour hearing. (Docket 109 irir 38 & 41; 131 irir 38 & 41).
At the conclusion of every 48-hour hearing, Judge Davis entered a temporary custody order finding that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the break-up of the Indian family and that these efforts have proven unsuccessful, " and "continued custody of the child(ren) by the parents or Indian custodian is likely to result in serious emotional or physical damage to the child(ren). " (Docket 109 if 42). This language appears in the standardized temporary custody order used by all the Seventh Circuit judges when removing Indian children from their parents.
Every temporary custody order issued by the Seventh Circuit judges granting custody oflndian children to DSS at the conclusion of 48-hour hearings contained the following provision:
The Department of Social Services is hereby authorized to return full and legal custody of the minor child(ren) to the parent(s), guardian or custodian (without further court hearing) at any time during the custody period granted by this Court, if the Department of Social Services concludes that no further child protection issues remain and that temporary custody of the child(ren) is no longer necessary. Id. if 43; see also Docket 1-7. Judge Davis admits Indian parents have rights under both the Due Process Clause and ICWA, but he classifies 48-hour hearings as emergency
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custody proceedings. (Docket 130 if 113; Docket 80 if 43). Judge Davis distinguishes between a petition for temporary custody presented by the State during 48-hour hearings and formal petitions for temporary custody which parents must specifically request during a 48-hour hearing. (Docket 109 if 13). Judge Davis believes 25 U. S. C. § 1922 is a statute of deferment. (Docket 130 if 4). He argues "§ 1922 authorizes state courts to defer applying the protections contained in ICWA until proceedings that occur after48-hour hearings are held." Id. (emphasis in original).
Judge Davis acknowledged in at least one 48-hour hearing that his concern was not why the children were removed from their parents' custody. (Docket 1 if 53). In at least one 48-hour hearing Judge Davis stated. "I don't have what I need here today at the 48 hour hearing to make [a decision to return the children to the mother who was present]." Id. if 54.
Judge Davis admits § 1922 requires first, as a matter of procedure, State authorities " 'shall expeditiously initiate a child custody proceeding' that must comply with ICWA." Id. if 92 (citing § 1922). And second, as a matter of substance, State officials "shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child." Id. if 93 (citing § 1922) (emphasis in original). As recently as June 23, 2014, petitions for temporary custody of Indian children submitted by the States Attorney's staff to
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the Seventh Circuit judges routinely failed to cite § 1922 or its mandates. (Docket 109 if 18).
ANALYSIS
ARE DEFENDANTS POLICY MAKER S? Plaintiffs allege Judge Davis, Mr. Vargo, Ms. Valenti, and Ms. Van Hunnik in their official capacities "pursued policies and practices that deprive parents of custody of hundreds of Indian children without providing those parents and children with even rudimentary due process. " (Docket 108 at p. 6). See also Docket 1 at p.38 (alleging violations of the Due Process Clause of the Fourteenth Amendment and ICWA). "Plaintiffs are not seeking a ruling at the present time as to whether Judge Davis is responsible for the actions of the other judges .... Plaintiffs are confining this motion . . .[to] all of his 48-hour hearings . .. and the policies and practices of the other three named Defendants . ..." (Docket 108 at p. 6 n.4) (italics removed). Defendants claim none of them have "final policymaking authority. " (Docket 129 at p. 19). Plaintiffs seek to vindicate their rights through 42 U. S.C. § 1983. "Liability . . . under 42 U. S. C. § 1983 can exist only where the challenged policy or practice is 'made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. ' " Oglala Sioux Tribe v.Van Hunnik, 993 F. Supp. 2d 1017, 1029 (D. S.D. 2014) (citing Monell v. Department of Social Services of City of New York, 436 U. S.658, 694 (1978)). "A policy maker is one who 'speak[s] with final policymaking authority . ..concerning the action alleged
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to have caused the particular constitutional or statutory violation at issue,'that is one with 'the power to make official policy on a particular issue.' " Id. (citing Jett v.Dallas Independent School District, 491 U.S.701, 737 (1989)). "[T]he ...individual defendant ...[must be] a 'moving force'behind the violation." Id. (citing Clay v.Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987)). "[T]here must be an 'affirmative link'...between the policy and the particular constitutional violation alleged." Id. (citing Clay, 815 F.2d at 1170). "An 'official policy' involves a deliberate choice to follow a course of action made from among various alternatives by an official who has the final authority to establish governmental policy." Id. (citing Pembaur v.City of Cincinnati, 475 U.S.469, 483 (1986)).
Liability under § 1983 "attaches only where the decisionmaker possesses final authority to establish ...policy with respect to the action ordered." Pembaur, 475 U.S.at 481. "'[O]fficial policy'often refers to formal rules or understandings-often but not always committed to writing-that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time." Id.at 480-81. "If the decision to adopt that particular course of action is properly made by ...authorized decisionmakers, it surely represents an act of official government 'policy'as that term is commonly understood." Id.at 481. "The fact that a particular official-even a policymaking official-has discretion in the exercise of particular functions does not, without more, give rise to .. . liability based on an exercise of that discretion....The official must also be responsible for establishing final
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government policy respecting such activity before the [entity] can be held liable. Authority to make ...policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority . . . . " Id. at 481-83. "[W]hether an official had final policymaking authority is a question of state law. " Id. at 483.
Plaintiffs claim Judge Davis initiated six policies, practices and customs for 48-hour hearings which violate the Due Process Clause and ICWA. (Docket 69 at p. 20). Those are:
1. Not allowing parents to see the ICWA petition filed against them; 2. Not allowing the parents to see the affidavit supporting the
petition; 3. Not allowing the parents to cross-examine the person who signed
the affidavit; 4. Not permitting the parents to present evidence; 5. Placing Indian children in foster care for a minimum of 60 days
without receiving any testimony from qualified experts related to "active efforts " being made to prevent the break-up of the family; and 6. Failing to take expert testimony that continued custody of the child by the Indian parent or custodian is likely to result in serious emotional or physical damage to the child. Id. at pp. 20-21. Judge Davis claims his "decisions are not 'policies, practices, or customs,' they are adjudications of 25 U. S. C. § 1922, and the applicable state law procedures. " (Docket 129 at p. 19). Judge Davis argues he is "an initial decision maker, but he is not a final policy maker " for purposes of § 1983 because his decisions are subject to appellate review. (Docket 128 at p. 13).
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Judge Davis asserts his decisions are not final decisions and he is not "a proper defendant under § 1983." (Docket 129 at p. 19).
Plaintiffs counter that Judge Davis "created all of the practices for which [he is] being sued in this litigation, and recently changed a few of them." (Docket 136 at p. 28) (italics removed). Plaintiffs argue Judge Davis "select[ed] the practices challenged in this lawsuit. This is not adjudicating; that is rule making, and judges can be sued like anyone else for rules they make that violate federal law. " Id. (referencing Pulliam v. Allen, 466 U. S. 522 (1984) (italics removed).
None of the complained of policies or practices are compelled by state law or § 1922. Judge Davis cannot point to any provision of South Dakota law or ICWA which supports the six actions he created for 48-hour hearings. There is no right of appellate review of Judge Davis'48-hour hearing decisions because those decisions are not a final judgment subject to appellate review under South Dakota law. SDCL § 15-26A-3. "To be final, a judgment must finally and completely adjudicate all of the issues of fact and law involved in the case. " Midcom, Inc. v. Oehlerking, 722 N.W.2d 722, 725 (S.D. 2006) (internal quotation marks and citations omitted).
Judge Davis'decisions are "final decisions " for purposes of § 1983. He established each of the policies and procedures for conducting 48-hour hearings and Judge Davis is empowered to change them at any time.
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Plaintiffs assert States Attorney Vargo, DSS Secretary Valenti and Ms. Van Hunnik acquiesced in Judge Davis'policies regarding the manner in which 48-hour hearings are conducted. (Docketsl 10 at p. 12; 136 at p. 31). Defendants argue Judge Davis has not "enacted a policy, practice, or custom, [to] which the other ...defendants .. .could acquiesce. " (Docket 128 at p.5). Defendants'position is untenable.
Defendants Vargo, Valenti and Van Hunnik understand 48-hour hearings are intended to be evidentiary hearings. 27 They also are aware Judge Davis does not permit Indian parents to present evidence opposing the State's petition for temporary custody. Judge Davis prevents Indian parents from cross-examining any of the State's witnesses who would support of the petition. Judge Davis does not require the States Attorney or DSS to call witnesses to support removal of Indian children nor does Judge Davis permit testimony as to whether a removed child is in immediate risk of harm if returned to her parents. There is no evidence any one of these three defendants or their courtroom representatives, Deputy States Attorneys or case workers sought to change the practices established by Judge Davis. When these defendants did not challenge Judge Davis'policies for conducting 48-hour hearings, his policies became the official policy governing their own agencies. Coleman v.Watt, 40 F.3d 255, 262
27See the Department of Interior Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67584-67595 (Nov. 26, 1979) and the 2007 South Dakota Unified Judicial System South Dakota Guidelines for Judicial Process in Child Abuse and Neglect Cases discussed at pp. 29-34 and the court's due process analysis at pp.36-42.
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(8th Cir. 1994). "[B]y acquiescence in a longstanding practice " of Judge Davis "which constitutes the standard operating procedure " of the Seventh Circuit Court, these defendants exposed themselves to liability. Jett, 491 U. S. at 737 (internal quotation marks omitted).
Defendants created the appearance of regularity in a highly irregular process. Judicial and prosecutorial immunity do not extend to plaintiffs' claims for injunctive and declaratory relief under § 1983. Pulliam, 466 U.S. at 541-42; Timmerman v. Brown, 528 F.2d 811, 814 (4th Cir. 1975); Oglala Sioux Tribe, 993 F. Supp. 2d at 1033 (citations omitted). The defendants are policy makers for purposes of 42 U. S. C. § 1983.
REMOVAL OF INDIAN CHILDREN FROM THEIR PARENT S, INDIAN CU STODIAN S AND TRIBES: THE INDIAN CHILD WELFARE ACT VIOLATION S This case focuses on the obligations of the defendants under the Indian Child Welfare Act and its interface with South Dakota law. In South Dakota, any "child may be taken into temporary custody by a law enforcement officer without order of the court . . . [i]f the child is abandoned or seriously endangered . . . and immediate removal of the child appears to be necessary for the child's protection . . .. " SDCL § 26-7A-12(2). The court is then authorized to "issue a written temporary custody directive . . . . " SDCL § 26-7A-13. "An apparent abused or neglected child taken into temporary custody and not released to the child's parent, guardian, or custodian may be placed in the temporary care of the Department of Social Services . . . . " SDCL§ 26-7A-14. "[N]o child may be held
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in temporary custody longer than forty-eight hours .. . excluding Saturdays, Sundays, and court holidays, unless a .. . petition has been filed . . . and the court orders longer custody during a noticed hearing ... . " Id. A 48-hour hearing under South Dakota law is a temporary custody hearing included in the definition of "foster care placement " under 25 U. S. C. § 1903(1)(i) ("'foster care placement' . . . shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement . . . where the parent or Indian custodian cannot have the child returned upon demand . ...").
At a 48-hour hearing under South Dakota law, "the court shall consider the evidence of the need for continued temporary custody of the child in keeping with the best interests of the child." SDCL § 26-7A-18. If the court retains the child in the custody of DSS, state law requires judicial review "every sixty days. " SDCL § 26-7A-19(3).
Judge Davis argues "§ 1922 defers'the full panoply oflCWA rights,' specifically §§ 1912(d) and (3) of ICWA, until a 'child custody proceeding,' as defined in § 1903, is held." (Docket 128 at p. 14). Judge Davis asserts "whether analyzed under state law or § 1922,'the imminent danger to the child' triggers the respective emergency custody statutes where it appears'necessary' to protect the child's best interests. " Id.at p. 15 (citation to earlier briefing and bracketing omitted).
Section 1922 is not a "statute of deferment. " Section 1922 mandates that state officials "insure that the emergency removal . .. terminates immediately
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when such removal . . . is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of [ICWA], transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate. " 25 U. S. C. § 1922. Deferring application of § 1922 would undermine the Congressional declaration that a State's emergency custody authority immediately terminates when "imminent physical damage or harm to the child " is no longer present.
The Department ofInterior Guidelines for State Courts; Indian Child Custody Proceedings ("DOI Guidelines ") were promulgated to aid in the interpretation of ICWA's provisions. 44 Fed. Reg. 67584-67595 (Nov. 26, 1979). The DOI Guidelines were updated for the first time in thirty-five years on February 19, 2015 ("DOI Revised Guidelines "). 28 See Docket 140-1.
The DOI Guidelines are not binding on the court but are an administrative interpretation of ICWA entitled to great weight. United States v. American Trucking Associations, 310 U. S. 534, 549 (1940); Mitchell v. Burgess, 239 F.2d 484, 487 (8th Cir. 1956). The DOI Guidelines are clear that "[p]roceedings in state courts involving the custody of Indian children shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to [ICWA's] preferences [for keeping Indian children with their
2sBefore addressing the DOI Revised Guidelines, the court must focus on the DOI Guidelines as they existed during the pendency of this litigation before February 19, 2015.
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families]." 44 Fed.Reg.at 67586. "The entire legislative history makes it clear that [ICWA] is directed primarily at attempts to place someone other than the parent or Indian custodian in charge of raising an Indian child-whether on a permanent or temporary basis. " Id.at 67587.
Focusing on emergency removal situations, the DOI Guidelines state "[s]ince emergency action must be taken without the careful advance deliberation normally required, procedures must be established to assure that the emergency actions are quickly subjected to review. . . . The legislative history clearly states that placements under such emergency procedures are to be as short as possible. If the emergency ends, the placement shall end. " Id. at 67590. "Unless there is some kind of time limit on the length of an 'emergency removal' (that is, any removal not made pursuant to a finding by the court that there is clear and convincing evidence that continued parental custody would make serious physical or emotional harm likely), the safeguards of the Act could be evaded by use of long-term emergency removals. " Id.
The DOI Guidelines contemplate that "[e]ach party to a foster care placement ...under State law involving an Indian child has the right to examine all reports or other documents filed with the court upon which any decision with respect to such action may be based. No decision of the court shall be based on any report or other document not filed with the court." Id. at 67592.
The DOI Revised Guidelines "expand upon the emergency procedure provisions in light of evidence that some States routinely rely upon emergency
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removal and placements in a manner that bypasses implementation of ICWA. " (Docket 140-1 at p. 8). The DOI Revised Guidelines "provide minimum Federal standards and best practices to ensure compliance with ICWA and should be applied in all child custody proceedings in which the Act applies. " Id. at p. 23. These guidelines recognize and maintain the definition of "foster care placement " to include "any action removing an Indian child from his or her parent or Indian custodian for temporary placement in a foster home or institution . . . where the parent or Indian custodian cannot have the child returned upon demand, although parental rights have not been terminated . . . . " Id. at p. 17.
The DOI Revised Guidelines require a state court to "[p]romptly hold a hearing to hear evidence and evaluate whether the removal or placement continues to be necessary whenever new information is received or assertions are made that the emergency situation has ended[] and . . . [i]mmediately terminate the emergency removal or placement once the court possesses sufficient evidence to determine that the emergency has ended. " Id. at p. 35. "The emergency removal or placement must terminate as soon as the imminent physical damage or harm to the child which resulted in the emergency removal or placement no longer exists . . . . " Id. at p. 37.
Of significance for the present litigation, the DOI Revised Guidelines reiterate that "[t]he court must inform each party to a foster care placement . . . of his or her right to timely examination of all reports and other documents filed with the court and all files upon which any decision with respect to such action
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may be based... . [and] [d]ecisions of the court may be based only upon reports,
documents or testimony presented on the record. " Id.at p. 41.
In 2007, the South Dakota Unified Judicial System promulgated the South
Dakota Guidelines for Judicial Process in Child Abuse and Neglect Cases. ("SD
Guidelines "). 29 (Docket 1 ii 34). The SD Guidelines state:
Pursuant to SDCL 26-7A-18, at the Temporary Custody 48 Hour Hearing the court shall consider evidence of the need for continued temporary custody . . . to determine whether continued temporary custody outside the home is necessary to protect the child. The purpose is to decide whether the child can be safely returned home and when. The decision should be based on a competent assessment of the risks and dangers to the child. The Court should evaluate the current and future danger to the child and what can be done to eliminate the danger.
Id. (citing SD Guidelines at p. 33). The SD Guidelines provide that "[t]he family
services specialist should be ready to detail reasonable efforts [to avoid removal
of the child] at the 48 hour hearing, " including current and historical
information, such as contacts with the parents since the child's removal and
previous abuse or neglect issues. Id. ii 36 (citing SD Guidelines at pp. 37-38).
The SD Guidelines provide where a child is an Indian, D S S must support its
petition for temporary custody with an ICWA affidavit or by testimony from a
"qualified expert that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the child
29The SD Guidelines were updated in March 2014. Those are available at http://ujs.sd.gov/uploads/pubs/ SDGuidelinesAandNProceedings.pdf. Like the DOI Guidelines, the court will focus on the SD Guidelines as they existed throughout the majority of this litigation.
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(25 U SC 1912(e)). " Id. if 37 (citing SD Guidelines at p. 46). In any 48-hour
hearing involving an Indian child, the SD Guidelines state that "the Court must
determine whether [D SS] has made active efforts to preserve the family
(25 U. S. C.A. 1912(d)) " and whether the person endangering the child has "been
removed from the home so the child could remain. " Id. if 38 (citing SD
Guidelines at p. 38).
The SD Guidelines contemplate that a 48-hour hearing is an evidentiary
hearing which may be extended when necessary.
A 48 Hour Temporary Custody Hearing involves substantial time and resources. . . .[The court's decision must be] based on careful consideration of the circumstances of the case. Due to constraints of time, it might not be possible for the Court to conduct a complete initial custody hearing. In these circumstances, the Court should . . . (c) Continue the 48 Hour Temporary Custody Hearing and set the time, date and place of the continued hearing.
Id. if 40 (citing SD Guidelines at pp. 41-42) (emphasis in original). At the
conclusion of the hearing, the court must "determine that removal of the child is
or_ was necessary because continued presence in the home or return to the home
would be contrary to the child's welfare. " Id. if 38 (citing SD Guidelines at
p. 37). The Guidelines recommend use of a temporary custody order with the
following language:
That there is probable cause to believe that the child(ren) is/ are abused or neglected, . . . . That temporary custody is the least restrictive alternative in the child(ren)'s best interest . . . . That active efforts have ·been made to provide remedial services and rehabilitative programs designed to prevent the break-up of the Indian family and that these efforts have proven unsuccessful. . . . That continued custody of the child
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by the parents or Indian custodian is likely to result in serious emotional or physical damage to the child. Id. if 39. The DOI Guidelines and the SD Guidelines were publically available to the Seventh Circuit judges including Judge Davis and to the other defendants. A simple examination of these administrative materials should have convinced the defendants that their policies and procedures were not in conformity with ICWA § 1922, the DOI Guidelines or the Guidelines promulgated by the South Dakota Unified Judicial System. Indian children, parents and tribes deserve better. Judge Davis does not conduct any inquiry during the 48-hour hearings to determine whether emergency removal remains necessary.30 He permits no testimony by the Indian parents or presentation of testimony by the tribal attorney to determine whether the risk of imminent physical harm has passed. Contrary to the clear intent of ICWA, the DOI Guidelines and the SD Guidelines, all of which contemplate evidence will be presented on the record in open court, Judge Davis relies on the ICWA affidavit and petition for temporary custody which routinely are disclosed only to him and not to the Indian parents, their
30Defendants claim Indian parents were asked during the 48-hour hearings if the emergency which required removal of their children had terminated. (Docket 131 if 17). Defendants claim "this inquiry is always made even if it is not verbalized on the record. " Id. Defendants refer to three cases handled by Judge Thorstenson, but none by Judge Davis. Id. While another judge may have made such an inquiry, defendants' mere allegations unsupported by specific evidence is insufficient to withstand a motion for summary judgment. Thomas, 483 F. 3d at 527.
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attorney or custodians. These undisclosed documents are not subject to cross­ examination or challenge by the presentation of contradictory evidence.
The defendants acknowledge the practice of Judge Davis is to authorize D S S to perform the function of determining if, or when, the imminent risk of physical harm to an Indian child has passed and to restore custody to the child's parents. (Docket 130 at p.3; see also Docket 1-7). This authorization vests full discretion in D S S to make the decision if and when an Indian child may be reunited with the parents. This abdication of judicial authority is contrary to the protections guaranteed Indian parents, children and tribes under ICWA.
The policy and practice of Judge Davis does not comply with the requirement of§ 1922 to order restoration of custody to Indian parents when the risk of imminent physical harm no longer exists. While Judge Davis may believe granting D S S discretion shortens the potential time period of an emergency placement, the policy ignores the mandate of § 1922 and removes the court from the decision-making process. A competently conducted evidentiary hearing held on an expedited basis is fundamental to ICWA's purposes. ICWA requires the state court to make the custody decision at the earliest possible moment. The court cannot delegate the authority to make the custody decision to a state agency or its employees.
Plaintiffs are entitled to judgment as a matter of law on their Indian Child Welfare Act claims.
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REMOVAL OF INDIAN CHILDREN FROM THEIR PARENT S, INDIAN CUSTODIAN S AND TRIBE S: THE DUE PROCE SS VIOLATION S
"The Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody and
control of their children." Troxel, 530 U. S. at 66. Defendants agree the basic
elements of due process are required at 48-hour hearings. (Docket 129 at p. 1).
Plaintiffs claim the defendants have violated the Due Process Clause since
January 1, 2010, in five different areas:
1. Defendants have failed to give parents adequate notice of the claims against them, the issues to be decided, and the State's burden of proof;
2. Defendants have denied parents the opportunity to present evidence in their defense;
3. Defendants have denied parents the opportunity to confront and cross-examine adverse witnesses;
4. Defendants have failed to provide indigent parents with the opportunity to be represented by appointed counsel; and
5. Defendants have removed Indian children from their homes without basing their removal orders on evidence adduced in the hearing, and then subsequently issued written findings that bore no resemblance to the facts presented at the hearing.
(Docket 108 at pp.7-8).
"It is well settled that state law does not define the parameters of due
process for the purposes of the Fourteenth Amendment." Brown v.Daniels, 290
F.App'x 467, 471 (3d Cir. 2008) (referencing Cleveland Board of Education v.
Loudermill, 470 U. S. 532, 541 (1985) ("(O]nce it is determined that the Due
Process Clause applies, the question remains what process is due. The answer
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to that question is not to be found in the [state] statute. ") (citation and internal quotation marks omitted); Swipies v. Kofka, 419 F. 3d 709, 716 (8th Cir. 2005) (holding that "a state statute cannot dictate what procedural protections must · attend a liberty interest . . . as this is the sole province of federal law "). "Federal procedural due process guarantees prompt post-deprivation judicial review in child custody cases. " Campbell v. Burt, 141 F. 3d 927, 929 (9th Cir. 1998). "When the state deprives parents and children of their right to familial integrity, even in an emergency situation, without a prior due process hearing, the state has the burden to initiate prompt judicial proceedings to provide a post deprivation hearing. " Whisman v. Rinehart, 119 F. 3d 1303, 1311 (8th Cir. 1997).
"One of the core purposes of the Due Process Clause is to provide individuals with notice of claims against them. " Oglala Sioux Tribe, 993 F. Supp. 2d at 1037. A significant component of procedural due process notice is that the "notice should include the date, time and place of the hearing; a clear statement of the purpose of the proceedings and the possible consequences to the subject thereof; the alleged factual basis for the proposed commitment; and a statement of the legal standard upon which commitment is authorized. " Syrovatka v. Erlich, 608 F. 2d 307, 310 (8th Cir. 1979) (quoting Alsager v. District Court of Polk County, Iowa, 406 F. Supp. 10, 25 (S.D. Iowa 1975), aff 'd, 545 F.2d 1137 (8th Cir. 1976)).
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"The due process clause ensures every individual subject to a deprivation 'the opportunity to be heard at a meaningful time and in a meaningful manner. ' " Oglala Sioux Tribe, 993 F. Supp. 2d at 1036 (citing Swipies, 419 F. 3d at 715) (citing Mathews v. Eldridge, 424 U. S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U. S. 545, 552 (1965))). "In the context of child removal cases, the 'meaningful time' and 'meaningful manner'assurances impose a duty on the state to hold a hearing promptly after the removal. " Swipies, 419 F. 3d at 715 (referencing Whisman, 119 F. 3d at 1310-11).
As the court concluded in its analysis of ICWA violations, there is no procedure in the Seventh Judicial Circuit ensuring that Indian parents or custodians are given copies of the petition for temporary custody and the ICWA affidavit at 48-hour hearings. Some Seventh Circuit judges do generally require the State to recite a summary of the allegations which form the basis for the emergency removal of Indian children. But that practice must "yield to the requirements that the . . . parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. " Application of Gault, 387 U. S. 1, 33 (1967).
Defendants refuse to give parents a copy of any police reports which may accompany the ICWA affidavit and petition for temporary custody. (Docket 129 at p. 25). Defendants argue SDCL § 26-7A-29 prohibits them from disclosing
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police reports. Id. This interpretation of the statute directly contradicts the clear mandate of ICWA and due process which require that all documents to be considered by the court must be disclosed to the parties. 25 U. S. C. § 1912(c) and DOI Guidelines 44 Fed. Reg. at 67592. A judge's order directing that police reports be provided to the Indian parents would satisfy SDCL § 26-7A-29.
Defendants acknowledge indigent Indian parents attending 48-hour hearings are entitled to court appointed-counsel but disagree as to when an appointment of counsel must be made. (Docket 129 at p. 27). The Seventh Circuit judges' practice is to appoint counsel after entry of the temporary custody order. That is, after the court orders foster care placement for the Indian child. Defendants claim their practice of appointing counsel at the end of the 48-hour hearing is not prejudicial because if counsel is appointed, the Indian parent always retains the right to notice a further hearing at which the attorney may appear with them. Id. This practice defies logic because the damage is already done-Indian parents have been deprived of counsel during the course of what should have been an adversarial evidentiary hearing conducted in advance of a court order imposing out-of-home custody for an Indian child.3 1
"[I]t is the [party's] interest in personal freedom . . . which triggers the right to appointed counsel . . . . " Lassiter v. Department of Social Services of Durham County, N. C., 452 U. S. 18, 25 (1981). "[A] fundamental requisite of due process of law is the opportunity to be heard . . . [and] [t]he right to be heard would be
3l1 CWA mandates appointment of counsel for indigent Indian parents "in any removal, placement or termination proceeding. " 25 U. S. C. § 1912(b).
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...of little avail if it did not comprehend the right to be heard by counsel." Goldberg v.Kelly, 397 U.S.254, 267 and 270 (1970). "Since the State has an urgent interest in the welfare of the child, it shares the parent's interest in an accurate and just decision." Lassiter, 452 U.S.at 27. . "If, as our adversary system presupposes, accurate and just results are most likely to be obtained through the equal contest of opposed interests, the State's interest in the child's welfare may perhaps best be served by a hearing in which both the parent and the State acting for the child are represented by counsel, without whom the contest of interests may become unwholesomely unequal." Id.at 28.
Appointing counsel and continuing the 48-hour hearing for a few hours or even a day to allow court-appointed counsel to confer with the Indian parents and become familiar with the critical documents upon which the 48-hour hearing is based would result in an "equal contest of oppos[ing] interests." Id.at 28. This process undoubtedly will require additional time and more county and judicial resources but these concerns are not adequate reasons to forego rights mandated by ICWA and fundamental due process. "A parent's interest in the accuracy and justice in the decision ...is ...a commanding one. " Id.at 27.
"Ordinarily, the right to present evidence is basic to a fair hearing ...." Wolff v.McDonnell, 418 U.S.539, 566 (1974). "[T]he Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged." Logan v.Zimmerman Brush Co., 455 U.S.422, 433 (1982). The United States Supreme Court has "frequently emphasized that the right to
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confront and cross-examine witnesses is a fundamental aspect of procedural due process." Jenkins v. McKeithen, 395 U. S. 411, 428 (1969) (references omitted). It is a central element of due process that a party has the "right to be confronted with all adverse evidence and to cross-examine witnesses." Nevels v. Hanlon, 656 F. 2d 372, 376 (8th Cir. 1981). Exparte communications between a Deputy States Attorney, a D S S representative and the judge, whether in the form of undisclosed affidavits and reports or oral communications, violate this fundamental right. Id.
Defendants argue "[a]t the 48-hour hearings, parents are not prevented by Judge Davis from offering evidence or testifying." (Docket 129 at p. 29). This argument is contradicted by Judge Davis' own declaration that no oral testimony is permitted during the 48-hour hearings he conducts. (Docket 130 at p. 5). Defendants cannot create a disputed material fact to defeat summary judgment by ignoring Judge Davis' own admission. Anderson, 477 U. S. at 256.
Defendants argue the ICWA affidavit and petition for temporary custody prepared by the State and presented to the judges prior to the 48-hour hearings qualify as evidence in accord with Cheyenne River Sioux Tribe v. Davis, 822 N.W. 2d 62 (S.D. 2012). (Docket 129 at pp. 32-33). This argument ignores the parents' due process rights to see these documents, confront them and cross­ examine the document preparers.
The Due Process Clause requires a judge to base a decision solely on the evidence presented during a hearing. "[T]he decisionmaker's [action] . . . must
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rest solely on the legal rules and evidence adduced at the hearing. " Goldberg, 397 U. S. at 271. "To demonstrate compliance with this elementary requirement, the decision maker should state the reasons for his determination and indicate the evidence he relied on . . . . though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law. " Id. (internal citation omitted).3 2
Judge Davis and the other defendants failed to protect Indian parents' fundamental rights to a fair hearing by not allowing them to present evidence to contradict the State's removal documents. The defendants failed by not allowing the parents to confront and cross-examine D S S witnesses. The defendants failed by using documents as a basis for the court's decisions which were not provided to the parents and which were not received in evidence at the 48-hour hearings.
Plaintiffs are entitled to judgment as a matter of law on their Due Process Clause claims.
RELIEF "The focus of this litigation is not to redress past injuries to plaintiffs; rather, it is to prevent future violations of the Due Process Clause of the Fourteenth Amendment and ICWA. " Oglala Sioux Tribe, 993 F. Supp. 2d at 1028. This litigation "is inextricably bound up with the Tribes' ability to 32See the court's description of the standardized temporary custody order which purports to make findings justifying continued state custody though no documents were received in evidence and the State presented no witnesses at the 48-hour hearing, supra, pp. 19-20.
42

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maintain their integrity and 'promote the stability and security of the Indian tribes and families. "' Id.(citing 25 U.S. C. § 1902).
Defendants argue plaintiffs are not entitled to declaratory relief against Judge Davis or injunctive relief against the other defendants because plaintiffs'claims have been rectified by an agreement with Attorney Dana Hanna as counsel for the two Tribes. (Docket 129 at p. 34). Defendants argue "there is no longer a case or controversy for purpose of this Court's Article III jurisdiction and Plaintiffs'requested declaratory and injunctive relief should be denied on that basis. " Id.
"[A]s a general rule, voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e . , does not make the case moot."; Los Angeles County v. Davis, 440 U. S. 625, 631 (1979). But jurisdiction, properly acquired, may abate if the case becomes moot because:
(1) it can be said with assurance that there is no reasonable expectation . ..that the alleged violation will recur . . . [;] and
(2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.
Id.(internal citations and quotation marks omitted). "When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law. " Id. See also Strutton v. Meade, 668 F. 3d 549, 556 (8th Cir. 2012) ("Mere voluntary cessation of a challenged action does not
43

Case 5:13-cv-05020-JLV Document 150 Filed 03/30/15 Page 44 of 45 PageID #: 3927
moot a case. Rather a case becomes moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.") (internal quotation marks and citations omitted).
Based on the court's analysis, plaintiffs' claims have not been fully resolved. Defendants' informal agreement with Attorney Hanna did not address or resolve a single issue raised in plaintiffs' two motions for partial summary judgment.
The fact States Attorney Vargo and DSS now represent that as of May 2014 they are providing both the petition for temporary custody and the ICWA affidavit to Indian parents at 48-hour hearings does not diminish plaintiffs' right to relief. Judge Davis still maintains§ 1922 and the due process rights discussed above do not apply at 48-hour hearings. (Docket 130 at p. 5).
Defendants have not shown "it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. " Gwaltney of Smithfield, Ltd.v. Chesapeake Bay Found., Inc., 484 U. S. 49, 66 (1987) (italics in original).
Plaintiffs are entitled to injunctive and declaratory relief.
ORDER
Based on the above analysis, it is hereby ORDERED that plaintiffs' motions for partial summary judgment (Dockets 108 & 110) are granted. A separate injunction and declaratory judgment order shall issue after submissions by the parties addressing the
44

Case 5:13-cv-05020-JLV Document 150 Filed 03/30/15 Page 45 of 45 PageID #: 3928

appropriate remedies, those submissions to be filed with the court on or

before May 1 , 20 1 5 .

IT I S FURTHER ORDERED that the motion to defer ruling on plaintiffs'

pending motion regarding 25 U. S.C. § 1922 (Docket 137) is denied as moot.

Dated March 30, 2015.

BY THE COURT:

�� CH

DGE

45

 
 Case 5:13-cv-05020-JLV Document 301 Filed 12/15/16 Page 1 of 7 PageID #: 6685

UNITED STATE S DISTRICT COURT DI STRICT OF SOUTH DAKOTA WE STERN DIVISION

OGLALA SIOUX TRIBE and ROSEBUD SIOUX TRIBE, as parens patriae, to protect the rights of their tribal members; MADONNA PAPPAN, and LISA YOUNG, individually and on behalf of all other persons similarly situated,
Plaintiffs,
vs.
LISA FLEMING; MARK VARGO; HONORABLE CRAIG PFEIFLE; and LYNNE A.VALENTI, in their official capacities,
Defendants.

CIV. 13-5020-JLV ORDER

INTRODUCTION
Plaintiffs filed a motion for partial summary judgment, together with supporting documentation, against Defendant Mark Vargo. (Dockets 261, 263 & 265). Defendant Vargo filed a motion to strike plaintiffs' motion. (Docket 268). Mr.Vargo also filed a responsive legal memorandum, with supporting documentation, in resistance to plaintiffs' motion. (Dockets 269-271). For the reasons stated below, defendant's motion to strike is denied and plaintiffs' motion for partial summary judgment is granted.
ANALYSIS
Plaintiffs seek partial summary judgment against Defendant Vargo because § 1922 of the Indian Child Welfare Act ("ICWA ")1 requires that "[t]he

125 U.S.C.§ 1901 et seq.

Case 5:13-cv-05020-JLV Document 301 Filed 12/15/16 Page 2 of 7 PageID #: 6686
State authority, official, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child . ..." 25 U.S.C.§1922. Plaintiffs allege the Pennington County State's Attorney and his staff are applying a standard in 48-hour hearings2 and subsequent emergency proceedings3 where "continued custody of the child ... by the parents or Indian custodian is likely to result in serious emotional or physical harm to the child ...." (Docket 262 at pp.2-3) (emphasis added); see also Dockets 263 iii! 2 & 3 and 270 iii! 2 & 3. Plaintiffs contend that in applying this broader definition of harm, Mr.Vargo "permits DSS to seek continued custody of an Indian child based exclusively on evidence of emotional damage." Id.at p.4 (emphasis in original). According to the undisputed evidence, "in approximately seventy-five percent oflndian custody cases, continued custody is sought based exclusively on emotional damage." Id.(references to the record omitted).
2SDCL § 26-7 A-14 directs "no child may be held in temporary custody longer than forty-eight hours ...excluding Saturdays, Sundays, and court holidays, unless a ...petition has been filed ...and the court orders longer custody during a noticed hearing ...." These proceedings are commonly referred to as a "48-hour hearing."
3"Emergency proceeding means and includes any court action that involves an emergency removal or emergency placement of an Indian child." 25 CFR§ 23.2 (December 12, 2016). "These proceedings are distinct from other types of 'child-custody proceedings' under [ICWA]." Executive Summary to the Department of the Interior's regulations implementing ICWA, 81 Fed.Reg. 38778-38876, 38793 (June 14, 2016) ("Executive Summary ").
2

Case 5:13-cv-05020-JLV Document 301 Filed 12/15/16 Page 3 of 7 PageID #: 6687
Plaintiffs allege the evidence discloses that Mr.Vargo and his staff refuse to apply the proper standard under§ 1922. Id.at p. 6. Plaintiffs submit "Defendant Vargo's construction of § 1922 is ...inconsistent with the overarching purpose of ICWA because it lowers the bar, thereby resulting in more Indian children being removed from their homes than Congress intended to allow. " Id.at p.12. Plaintiffs assert "Defendant Vargo is circumventing this Court's ruling on § 1922 by interpreting and applying it in a manner contrary to its language, its legislative history, and with the remedial purpose of the Indian Child Welfare Act. " Id.
Mr.Vargo asks the court to strike plaintiffs' motion for partial summary judgment because "Plaintiffs have already sought-and were granted-summary judgment against [him] for all of the allegations they raised ...in the complaint." (Docket 269 at p.1). Mr.Vargo contends that if plaintiffs want to seek summary judgment on the basis presently alleged, they "must first ...amend their complaint to include the allegations upon which they now seek summary judgment." Id.at p.3.
I n the alternative, Mr. Vargo argues plaintiffs' motion must b e denied because the court has previously referenced "emotional or physical damage " in its earlier orders. Id. at pp.6-7 (references omitted). Mr.Vargo also argues the legislative history of§ 1922 must have intended to separate "physical damage " from "harm." Id. at p.7. He contends this would allow consideration of
3

Case 5:13-cv-05020-JLV Document 301 Filed 12/15/16 Page 4 of 7 PageID #: 6688
"emotional harm " within the definition of harm. Id.at p.8; see also Docket 270 at p.4 if 2.
Plaintiffs' counter-argument is that the first motion for summary judgment "challenged Vargo's policy of ignoring§ 1922, whereas in the second motion, Plaintiffs challenge Vargo's policy of misinterpreting and misapplying§ 1922." (Docket 279 at p. 4) (emphasis in original). Plaintiffs contend Mr. Vargo's argument "overlooks the fact that ICWA contains two different standards for removal/retention of Indian children: one applicable to the§ 1922 initial hearing ("imminent physical damage or harm ") and the other applicable to§§ 1912(e) and (f) adjudicatory hearings to determine long-term foster care or adoption ("serious emotional or physical damage ")." Id.at p. 7. Plaintiffs seek partial summary judgment against Mr.Vargo "to remove this final obstacle to the implementation of§ 1922 in Defendants' 48-hour hearings. " (Docket 262 at p. 6).
During an emergency proceeding involving the removal of an Indian child from the custody of an Indian parent or custodian and the subsequent determination of whether the child should be returned to the custody of the parent or custodian without initiation of an abuse and neglect petition, "the emergency removal or placement " must "terminate[] immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child ...." 25 U.S.C.§ 1922 ("§ 1922 standard ").
4

Case 5:13-cv-05020-JLV Document 301 Filed 12/15/16 Page 5 of 7 PageID #: 6689
During the comment period for updating the ICWA regulations this past year, "[m]any commenters opposed the proposed definition of 'imminent physical harm or damage' because they asserted ...[t)he proposed definition is too narrow in omitting neglect and emotional or mental (psychological) harm and would preclude emergency measures to protect a child from these types of harms ...." Executive Summary, 81 Fed. Reg. at 38793 (June 14, 2016). The Executive Summary declined to incorporate emotional harm within the parameters of§ 1922, stating "[t]he 'imminent physical damage or harm' standard applies only to emergency proceedings, which are not subject to the same procedural and substantive protections as other types of child-custody proceedings4. .. ." Id. The Executive Summary advised "Congress used the standard of 'imminent physical damage or harm' to guard against emergency removals where there is no imminent physical damage or harm." Id.at 38794. "ICWA requires that an emergency proceeding terminate immediately when the removal or placement is no longer necessary to prevent imminent physical damage or harm to the child." Id. at 38817 (emphasis added). "An emergency proceeding " is terminated by "(1) Initiation of a child-custody proceeding subject to the provisions of ICWA; (2) Transfer of the child to the jurisdiction of the
4By contrast, subsequent child-custody adjudication hearings are bound by the language of§ 1912, which states: "No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence ...that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 U.S.C.§ 1912(e) ("§ 1912 standard ").
5

Case 5:13-cv-05020-JLV Document 301 Filed 12/15/16 Page 6 of 7 PageID #: 6690
appropriate Indian Tribe; or (3) Restoring the child to the parent or Indian custodian." 25 CFR § 23.l 13(c) (December 12, 2016).
ICWA "treats emergency proceedings, at § 1922, differently from other child-custody proceedings....The emergency proceedings should be as short as possible and may end with the initiation of a child-custody proceeding subject to the provisions of ICWA (e.g., the notice required by§ 23.111, time limits required by§ 23.112)." Executive Summary, 81 Fed.Reg.at 38821. By using the § 1922 standard, "Congress established a high bar for emergency proceedings that occur without the full suite of protections in ICWA." Id. at 38793.
The court must examine§ 1922 to determine "whether the language at issue has a plain and unambiguous meaning ...." Solis v. Summit Contractors, Inc., 558 F.3d 815, 823 (8th Cir.2009). The language of§ 1922 is clear. The phrase "imminent physical " modifies both "damage " and "harm." To interpret § 1922 otherwise would permit the reader to conclude that damage must be imminent and physical, while harm need not be either imminent or physical. This strained interpretation defies common sense.
By contrast, when addressing the State's burden of proof in a subsequent child-custody proceeding, Congress specifically intended "serious emotional or physical damage " as the criteria. See 25 U.S.C.§ 1912(e). The distinction between the§ 1922 standard and the § 1912 standard was intentional. The court's "analysis begins with the language of the statute....And where the statutory language provides a clear answer, it ends there as well." Hughes
6

Case 5:13-cv-05020-JLV Document 301 Filed 12/15/16 Page 7 of 7 PageID #: 6691 Aircraft Co. v. Jacobson, 525 U.S.432, 438 (1999). The court finds Congress intended§ 1922 to be limited solely to "imminent physical damage or harm " in determining whether to initiate or terminate emergency proceedings.
ORDER
Based on the above analysis, it is ORDERED that defendant Vargo's motion to strike (Docket 268) is denied. IT IS FURTHER ORDERED that plaintiffs' motion for partial summai:y judgment (Docket 261) is granted. IT IS FURTHER ORDERED that 25 U. S.C.§ 1922 does not permit consideration of "emotional damage or harm " in§ 1922 emergency proceedings under 25 CFR part 23. Dated December 15, 2016.
BY THE COURT:
'!o __
7

 
 Case 5:13-cv-05020-JLV Document 303 Filed 12/15/16 Page 1 of 8 PageID #: 6719

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

OGLALA SIOUX TRIBE and ROSEBUD SIOUX TRIBE, as parens patriae, to protect the rights of their tribal members; MADONNA PAPPAN, and LISA YOUNG, individually and on behalf of all other persons similarly situated,
Plaintiffs,
vs.
LISA FLEMING; MARK VARGO; HONORABLE CRAIG PFEIFLE; and LYNNE A. VALENTI, in their official capacities,
Defendants.

CIV. 13-5020-JLV DECLARATORY JUDGMENT

Incorporating the order of March 30, 20 15 (Docket 150), the order of February 19, 20 16 (Docket 217), and the court's orders of December 15, 2016, (Dockets 30 1 and 302), for good cause shown and pursuant to the court's inherent equitable authority, the court enters the following declaratory judgment.
IT IS ORDERED, ADJUDGED AND DECREED that pursuant to the Indian Child Welfare Act1 and the Due Process Clause of the Fourteenth Amendment,

i25 U. S. C. § 1901 et seq. ("ICWA").

Case 5:13-cv-05020-JLV Document 303 Filed 12/15/16 Page 2 of 8 PageID #: 6720
the following rights exist for the benefit of Indian children, parents, custodians and tribes in 48-hour hearings2 and all subsequent emergency proceedings:3
THE RIGHT TO ADEQUATE NOTICE 1. The ICWA affidavit must state with sufficient detail the facts4 which
justify the emergency removal of an Indian child5 from its parent or custodian and the facts which warrant the continued separation of a child from its parent or custodian to "prevent imminent physical damage or harm to the child;"6
2SDCL § 26-7 A-14 directs "no child may be held in temporary custody longer than forty-eight hours . . . excluding Saturdays, Sundays, and court holidays, unless a . . . petition has been filed . . . and the court orders longer custody during a noticed hearing . . . . " These proceedings are commonly referred to as a "48-hour hearing."
3"Emergency proceeding means and includes any court action that involves an emergency removal or emergency placement of an Indian child. " 25 CFR § 23.2 (December 12, 2016). "These proceedings are distinct from other types of 'child-custody proceedings' under [ICWA]. " Executive Summary to the Department of the Interior's regulations implementing ICWA, 81 Fed. Reg. 38778-38876, 38793 (June 14, 2016) ("Executive Summary").
4At this point these are only "alleged facts" until proven during a 48-hour hearing but will be referred to as "facts" unless otherwise indicated.
sAll references to "child(ren)," "parent(s)," and "custodian(s)" will mean Indians as that term is defined by 25 U.S.C. § 1903(3).
625 U. S.C. § 1922. "[Section] 1922 does not permit consideration of 'emotional damage or harm' in § 1922 emergency proceedings under 25 CFR part 23." (Docket 301 at p. 7).
2

Case 5:13-cv-05020-JLV Document 303 Filed 12/15/16 Page 3 of 8 PageID #: 6721
2. The petition for temporary custody ("petition") must: a. state what documents, if any, are incorporated by reference and copies of all incorporated documents7 must be attached to the petition; b. describe that the purpose of the petition is to seek continued temporary custody of a child with the South Dakota Department of Social Services ("DSS"); c. advise that the State has the burden to prove by a preponderance of the evidence that continued removal is necessary to prevent imminent physical damage or harm to the child; d. advise the parent or custodian of the possible immediate and ultimate consequences of the proceeding; e. advise the parent or custodian of the right to request that the state proceedings be transferred to tribal court;B f. advise that if the parent or custodian is indigent, the court will appoint counsel and will grant a continuance, not to exceed 24
7If the incorporated document is a police report subject to the provisions of SDCL § 26-7A-29, the States Attorney or his designated deputy must file a written motion or make an oral motion to the court permitting the disclosure of the police report to the Indian parent or custodian and their attorney.
8As required by 25 U.S.C. § 191 l(b).
3

Case 5:13-cv-05020-JLV Document 303 Filed 12/15/16 Page 4 of 8 PageID #: 6722
hours, to enable counsel to become familiar with the facts of the case and confer with the parent or custodian;9 and g. state that the parent or custodian and their attorney have the following rights at the 48-hour hearing: 1. to contest the allegations in the petition; 2. to require the State to present evidence in support of the
petition; 3. to cross-examine the State's witnesses and the preparers of
any documents presented to the court; and 4. to subpoena witnesses and present testimony. 3. The parent or custodian and tribe must be given a copy of the ICWA affidavit and the petition at the earliest practical time but in no event later than the commencement of the 48-hour hearing; and 4. At the commencement of the 48-hour hearing, on the record the court must: a. state what documents have been provided to the court and confirm that copies of the documents have been given to the parent or custodian and tribe;
9"Jn any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding." 25 U. S.C. § 1912(b).
4

Case 5:13-cv-05020-JLV Document 303 Filed 12/15/16 Page 5 of 8 PageID #: 6723
b. provide a clear statement of the purpose of the proceeding and the possible immediate and ultimate consequences of the hearing;
c. advise of the right to counsel and appoint counsel if the parent or custodian is indigent and requests the assistance of counsel;
d. grant a continuance, not to exceed 24 hours, to permit counsel to prepare and consult with the parent or custodian and tribe; and
e. state to the parent or custodian and tribe that they have the certain rights with respect to the petition, namely: 1. to request that the State proceedings be transferred to tribal court; 2. to contest the allegations in the petition; 3. to require the State to present sworn testimony in support of the petition; 4. to cross-examine the State's witnesses; 5. to subpoena and present witnesses in opposition to the petition; 6. to require the State to prove by a preponderance of the evidence presented during the 48-hour hearing that continued removal of a child is necessary to prevent imminent physical damage or harm to the child; and
5

Case 5:13-cv-05020-JLV Document 303 Filed 12/15/16 Page 6 of 8 PageID #: 6724
7. to require the State and the DSS to use active effortslo to reunite the family. THE RIGHT TO PRESENT EVIDENCE
1. Parents, custodians and tribes have the right to subpoena witnesses and must be permitted to present sworn testimony and other evidence during a 48-hour hearing; and
2. Parents, custodians and tribes have the right to subpoena any person who provided information in support of or in contradiction to the ICWA affidavit or petition. THE RIGHT TO CROSS-EXAMINE
1. Parents, custodians and tribes have the right to cross-examine witnesses including the DSS child protection services staff member who signed the ICWA affidavit as well as all other witnesses whose statements form the factual basis for any document submitted to the court for consideration during the 48-hour hearing. THE RIGHT TO COUNSEL
1. If indigent, parents and custodians have the right to the assistance of court-appointed counsel; and
lO"Any party seeking to effect a foster care placement of ... an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 25 U.S. C. § 1912(d). See also 23 CFR § 23.2 (December 12, 20 16) which defines "active efforts."
6

Case 5:13-cv-05020-JLV Document 303 Filed 12/15/16 Page 7 of 8 PageID #: 6725
2. If counsel is requested, but not immediately available, or if counsel is appointed, counsel may request the 48-hour hearing be continued for a period of time not to exceed 24 hours, to permit the parent, custodian and tribe and counsel to prepare for the hearing. THE RIGHT TO A DECISION BASED ON THE EVIDENCE PRESENTED AT THE HEARING
1. The decision of the State court must be based solely on testimony and evidence presented during the 48-hour hearing;
2. The States Attorney's presentation must include testimony showing the active efforts of DSS to reunify the family following the emergency removal or placement; and
3. The decision of the State court must be articulated on the record and include specific findings as to whether DSS engaged in active efforts to reunify the family and any reason authorized by § 1922 that continued placement with DSS is necessary to prevent imminent physical damage or harm to the child.
THE 48-HOUR HEARING MUST USE THE § 1922 STANDARD 1. At the conclusion of a 48-hour hearing, a child must be restored
to the custody of its parent or custodian unless the State proved by a preponderance of the evidence that continued custody with DSS is necessary to prevent imminent physical damage or harm to the child.
7

Case 5:13-cv-05020-JLV Document 303 Filed 12/15/16 Page 8 of 8 PageID #: 6726
DSS MUST USE THE § 1922 STANDARD IN DETERMINING WHEN TO RETURN AN INDIAN CHILD TO THE HOME
1. In the event a temporary custody order is entered at the conclusion of a 48-hour hearing, DSS shall immediately report to the court that the justification for the temporary custody order has ended because returning the child to its parent or custodian will not place the child at imminent risk of physical damage or harm; and
2. In the event a temporary custody order is entered at the conclusion of a 48-hour hearing, the court shall immediately return the child to its parent or custodian as soon as justification for the temporary custody order has ended because returning the child will not place the child at imminent risk of physical damage or harm.
IT IS FURTHER ORDERED that the court retains jurisdiction for the purpose of enforcing and modifying this declaratory judgment and for the purpose of granting additional relief as may be necessary and appropriate.
Dated December 15, 20 16.

JEF

�5 IKEN

CHIEF JUDGE

8

 
 Case 5:13-cv-05020-JLV Document 304 Filed 12/15/16 Page 1 of 8 PageID #: 6727

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

OGLALA SIOUX TRIBE and ROSEBUD SIOUX TRIBE, as parens patriae, to protect the rights of their tribal members; MADONNA PAPPAN, and LISA YOUNG, individually and on behalf of all other persons similarly situated,
Plaintiffs,
vs.
LISA FLEMING; MARK VARGO; HONORABLE CRAIG PFEIFLE; and LYNNE A. VALENTI, in their official capacities,
Defendants.

CIV. 13-5020-JLV PERMANENT INJUNCTION

Incorporating the order of March 30, 2015 (Docket 150), the order of February 19, 2016 (Docket 217), the orders of December 15, 2016 (Dockets 301 and 302), and the declaratory judgment of December 15, 2016 (Docket 303), for good cause shown and pursuant to the court's inherent equitable authority, it is
ORDERED that defendants Lisa Fleming, Mark Vargo and Lynne A. Valenti, in their official capacities, are hereby immediately and permanently restrained and enjoined from engaging in the following activities:
1. Violating the constitutional rights of the plaintiffs1 guaranteed by the Due Process Clause of the Fourteenth Amendment;

1"Plaintiffs" include the class members certified by the court's order of January 28, 2014. (Docket 70 at pp. 14-15).

Case 5:13-cv-05020-JLV Document 304 Filed 12/15/16 Page 2 of 8 PageID #: 6728
2. Violating the statutory rights of the plaintiffs guaranteed by the Indian Child Welfare Act ("ICWA"), 25 U. S.C. § 1901 et seq., and particularly those rights guaranteed by 25 U. S. C. § 1922; and
3. Violating the constitutional and statutory rights of the plaintiffs as set out in the Declaratory Judgment entered on December 15, 2016, (Docket 303) and restated herein pursuant to Fed. R. Civ. P. 65(d)(l((C).
IT IS FURTHER ORDERED that defendants Lisa Fleming and Lynne A. Valenti, in their official capacities, are immediately and permanently required to comply with the following in all 48-hour hearings2 involving Indian children3, parents, custodians and tribes and in all subsequent emergency proceedings:4
2SDCL § 26-7 A-14 directs "no child may be held in temporary custody longer than forty-eight hours. . . excluding Saturdays, Sundays, and court holidays, unless a . . . petition has been filed. . . and the court orders longer custody during a noticed hearing . . . ." These proceedings are commonly referred to as a "48-hour hearing."
3All references to "child(ren)," "parent(s),'' and "custodian(s)" will mean Indians as that term is defined by 25 U. S. C. § 1903(3).
4"Emergency proceeding means and includes any court action that involves an emergency removal or emergency placement of an Indian child. " 25 CFR § 23. 2 (December 12, 2016). "These proceedings are distinct from other types of 'child-custody proceedings' under [ICWA]. " Executive Summary to the Department of the Interior's regulations implementing ICWA, 81 Fed. Reg. 38778-38876, 38793 (June 14, 2016).
2

Case 5:13-cv-05020-JLV Document 304 Filed 12/15/16 Page 3 of 8 PageID #: 6729
1. The ICWA affidavit must state with sufficient detail the facts5 which justify the emergency removal of a child from its parent
or custodian and the facts which warrant the continued
separation of a child from its parent or custodian to "prevent
imminent physical damage or harm to the child;"6
2. To use active efforts7 to reunite the family; and 3. In the event a temporary custody order is entered at the
conclusion of a 48-hour hearing, the South Dakota Department of Social Services shall immediately report to the State court that the justification for the temporary custody order has ended because returning the child to its parent or custodian will not place the child at imminent risk of physical damage or harm. IT IS FURTHER ORDERED that defendant Mark Vargo, in his official
capacity, is immediately and permanently required to comply with the following
in all 48-hour hearings involving Indian children, parents, custodians and
tribes, and in all subsequent emergency proceedings:
sAt this point these are only "alleged facts" until proven during a 48-hour hearing but will be referred to as "facts" unless otherwise indicated.
625 U. S. C. § 1922. "[Section] 1922 does not permit consideration of 'emotional damage or harm' in § 1922 emergency proceedings under 25 CFR part 23. " (Docket 301 at p. 7).
7"Any party seeking to effect a foster care placement of .. . an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 25 U. S. C. § 1912(d). See also 23 CFR § 23. 2 (December 12, 2016) which defines "active efforts. "
3

Case 5:13-cv-05020-JLV Document 304 Filed 12/15/16 Page 4 of 8 PageID #: 6730

1.

The ICWA affidavit must state with sufficient detail the facts

which justify the emergency removal of a child from its parent

or custodian and the facts which warrant the continued

separation of a child from its parent or custodian to prevent

imminent physical damage or harm to the child;

2. The petition for temporary custody ("petition") must:

a. state what documents, if any, are incorporated by

reference and copies of all incorporated documents8

must be attached to the petition;

b. describe that the purpose of the petition is to seek

continued temporary custody of a child with the South

Dakota Department of Social Services ("DSS");

c. advise that the State has the burden to prove by a

preponderance of the evidence that continued removal

is necessary to prevent imminent physical damage or

harm to the child;

d. advise the parent or custodian of the possible

immediate and ultimate consequences of the

proceeding;

81f the incorporated document is a police report subject to the provisions of SDCL § 26-7A-29, the States Attorney or his designated deputy must file a written motion or make an oral motion to the court permitting the disclosure of the police report to the Indian parent or custodian and their attorney.

4

Case 5:13-cv-05020-JLV Document 304 Filed 12/15/16 Page 5 of 8 PageID #: 6731
e. advise the parent or custodian of the right to request that the state proceedings be transferred to tribal court; 9
f. advise that if the parent or custodian is indigent, the court will appoint counsel and will grant a continuance, not to exceed 24 hours, to enable counsel to become familiar with the facts of the case and confer with the parent or custodian; 10 and
g. state that the parent or custodian and their attorney have the following rights at the 48-hour hearing: 1. to contest the allegations in the petition; 2. to require the State to present evidence in support of the petition; 3. to cross-examine the State's witnesses and the preparers of any documents presented to the court; and 4. to subpoena witnesses and present testimony.
3. The parent or custodian and tribe must be given a copy of the ICWA affidavit and the petition at the earliest practical time
9As required by 25 U. S. C. § 1911(b). 10"In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding." 25 U.S. C. § 1912(b).
5

Case 5:13-cv-05020-JLV Document 304 Filed 12/15/16 Page 6 of 8 PageID #: 6732
but in no event later than the commencement of the 48-hour hearing; 4. The parents, custodians and tribes have the right to subpoena witnesses and must be permitted to present sworn testimony and other evidence during a 48-hour hearing; 5. The parents, custodians and tribes have the right to subpoena any person who provided information in support of or in contradiction to the ICWA affidavit or petition; 6. The parents, custodians and tribes have the right to cross­ examine witnesses including the DSS child protection services staff member who signed the ICWA affidavit as well as all other witnesses whose statements form the factual basis for any document submitted to the court for consideration during the 48-hour hearing; 7. If indigent, parents and custodians have the right to the assistance of court-appointed counsel; 8. If counsel is requested, but not immediately available, or if counsel is appointed, counsel may request the 48-hour hearing be continued for a period of time not to exceed 24 hours, to permit the parent, custodian and tribe and counsel to prepare for the hearing;
6

Case 5:13-cv-05020-JLV Document 304 Filed 12/15/16 Page 7 of 8 PageID #: 6733

9.

The decision of the State court must be based solely on

testimony and evidence presented during the 48-hour

hearing;

10. The States Attorney's presentation must include testimony

showing the active efforts of DSS to reunify the family

following the emergency removal or placement;

11. The decision of the State court must be articulated on the

record and include specific findings as to whether DSS

engaged in active efforts to reunify the family and any reason

authorized by § 1 922 that continued placement with DSS is

necessary to prevent imminent physical damage or harm to

the child;

12. At the conclusion of a 48-hour hearing, a child must be

restored to the custody of its parent or custodian unless the

State proved by a preponderance of the evidence that

continued custody with DSS is necessary to prevent imminent

physical damage or harm to the child;

13. In the event a temporary custody order is entered at the

conclusion of a 48-hour hearing, DSS shall immediately

report to the State court that the justification for the

temporary custody order has ended because returning the

7

Case 5:13-cv-05020-JLV Document 304 Filed 12/15/16 Page 8 of 8 PageID #: 6734
child to its parent or custodian will not place the child at imminent risk of physical damage or harm; and 1 4. In the event a temporary custody order is entered at the conclusion of a 48-hour hearing, the State court shall immediately return the child to its parent or custodian as soon as justification for the temporary custody order has ended because returning the child will not place the child at imminent risk of physical damage or harm. IT IS FURTHER ORDERED that this permanent injunction is binding upon defendants' officers, agents, employees, attorneys and upon those persons in active concert or participation with them who receive actual notice of this order. IT IS FURTHER ORDERED that the court retains jurisdiction for the purpose of enforcing and modifying this permanent injunction and for the purpose of granting additional relief as may be necessary and appropriate. Dated December 15, 2016.
BY THE COURT:

CHIE

GE

8

 
 Case 5:13-cv-05020-JLV Document 384 Filed 01/16/20 Page 1 of 7 PageID #: 15120

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

OGLALA SIOUX TRIBE and ROSEBUD
SIOUX TRIBE, as parens patriae^ to protect the rights of their tribal members; MADONNA PAPPAN, and LISA YOUNG,individually and on behalf of all other persons similarly situated.
Plaintiffs,
vs.
LISA FLEMING and LAURIE GILL,in their official capacities,
Defendants.

CIV. 13-5020-JLV

INTRODUCTION
On January 31, 2018, plaintiffs filed an amended complaint seeking declaratory and injunctive relief. (Docket 353). As a result of the decision in Oglala Sioux Tribe v. Fleming.904 F.3d 603(8th.Cir. 2018), only claims IV and V remain.1 Defendants Lisa Fleming, Regional Manager for the South Dakota Department of Social Services Division of Child Protection Services in Region 1, Pennington County, Rapid City, South Dakota, and Laurie Gill, Secretary of the South Dakota Department of Social Services,^ (the "DSS Defendants") filed a

iplaintiffs acknowledge this reality. (Docket 370 at p. 1). The parties informally agreed claim III is moot based on the Eighth Circuit's decision. Because abstention applies equally to claim III it is dismissed without
prejudice.
^Laurie Gill was substituted for M. Gregory DeSautel pursuant to Fed. R. Civ. P. 25(d) on July 9, 2019.

Case 5:13-cv-05020-JLV Document 384 Filed 01/16/20 Page 2 of 7 PageID #: 15121
motion and a renewed motion to dismiss claims IV and V of plaintiffs' amended
complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). (Dockets 364 85
380). The DSS Defendants move the court to "abstain[] from exercising
jurisdiction under principles of federal-state comity articulated in Younger v. .
Harris.401 U.S. 37(1971) and later cases, to include [Oglala Sioux Tribe. 904
F.3d 603]." (Docket 364 at p. 1). Plaintiffs resist the DSS Defendants'
motion. (Dockets 370 85 382). For the reasons stated in this order, the DSS
\
Defendants' motion is granted.
ANALYSIS
Entitled "Failure To Train And Supervise DSS Staff," claim IV of plaintiffs'
amended complaint alleges:
The DSS Defendants have a policy and practice, as evidenced by the facts in the record, of failing to adequately train and supervise their staff to ensure that Indian children placed into DSS custody are returned to their families"immediately[unless continued custody is] necessary to prevent imminent physical damage or harm to the child." See 25 U.S.C. § 1922. These failures, which involve actions taken by DSS staffduring and after 48-hour hearings,cause plaintiffs to suffer irreparable injury and violate rights secured to plaintiffs by the Due Process Clause of the Fourteenth Amendment and by the Indian Child Welfare Act ("ICWA"). Relief is sought pursuant to 42 U.S.C. § 1983.
(Docket 353 T[ 130)(capitalization omitted). Claim V entitled "Failure to End
Placement When The Reasons for Placement Have Ended," alleges:
The DSS Defendants have a policy and practice, as evidenced by the facts in the record, of failing to end the out-of-home placement of Indian children when the reasons given at the 48-hour hearing for such placement have ended, thereby violating rights secured to plaintiffs by the Due Process Clause of the Fourteenth Amendment

Case 5:13-cv-05020-JLV Document 384 Filed 01/16/20 Page 3 of 7 PageID #: 15122
and by ICWA and causing plaintiffs to suffer irreparable injury. Relief is sought pursuant to 42 U.S.C.§ 1983.
Id. If 131 (capitalization omitted).
In their prayer for relief, plaintiffs seek the following:
[A] declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 that declares as a matter oflaw that... DSS Defendants'policy and practice of failing to adequately train and supervise their staff as set forth in paragraph 130 above violates the Due Process Clause and ICWA;.and ... DSS Defendants'policy and practice offailing to.end the out-of-home placement of Indian children when the. reasons given at the 48-hour hearing for such placement have ended [as set forth in paragraph 131 above] violates the Due Process Clause and ICWA[; and]
[P]reliminaiy and permanent injunctive relief pursuant to F. R. Civ. P. Rule 65,enjoining the Defendants and all persons in concert with them, and their successors in office, . . . with respect to the DSS Defendants, from failing or refusing to adequately train and supervise their staff as set forth in paragraph 130 above; and . . . with respect to the DSS Defendants, from failing or refusing to end the out-of-home placement of Indian children when the reasons given at the 48-hour hearing for such placement have ended [as set forth in paragraph 131 above].
Id. at pp. 40-41.
The DSS Defendants argue both claims should be dismissed because
"[t]he motivating force behind Younger^ abstention is the promotion of comity
between state and federaljudicial bodies." (Docket 365 at p. 4)(referencing
Aaron v. Target Corp., 357 F.3d 768. 774(8th Cir. 2004)). The DSS
Defendants contend the three factors identified in Middlesex County Ethics
Commission v. Garden State Bar Association, 457 U.S. 423,432(1982),
3Youngerv. Harris. 401 U.S. 37 (1971),
3

Case 5:13-cv-05020-JLV Document 384 Filed 01/16/20 Page 4 of 7 PageID #: 15123

"should lead to abstention under Youngerf.l" Id. They identify those factors

as:

(1) the existence of an ongoing state judicial proceeding,

(2) which implicates important state interests, and

(3) which provides an adequate opportunity to raise constitutional challenges.

Id. (referencing Aaron,.357 F.3d at 774). . The DSS Defendants proceed to

analyze each of those factors. Id. at pp. 4-10.

Plaintiffs' response argues the DSS Defendants' motion should be denied

"because the Younger abstention doctrine is inapplicable to [claims]IV and V."

(Docket 370 at p. 2). Plaintiffs contend the remaining claims("challenge

administrative policies and practices—notjudicial policies and practices—and

the remedies sought by Plaintiffs require no intervention by this Court into a

state judicial process." Id^(emphasis in original). Plaintiffs assert this is a

significant difference. Plaintiffs argue:

' '

-

The prior claims involved activities that occurred during the 48-hour , hearing, such as denying parents in those hearings with an opportunity to present evidence, to subpoena witnesses, and to confront the caseworker accusing them of abuse and neglect. ...In contrast, the current claims involve activities that occur after the 48-hour hearing, while DSS staff deterrhine whether the children placed into their custody at the 48-hour hearing should be returned
to their families.

I^ at p.3(emphasis in original). Plaintiffs contend "whereas the prior claims

required this Court to issue a remedial order changing JudiciaZ procedures, the

remedial order Plaintiffs request under [claims] IV and V would only require

Case 5:13-cv-05020-JLV Document 384 Filed 01/16/20 Page 5 of 7 PageID #: 15124
this Court to change administrative procedures." (emphasis in original). Instead of"implicatpng] the state judicial system," plaintiffs argue claims "IV and V challenge the inexcusable delays taken by DSS in determining when DSS should return the child to the home. These delays are entirely the fault ofDSS,not the Circuit Court[.]" l± at p. 4. Plaintiffs submit permitting them to have a remedy against the DSS Defendants "will not undermine The national policy forbidding federal courts to stay or enjoin pending state court proceedings.'" (citing Younger, 401 U.S. at 41). "[I]f Plaintiffs prevail," they contend "this Court will direct its remedial order solely against agency officials and direct them to undertake appropriate measures to adequately train and supervise their staff in order to substantiedly reduce, if not eliminate, the unnecessary and harmful delays occurring in virtually every aspect of the post48-hour hearing administrative process." at p. 8.
In their reply brief, the DSS Defendants contend plaintiffs' argurnent
misses the point.
"The question under the abstention doctrine is not whether the
claims have meritsuch thatthe exercise offederaljurisdiction would
/support the state's interest' in affording its residents protection
under the law. The issue is whether the federal court should
refrain from exercising jurisdiction and allow the claims to be resolved in the state proceedings. A federal court order dictating what procedures must be used in an ongoing state proceeding would . 'interfere' with that proceeding by inhibiting 'the legitimate functioning ofthe individual state'sjudicial system.'" (Docket 371 at p. 5)(citing Oglala Sioux Tribe,904 F.3d at 611). The DSS Defendants assert"the imposition of any injunction puts DSS officials in the

Case 5:13-cv-05020-JLV Document 384 Filed 01/16/20 Page 6 of 7 PageID #: 15125

position of being subject to potential sanctions regarding DSS involvement in

the judicial process in 'ongoing'temporaiy custody proceedings."

An

injunction, they argue,"'would disrupt the normal course of proceedings in

state courts via resort to the federal suit for determination of the claim ab

initio,'just as would a request for injunctive relieffrom an ongoing state

proceeding." at pp. 5-6 (referencing Qglala Sioux Tribe, 904 F.3d at 612).

Plaintiffs'argument that they seek administrative changes notjudicial

changes is a distinction without a difference. The relief plaintiffs seek in

claims IV and V "would dictate a host of procedural requirements for the

ongoing state proceedings." Qglala Sioux Tribe. 904 F.3d at 611. An

injunction from this court "dictating what procedures [the DSS Defendants and

their employees must follow]... in an ongoing state proceeding would

'interfere' with that proceeding by inhibiting 'the legitimate functioning of the

individual state's judicial system.'" Id.

Under Qglala Sioux Tribe,"[tjhe question ...is not whether [plaintiffs']

claims have merit such that the exercise offederaljurisdiction would 'support

the state's interest'in affording its residents protection" under the Due Process

Clause.and the Indian Child Welfare Act, 25 U.S.C.§ 1901 et seq. I^

'"[B]ecause an injunction against acts which might occur in the course of

future [civil] proceedings would necessarily impose continuing obligations of compliance,'alleged noncompliance with the injunction would give rise to

contempt proceedings in federal court." I^(citing Q'Shea v. Littleton, 414

Case 5:13-cv-05020-JLV Document 384 Filed 01/16/20 Page 7 of 7 PageID #: 15126
U.S. 488,501-02(1974)). "[S]uch a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state [civil] proceedings is in sharp conflict with the principles of equitable restraint'that the Court recognized in Younger and its progeny." Id.(citing O'Shea.414 U.S. at 502). Plaintiffs' claims seek to impose enhanced administrative procedures on the DSS Defendants and their employees which are an intrinsic part of the judicial proceedings which Oglala Sioux Tribe addressed. Under Qglala Sioux Tribe, the court is compelled to graint defendants' motion and renewed motion
to dismiss claims IV and V. ORDER
Based on the above analysis, it is
ORDERED that the DSS Defendants' motion and renewed motion to
dismiss(364 86 380) are granted. IT IS FURTHER ORDERED that claim III, claim IV and claim V of
plaintiffs'amended complaint(Docket 353 130 85 131) are dismissed
without prejudice. Dated January 16, 2020.
BY THE COURT:
JEFF^yV Df
UNITED STATES DISTRICT JUDGE