United States District Court, D. 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,
LUANN VAN HUNNIK; MARK VARGO; HON. JEFF DAVIS; and LYNNE A. VALENTI, in their official capacities, Defendants
For Oglala Sioux Tribe, as parens patriae, to protect the rights of their tribal members, Rosebud Sioux Tribe, as parens patriae, to protect the rights of their tribal members, Rochelle Walking Eagle, individually and on behalf of all other persons similarly situated, Madonna Pappan, individually and on behalf of all other persons similarly situated, Lisa Young, individually and on behalf of all other persons similarly situated, Plaintiffs: Dana Hanna, LEAD ATTORNEY, Rapid City, SD; Stephen L. Pevar, LEAD ATTORNEY, ACLU Foundation (Hartford, CT), Hartford, CT; Rachel E. Goodman, PRO HAC VICE, ACLU (New York, NY), New York, NY.
For Luann Van Hunnik, in their official capacities, Lynne A. Valenti, in their official capacities, Defendants: Robert L. Morris, LEAD ATTORNEY, Morris Law Firm, Belle Fourche, SD.
For Mark Vargo, in their official capacities, Defendant: J. Crisman Palmer, Sara Frankenstein, LEAD ATTORNEYS, Gunderson, Palmer, Nelson & Ashmore, LLP, Rapid City, SD.
For Hon. Jeff Davis, in their official capacities, Defendant: Ann F. Mines, Roxanne Giedd, Steven R. Blair, LEAD ATTORNEYS, Attorney General of South Dakota, Pierre, SD; Nathan R. Oviatt, LEAD ATTORNEY, Goodsell Quinn, LLP, Rapid City, SD.
For Judge Eklund, Judge Trimble, Judge Thorstensen, Judge Pfleifle, Judge Mandel, Interested Partys: Robert B. Anderson, LEAD ATTORNEY, May, Adam, Gerdes & Thompson, Pierre, SD.
JEFFREY L. VIKEN, CHIEF UNITED STATES DISTRICT JUDGE.
" 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." 
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 .... " 
Congress of the United States
" 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. " 
Supreme Court of the United States
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. 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 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. 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 (" DSS" ). LuAnn Van Hunnik is the person in charge of DSS Child Protection Services (" CPS" ) for Pennington County, South Dakota. CPS 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 Act 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 Pappan and Lisa Young, as class representatives for all similarly situated Indian parents.
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. 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;
[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 child custody proceedings against them in State agencies or courts." 
" The Indian 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 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-a-vis state authorities." Id. at 44-45.
Section 1912 of ICWA addresses the rights of Indian parents during any court proceeding. " In any involuntary proceeding in a State court ... the party seeking the foster care placement of ... an Indian 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 " to court-appointed counsel in any removal ... proceeding." Id. at § 1912(b). " Each party to a foster care placement ... under State law involving an Indian 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 the Indian 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 or Indian custodian is likely to result in serious emotional or physical damage to the child." Id. at § 1912(e). A " 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, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (internal references omitted).
" [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, 120 S.Ct. 2054, 147 L.Ed.2d 49 (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.
Plaintiffs filed this action asserting defendants' policies, practices and procedures relating to the removal of Native American children from their homes during state court 48-hour hearings violate ICWA and the Due Process Clause of the Fourteenth Amendment. (Docket 1). Defendants deny plaintif I s' 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 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 fcts 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In order to withstand a motion for summary judgment, 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).
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 to 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.
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 ¶ 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. ¶ 5.
Defendant Lynne A. Valenti is the Secretary of the South Dakota Department of Social Services (" DSS" ). Id. ¶ 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 affidavits alleging the children of these Indian parents were at risk of serious injury if the children remained at home. Id. ¶ 51.
Defendant Mark Vargo is the duly elected States Attorney for Pennington County. Id. ¶ 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. ¶ 11.
Approximately one hundred 48-hour hearings involving Indian children are held each year in the Seventh Circuit Court for Pennington County. (Docket 130 ¶ 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, he granted motions by the States Attorney and DSS for continued custody of all Indian children involved in those hearings. (Dockets 109 ¶ 1 & 131 ¶ 1).
Eight hundred twenty-three Indian children were involved in 48-hour hearings in Pennington County, South Dakota, during the years 2010 to 2013. (Docket ...