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Tribe v. Fleming

United States District Court, D. South Dakota, Western Division

December 15, 2016

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,
v.
LISA FLEMING; MARK VARGO; HONORABLE CRAIG PFEIFLE; and LYNNE A. VALENTI, in their official capacities, Defendants.

          PERMANENT INJUNCTION

          JEFFREY L. VIKEN chief judge.

         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 plaintiffs[1] guaranteed by the Due Process Clause of the Fourteenth Amendment;
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 hearings[2] involving Indian children, [3] parents, custodians and tribes and in all subsequent emergency proceedings:[4]

1. The ICWA affidavit must state with sufficient detail the facts[5] 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 efforts[7] 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:

         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 documents[8] must ...

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