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,
LISA FLEMING; MARK VARGO; HONORABLE CRAIG PFEIFLE; and LYNNE A. VALENTI, in their official capacities, Defendants.
JEFFREY L. VIKEN, CHIEF JUDGE.
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
seek partial summary judgment against Defendant Vargo because
§ 1922 of the Indian Child Welfare Act
("ICWA") requires that "[t]he 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 hearings and subsequent emergency
proceedings 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 ¶¶ 2 & 3 and 270
¶¶ 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 of Indian custody cases, continued custody is sought
based exclusively on emotional damage." Id.
(references to the record omitted).
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.
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.
alternative, Mr. Vargo argues plaintiffs' motion must be
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" fom
"harm." Id. at p. 7. He contends this
would allow consideration of "emotional harm"
within the definition of harm. Id. at p. 8; see also
Docket 270 at p. 4 ¶ 2.
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).
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
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 proceedings . . . ." 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
appropriate Indian Tribe; or (3) Restoring the child to the
parent or Indian custodian." 25 CFR § 23.113(c)
(December 12, 2016).
"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.
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.
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 Aircraft Co. v.
Jacobson, 525 U.S. 432, 438 (1999). The court finds
Congress intended § 1922 ...