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
defendants continue to disregard this court's March 30,
2015, partial summary judgment order. That order outlined the
defendants' violations of the rights of Indian children,
parents, custodians and tribes guaranteed by the Due Process
Clause of the Fourteenth Amendment and by the Indian Child
Welfare Act. Notwithstanding testimony confirming that South
Dakota Circuit Court Judges in Meade County, Brown County,
Hughes County and Minnehaha County are conducting adversarial
hearings in accord with the March 2015 order prior to the
extended removal of Indian children from their homes,
defendants refuse to reform their violative policies and
practices. The court repeatedly invited the defendants to
propose a plan for compliance with their constitutional and
statutory obligations but the defendants rejected that
order discusses the need and the authority fr this court to
impose remedies to vindicate plaintiffs' rights. Orders
for declaratory and injunctive relief are filed
simultaneously with this order.
March 21, 2013, plaintiffs filed this civil rights action
pursuant to 42 U.S.C. § 1983 asserting defendants'
policies, practices and procedures relating to the removal of
Native American children from their homes during state court
48-hour hearings violate the Indian Child Welfare Act
("ICWA") and the Due Process Clause of the
Fourteenth Amendment. (Docket 1). Defendants denied
plaintiffs' claims. (Dockets 76, 80 8b 81).
11, 2014, plaintiffs filed two separate motions for partial
summary judgment. (Dockets 108 8b 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, on March 30,
2015, the court entered an order granting plaintiffs'
motions ("2015 order"). (Docket 150 at p. 44). By
the 2015 order, the court reserved ruling on plaintiffs'
request for declaratory and injunctive relief. Id On
August 17, 2016, a hearing was held to address
plaintiffs' prayer for relief ("remedies
hearing"). (Docket 277). For the reasons stated below,
plaintiffs' request for a declaratory judgment is
granted, plaintiffs' request for injunctive relief is
granted in part and plaintiffs' request for appointment
of a monitor is denied without prejudice as premature.
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 150 at p.
11). Both tribes have treaties with the federal government.
Id. The court granted parens patriae status
to both tribes. (Docket 69 at p. 17).
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. (Docket 150 at
p. 11). The court certified these individual plaintiffs as
class representatives for all similarly situated Indian
parents. (Docket 70 at pp. 14-15). The class of plaintiffs
includes "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." Id. at p. 14.
Lynne A. Valenti is the Secretary of the South Dakota
Department of Social Services
("DSS"). Id. Defendant Lisa Fleming is the
person in charge of DSS Child Protection Services
("CPS") for Pennington County, South
Dakota. In state court cases involving Ms. Pappan
and Ms. Young, CPS employees under their supervision signed
ICWA affidavits alleging the children of these Indian parents
were at risk of serious injury if the children remained at
home. (Docket 217 at p. 6).
Mark Vargo is the duly elected States Attorney for Pennington
County. (Docket 150 at p. 11). A Deputy States Attorney under
States Attorney Vargo's supervision prepares the
petitions for temporary custody for all ICWA cases. (Docket
217 at p. 6). Defendant Craig Pfeifle 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
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
25 U.S.C. § 1922.
January 2010, approximately one hundred 48-hour hearings
involving Indian childrenare held each year in Pennington County.
(Docket 150 at p. 12). In March 2015, the court found that
despite the clear intent of ICWA, the [Department of the
Interior] Guidelines and the S.D. Guidelines,  all of which
contemplate evidence will be presented on the record in open
court, Judge Davis relied on the ICWA affidavit and
petition for temporary custody which routinely are disclosed
only to him and not to the Indian parents, their attorney or
custodians." (Docket 150 at pp. 34-35). These
undisclosed documents are not subject to cross-examination or
challenge by the presentation of contradictory evidence.
Id. at p. 35. The practice of the state court was to
"authorize DSS 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 .... This authorization vests full
discretion in DSS to make the decision if and when an Indian
child may be reunited with the parents." Id.
(italics in original; internal citations omitted). The court
found this "abdication of judicial authority"
violated "the protections guaranteed Indian parents,
children and tribes under ICWA." Id.
March 2015 order, the court found the defendants violated
plaintiffs' due process rights under the Fourteenth
Amendment during the course of 48-hour hearings. (Docket 150
at pp. 36-42). The violations are summarized as follows: (1)
failing to appoint counsel in advance of the 48-hour hearing;
(2) failing to provide notice of the claims against Indian
parents, the issues to be resolved and the state's burden
of proof; (3) denial of the right to cross-examine adverse
witnesses; (4) denying Indian parents or custodians the right
to present evidence in their own defense; and (5) removing
Indian children on grounds not based on evidence presented in
the hearing. Id.
Defendants' Only Consistent Policy for Handling the ICWA
and Due Process Rights of Indian Children, Parents,
Custodians and Tribes is Defendants' Violation of Those
the August 17, 2016, remedies hearing, the court admitted the
transcripts of the deposition of Virgena Wieseler, Director
of the Division of Child Protection Services, and Cara Beers,
Program Specialist for Training, within the South Dakota
Department of Social Services. (Remedies Hearing Exhibits 1
and 2). Ms. Wieseler testified that following the 2015 order
and through the date of her July 20, 2016, deposition, CPS
made a decision not to apply the § 1922 standard in
training CPS staff. (Remedies Hearing Exhibit 1 at pp. 128:
15-133:25). Ms. Beers testified during her July 21, 2016,
deposition that DSS had not developed any new training for
its staff based on the 2015 order. (Remedies Hearing Exhibit
2 at p. 96: 15-21). During the remedies hearing, counsel
argued the DSS defendants were in full compliance with their
obligations under South Dakota state law and federal law but
offered no supporting evidence.
Attorney Vargo and Deputy States Attorney Roxanne Erickson
testified during the remedies hearing. Mr. Vargo acknowledged
having read plaintiffs' March 21, 2013, complaint
sometime after it was served. (Docket 286 at p. 33:22-24).
The complaint specifically alleged that at 48-hour hearings:
[Indian 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 (f) 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
(Docket 1 ¶ 51).
the defendants' motions to dismiss in a January 28, 2014,
order ("2014 order"), the court held that
"[o]ne 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 . . . . 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 petition and affidavit
are provided to the presiding judge and can at very little
cost be provided to Indian parents." (Docket 69 at pp.
Vargo testified that after reviewing the complaint and the
2014 order he felt the need to conduct his own research to
resolve the issues raised in plaintiffs' complaint.
(Docket 286 at pp. 36: 19-37:4). It was not until May 2014
that he concluded a copy of the petition for temporary
custody should be provided to Indian parents at the 48-hour
hearing. Id. at p. 36:8-18. It was 14 months after
the complaint was filed and 4 months after the 2014 order
that Mr. Vargo acknowledged this basic due process principle.
Yet even at the remedies hearing Mr. Vargo testified Indian
parents have no constitutional right to the petition for
temporary custody in advance of a 48-hour hearing so long as
they are informed about the content of the petition.
Id. at p. 43:24-25.
Vargo testified he never specifically examined the 2015 order
for the purpose of curing any constitutional deficiencies
occurring in 48-hour hearings. Id. at p. 46:4-9. He
had no explanation as to why he did not review the order and
discuss its content with Deputy States Attorney Roxanne
Erickson who handles most 48-hour hearings. Id. at
p. 49:5-25. He claims it was not until reading
plaintiffs' April 20, 2016, remedies brief that he became
aware of potential continuing ICWA violations. Id.
at pp. 50:18-51:4.
the remedies hearing on August 17, 2016, Mr. Vargo instructed
Ms. Erickson to change the petition for temporary custody to
include ICWA language, although he was not specific as to
what language would be included. Id. at p. 52:23-24.
He asserted he gave this directive even though he believed no
change in the petition was necessary since the ICWA affidavit
prepared by the CPS staff member contains language about
ICWA. Id. at p. 55: 18-20. Mr. Vargo insists it
would not be an appropriate remedy to require his office to
include the § 1922 standard for the removal of Indian
children in future petitions fr temporary custody.
Id. at p. 56: 6-7 8b 9-21.
Vargo testified he initiated a policy that regardless of the
outcome of a 48-hour hearing, a second hearing would be held
within 15 days. Id. at p. 59: 14-18. He could not
recall when this policy was initiated and did not testify
that the judges of the Seventh Judicial Circuit were
incorporating this second hearing into all ICWA proceedings.
Vargo acknowledged Ms. Erickson brought to his attention the
fact that South Dakota Circuit Court Judges in Meade County,
Brown County, Hughes County and Minnehaha County were
conducting adversarial 48-hour hearings. Id. at p.
63: 10-23. Other than this general knowledge, Mr. Vargo made
no inquiry of Ms. Erickson or the States Attorneys in those
counties to determine the impact adversarial 48-hour hearings
had on their courts' dockets. Id. at p. 69:
13-20. Mr. Vargo testified he did not make the inquiry
because he felt it would not be helpful since those counties
did not have the same number of 48-hour hearings involving
Indian families as did Pennington County. Id. at pp.
Erickson testified that since 2011 she has been the principal
Deputy States Attorney assigned in Pennington County to
handle 48-hour hearings. Id. at p. 73:5-7. She
testified that since June 2002 she has handled approximately
1, 000 abuse and neglect cases. Id. at p. 72:23-73:
10. She said the Pennington County Circuit Court typically
conducts 48-hour hearings every Monday at 1:30 p.m. and every
Thursday at 1 p.m. Id. at p. 73: 18-25. She
estimated there are about one hundred 48-hour hearings
involving Indian children each year and that approximately 50
percent of all 48-hour hearings in the county involve Indian
children. Id. at p. 74: 1-13. Ms. Erickson stated
that twice a week there could be from one to five 48-hour
hearings conducted. Id. at p. 110:6-10. If five
hearings are held, they can require a total of one hour of
court time. Id.
Erickson testified Circuit Judge Robert Gusinsky took over
all abuse and neglect proceedings in mid-January 2016.
Id. at p. 83:4-9. She indicated he was well aware of
this ICWA lawsuit and conducted his own legal research into
the issues raised by plaintiffs. Id. at pp. 84:
Erickson testified that around April 2016 Judge Gusinsky held
a meeting with her, Attorney Dana Hanna as counsel for
plaintiffs, and Attorney Daniel Leon of the Pennington County
Public Defender's Office to discuss 48-hour hearings and
ICWA. Judge Gusinsky requested briefing before
the meeting on a number of issues, including which standard
applied to 48-hour hearings: the South Dakota state standard
or the § 1922 standard. Id. at p. 75:8-14. In
the States Attorney's submission to Judge Gusinsky, Ms.
Erickson argued Cheyenne River Sioux ...