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
December 15, 2016, the court entered three orders and a
permanent injunction. (Dockets 301-304). On January 13, 2017,
the defendants appealed the orders and permanent injunction
as well as previous orders of the court. (Dockets 309, 312
& 321). At the same time, Defendant Mark Vargo fled a
motion to stay portions of the declaratory judgment and to
suspend portions of the permanent injunction pending appeal
("motion to stay''). (Docket 310). The other
defendants join in Mr. Vargo's motion to stay. (Docket
315 & 322). Plaintiffs oppose the motion to stay. (Docket
331). For the reasons stated below, the motion to stay is
Vargo moves the court to stay "portions [of] the
Declaratory Judgment . . . and suspend portions [of] the
Permanent Injunction . . . pending appeal . . . ."
(Docket 310 at p. 1) (referencing Dockets 303 & 304).
Specifically, Mr. Vargo asks the court to stay the portions
of the declaratory judgment and suspend the portions of the
permanent injunction which do not permit the defendants to
consider imminent emotional damage or harm in emergency
proceedings brought under 25 U.S.C. § 1922. (Docket 311
at p. 2). Mr. Vargo claims the court's decision
"fails to protect Indian children from imminent
emotional damage or harm." Id. at pp. 2-3.
Vargo argues the court's decision to limit§ 1922
emergency removal considerations to "imminent physical
damage or harm" is at odds with the recently published
Department of the Interior Executive Summary to its Final
Rule located at 25 CFR § 23. Id. at p. 4
(referencing 81 Fed. Reg. 38778 (June 14, 2016)). He contends
the Executive Summary "rejected the proposed definition
of 'present or impending risk of serious bodily injury or
death' because that definition excluded 'neglect and
emotional or mental (psychological) harm.'"
Id. at p. 5 (parentheses in original; emphasis
omitted) (referencing 81 Fed. Reg. at 38794). He claims
"the statutory phrase 'imminent physical damage or
harm' (the § 1922 emergency removal standard)
'focuses on the child's health, safety, and
welfare' and that Congress intended the statutory phrase
to include more than just 'bodily injury or death.'
" Id. (parentheses in original; emphasis
omitted) (referencing 81 Fed. Reg. at 38794).
Vargo contends the Guidelines for Implementing the Indian
Child Welfare Act issued by the Department of the Interior
similarly intend that the "imminent physical damage or
harm" provision of§ 1922 includes situations where
a "child is immediately threatened with harm" or
where there is "an immediate threat to the safety of the
child." Id. at p. 6 (emphasis omitted)
(referencing Guidelines C.2 and C.3). Mr. Vargo also believes
the Frequently Asked Questions section of the Final Rule
Proceedings of June 17, 2016, extends § 1922 to include
"any 'endangerment of the child's health,
safety, and welfare, not just bodily injury or
death.'" Id. at p. 7 (emphasis omitted)
(referencing Frequently Asked Questions at p. 6). Based on
this analysis, Mr. Vargo argues "[t]he § 1922
standard includes more than just physical injury and this
Court's ruling that the standard is solely physical
damage or physical harm is incorrect." Id. Mr.
Vargo asserts that because this issue is "one of first
impression .... [, ] [t]he magnitude of this Court's
ruling warrants a stay to preserve the status quo until the
Eighth Circuit rules on this question of law."
Id. at p. 8.
Vargo claims "[a]ll Defendants will suffer irreparable
harm without a stay ... . [and that] [p]rohibiting Defendants
from protecting Indian children from imminent emotional harm
when state law allows Defendants to protect non-Indian
children from imminent emotional harm poses Equal Protection
implications." Id. at p. 9 (referencing SDCL
§ 26-7A-18). He further asserts "Plaintiffs, as
parents or custodians of Indian children, will not be
substantially injured if their children are protected from
imminent emotional harm pursuant to ICWA's emergency
proceedings and protected from being returned to environments
where they may suffer imminent emotional harm during the
pendency of this appeal." Id. at p. 10.
Finally, Mr. Vargo argues "[t]he public interest heavily
favors a stay. Returning Indian children to environments in
which they may suffer imminent emotional harm is unsafe and
Indian children will be irreparably harmed. There is a strong
public interest [in] protecting children from such
harm." Id. at p. 11. He concludes "[i]t is
profoundly wrong to fail to protect Indian children from
imminent emotional harm during emergency proceedings and the
public's interest in protecting Indian children during
the pendency of the appeal is great." Id.
response, the plaintiffs argue "Federal courts do not
(and cannot) issue injunctions unless necessary to prevent
irreparable harm . ... In most instances, then, it would be
inherently inconsistent to grant an injunction and then stay
its application." (Docket 331 at p. 1) (parentheses in
original). Contrary to Mr. Vargo's argument, plaintiffs
submit "the Court's ruling faithfully applied and
enforced § 1922 of the Indian Child Welfare Act, which
provides greater protection to Indian children in emergency
custody proceedings than non-Indian children, not less
protection." Id. at p. 3 (emphasis omitted).
Plaintiffs argue "[§] 1922 was enacted in order to
prevent" state social services caseworkers "from
using their [own] personal perception of 'emotional
harm' in deciding whether to remove Indian children from
their homes on an emergency basis." Id. at pp.
contend Mr. Vargo "will not suffer irreparable harm
absent a stay, either personally or in his official capacity.
Even if he may be considered to 'represent' the
interests of Indian children in custody proceedings, this
Court has specifically determined that the interests of
Indian children are best served by the enforcement of§
1922 in the manner that Congress intended." Id.
at p. 5. Plaintiffs argue that they and the Indian families
they represent will be harmed if a stay is granted: "Mr.
Vargo has been injuring Indian families and Indian tribes for
many years by his refusal to obey§ 1922. He should not
be allowed to continue inflicting those injuries . . . .
Congress has found that it is in the national interest to
adopt and enforce the Indian Child Welfare Act. Mr. Vargo has
shown no reason why he should be allowed to continue his
persistent violations of ICWA." Id. at p. 6.
determining whether to grant a stay pending an appeal, the
court considers the following factors: "(1) whether the
stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public
interest lies." Hilton v. Braunskill, 481 U.S.
770, 776 (1987). See also Reserve Mining
Co. v. United States, 498 F.2d 1073, 1076-77 (8th
Cir. 1974) (applying the same four factors to analyze a
motion for stay of a preliminary injunction under
Fed.R.Civ.P. 62 and Fed. R. App. P. 8). "A stay is not a
matter of right, even if irreparable injury might otherwise
result .... It is instead an exercise of judicial discretion,
and the propriety of its issue is dependent upon the
circumstances of the particular case. . . . The party
requesting a stay bears the burden of showing that the
circumstances justify an exercise of that discretion."
Nken v. Holder, 556 U.S. 418, 433-34 (2009)
(internal citations, quotation marks and brackets omitted).
For the reasons stated in the orders (Dockets 150, 217 and
301-303) resulting in the permanent injunction (Docket 304),
the court makes the following findings.
Mr. Vargo and the other defendants are not likely to succeed
on the merits of their appeal. Based on the well developed
record, the court found the defendants were violating 25
U.S.C. § 1922 and they have shown no intent to change
their conduct and fully comply with § 1922. See Dockets
150 at p. 44; 217 at pp. 20-21; 302 at pp. 7-17 & 21-24.
court considered the Executive Summary to the 2016 ICWA
regulations referenced by Mr. Vargo. See Docket 301
at pp. 5-6. That examination disclosed:
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 . . . ." 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 . . . ." 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 ...