ATCE v. Piper B ATCE s website with further information can be found at:

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1 ATCE v. Piper Parties: (1) Plaintiffs Americans fr Tribal Curt Equality (ATCE) is a nnprfit rganizatin ut f Prir Lake, Minnesta, whse self-prclaimed missin is t prmte eliminating prejudice and discriminatin in the curt systems. 1 ATCE is an assciatin f individuals that seeks t infrm, advise, and unify individuals wh have r have had a spuse r intimate partner wh is a member f a tribe regarding discriminatry practices twards nn-members in family, child custdy, and child prtectin prceedings. James Nguyen, individually, and n behalf f his minr child A.N. He is a citizen f Minnesta residing in Hennepin Cunty, and is Amanda Gustafsn s husband, and father f their minr child A.N. He is nt a member f the Shakpee Mdewakantn Siux Cmmunity (SMSC), r any ther tribe, but he is a member f ATCE. Amanda Gustafsn and minr child A.N. are SMSC members. Michelle Steinhff, individually and n behalf f her minr child T.J. She is a citizen f Minnesta and resident f Dakta Cunty. She is nt a member f the SMSC r ther tribe, but she is a member f ATCE. (2) Defendants Emily Piper, in her fficial capacity as cmmissiner f the Minnesta Department f Human Services. She is respnsible fr the prmulgatin and disseminatin f Minnesta s Indian Child Welfare Manual. Sctt Cunty, Minnesta The Sctt Cunty Scial Services Department perates as the cunty s public child welfare agency respnsible fr cmmunity cncerns abut child safety, child well-being, and family stability. Facts: Bth Plaintiffs Neither f the Plaintiff individuals reside in Sctt Cunty, hwever bth f their adptive children are members f the SMSC, lcated in Sctt Cunty. Mr. Nguyen and Ms. Gustafsn In 2014, the cuple gt married in Las Vegas, Nevada, and then mved t Prir Lake, Minnesta. Ms. Gustafsn is an SMSC member, but did nt reside within the SMSC bundaries. In September 2014, A.N. was brn in Minneaplis, Minnesta. Ms. Gustafsn struggled with substance abuse, including while pregnant with A.N. As a result, she has been incarcerated, and this use f illicit drugs during her pregnancy was reprted t the Sctt Cunty Plice Department and SMSC. After her incarceratin, Ms. Gustafsn temprarily mved in with her aunt wh resided within the SMSC prperty bundaries. Shrtly after, she petitined fr divrce in SMSC Tribal Curt, and Mr. Nguyen als petitined fr divrce in Sctt Cunty. SMSC s Business Cuncil issued a n-trespass rder against Mr. Nguyen. He als received an rder f prtectin fr himself and the child A.N. Ms. Gustafsn filed a cmplaint against Mr. Nguyen with the SMSC child prtectin services, which pened a child welfare case. The SMSC allegedly did nt reprt the cmplaint t Sctt Cunty. In March 2015, the tw parents recnciled and purchased a hme in Blmingtn, Minnesta, where they lived with their child A.N. Shrtly after, bth parents agreed t dismiss their respective divrce petitins and vacated the rder fr prtectin. 1 ATCE s website with further infrmatin can be fund at:

2 In July 2015, the SMSC Tribal Curt clsed the child welfare case, but the tribal curt issued an rder t give the cuple temprary legal and physical custdy, and retained jurisdictin ver the minr child A.N. as a ward f the curt. Later that year, Ms. Gustafsn struggled again with drug abuse and mental health and was later sent t intensive inpatient treatment; after that prved ineffective, she was incarcerated. Mr. Nguyen purchased a hme in Califrnia and the plan was fr the family t relcate there after Ms. Gustafsn was released frm prisn. In August 2016, after she was released, she was fund using illicit drugs while caring fr A.N. Mr. Nguyen was ut f twn, s he asked his mther and aunt t remve A.N. frm the hme. His aunt is a teacher and believed she was a mandated reprter, s she reprted Ms. Gustafsn s drug use t Hennepin Cunty Child Prtectin Services. During this time, Ms. Gustafsn cntacted an attrney wh allegedly threatened Mr. Nguyen s family with kidnapping charges if they remved A.N. frm the hme. Ms. Gustafsn and A.N. flew t Califrnia t jin Mr. Nguyen, but she returned t Minnesta t face additinal incarceratin fr parle vilatins in February In June 2017, Mr. Nguyen filed fr divrce in Califrnia and btained a curt rder granting him full custdy f A.N. Ms. Gustafsn threatened t have SMSC take A.N. away since the child was still cnsidered a ward f the curt. Ms. Gustafsn then filed fr divrce in tribal curt, and the Califrnia curt dismissed Mr. Nguyen s case in favr f tribal curt jurisdictin. The tribal curt issued an rder that restricted Mr. Nguyen s visitatin t Sctt Cunty fr any reasn. Mr. Nguyen is cncerned that SMSC des nt prvide a gd envirnment fr A.N, that it has a drug and alchl culture, and that because f the success f the Mystic Lake Casin and Resrt, millins f dllars are payed per capita s the SMSC member children will be wealthy withut ever having t get an educatin r a jb. Mr. Nguyen believes that his judgment shuld be taken int accunt as a parent f A.N. Ms. Steinhff Neither Michelle Steinhff nr her child T.J. resided within the SMSC bundaries. T.J. s father, Daniel Jnes, is an SMSC member. He has a criminal histry including felny child neglect and endangerment, and was therefre incarcerated after T.J. was brn. Befre his incarceratin, he started a custdy and child supprt prceeding in SMSC Tribal Curt t preempt an initial filing by Ms. Steinhff, wh bjected t the tribal curt prceedings. Ms. Steinhff was awarded custdy, but after Mr. Jnes gt ut f prisn, he tk her back t SMSC tribal curt t establish a parenting visitatin schedule. He was allwed visitatin rights frm the tribal curt. In August f 2013, an fficial frm Sctt Cunty Child Prtectin Services came t Ms. Steinhff s hme t check n T.J. s safety, given Mr. Jnes criminal histry. Ms. Steinhff cntacted cunty child prtective services and asked them t pen a case in district curt. Curt Prceedings Octber 10, 2015: Plaintiffs filed a Cmplaint in the district curt. Nvember 2, 2015: Plaintiffs filed a Mtin fr Summary Judgment. Nvember 7, 2015: Defendant Sctt Cunty filed a Mtin t Dismiss. Nvember 28, 2015: Defendant Sctt Cunty filed a Memrandum in Oppsitin t Plaintiffs Mtin fr Summary Judgment. Case number has been assigned as 0:2017cv04597 and awaits a hearing in the Minnesta District Curt in Sctt Cunty. Plaintiffs Arguments/Claims: The State f Minnesta 2 is placing Native American tribal law abve federal law. 2 The Minnesta state ICWA statute can be fund at:

3 (1) ICWA statutrily preempts the Defendants plicies and custms f transferring child custdy matters t the tribe withut a prir state curt prceeding where parents can bject t the tribal transfer. Plaintiffs are bringing a supremacy clause 3 claim against the DHS cmmissiner and Sctt Cunty based n ICWA statutrily preempting the Defendants plicies and custms. Plaintiffs claim that the state s Indian Child Welfare Manual at directly cnflicts with ICWA because it prescribes prcedures where the cunty is t refer child custdy matters invlving minr Indian children t tribes withut a state curt prceeding and withut btaining bth parents cnsent t tribal curt transfer. Plaintiffs claim the illegal effect f this manual s prcedures is that tribal curts can errneusly assert civil adjudicative jurisdictin ver child custdy prceedings. Plaintiffs claim that because Minnesta is a Public Law 280 state, the tribal curt des nt have jurisdictin ver a child custdy matter invlving Indian children living ff the reservatin. Further, it is maintained that the tribal curt prceedings regarding A.N. and T.J. lack subject matter jurisdictin because the tribal curt prceedings are in vilatin f ICWA. The Defendants shuld be federally required t implement the state s exclusive civil adjudicative jurisdictin against a tribal curt prceeding which lacks subject matter jurisdictin. (2) 42 U.S.C (Part f the Civil Rights Act) claim that Defendants plicies and custms vilate the Plaintiffs substantive 4 due prcess rights under the Cnstitutin. The due prcess clause f the Furteenth Amendment includes a substantive cmpnent that prvides heightened prtectin against gvernment interference with certain fundamental rights and liberty interests. Parents have a fundamental liberty interest in the care, custdy, and cntrl f their children, as recgnized by the Furteenth Amendment s due prcess clause. Plaintiffs believe a natural parent is presumed fit and suitable t care fr his r her child, and that parents have a fundamental right t the custdy and cmpaninship f their children. Plaintiffs again state the under ICWA, tribal curts d nt have jurisdictin ver child custdy prceedings invlving children f Public Law 280 tribes. Plaintiffs maintain that neither Mr. Nguyen nr Ms. Steinhff were ever fund t be an unfit parent by any curt r agency, and neither child resided in r were dmiciled within the SMSC reservatin. Plaintiffs claim that DHS and Sctt Cunty have vilated Plaintiffs substantive due prcess rights by allwing the child custdy prceedings regarding A.N. and T.J. t be in tribal curt withut the state curt prceeding and withut the Plaintiffs cnsent t tribal-curt transfer. Plaintiffs claim that the Defendants vilate the substantive due prcess rights f nn-member parents regarding their children and deprive the parents frm making a decisin regarding the jurisdictin under which the child will be subjected. (3) 42 U.S.C claim that Defendants plicies and custms vilate the Plaintiffs prcedural 5 due prcess rights under the Cnstitutin. The due prcess clause has a prcedural cmpnent which requires ntice and an pprtunity t be heard. 3 U.S. Cnst. Art. VI. The supremacy clause dictates that federal law is the supreme law f the land, which means that judges in every state must fllw the Cnstitutin, laws, and treaties f the federal gvernment in matters which are directly r indirectly within the gvernment s cntrl. The dctrine f preemptin, based n the supremacy clause, states that federal law preempts state law, even when the laws cnflict. A federal curt may require a state t stp certain behavir it believes interferes with, r is in cnflict with, federal law. 4 The principle f substantive due prcess allws curts t prtect certain fundamental rights frm gvernment interference, even if prcedural prtectins are present r the rights are nt specifically mentined elsewhere in the U.S. Cnstitutin. 5 Prcedural due prcess prtects individuals frm the cercive pwer f gvernment by ensuring that adjudicatin prcesses, under valid laws, are fair and impartial.

4 Plaintiffs claim there is a recgnized prcedural due prcess right t ntice and pprtunity t be heard prir t gvernmental interference in a parent s childbearing decisins. Plaintiffs maintain that the gvernment must assume that a fit parent s childrearing decisin is in the best interest f the child. Plaintiffs allege that the Defendants plicies and custms vilate their rights t prcedural due prcess in an initial state curt prceeding where either parent, after ntice and pprtunity t be heard, can bject t transfer t the tribe. Plaintiffs als claim that Mr. Nguyen cannt file a child prtectin cmplaint with Sctt Cunty because if he were t d s, the cunty wuld, withut ntice r hearing, transfer the matter t SMSC autmatically as the Defendants plicies and custms require. He is effectually intentinally discriminated against by SMSC because he is a nn-member. Allegedly Ms. Steinhff wuld face a similar result if she tried t reprt abut the instability f her child s bilgical father t Sctt Cunty; it wuld als be autmatically transferred t SMSC withut ntice r hearing. Plaintiffs finally allege that the tribal curt prceedings are unnecessary and illegal and have caused Plaintiffs financial and psychlgical burdens interfering with and damaging family plaintiffs. (4) 42 U.S.C claim that Defendants plicies and custms vilate the Plaintiffs prcedural rights under ICWA. Plaintiffs claim that under ICWA, the tribal curts d nt have jurisdictin ver child custdy prceedings invlving children f Public Law 280 tribes. 6 Defendants have allegedly vilated the ICWA prcedural rights f Plaintiffs by allwing the child custdy prceedings regarding A.N. and T.J. t be in tribal curt withut the initial state curt prceeding and withut the Plaintiff parents cnsent t tribal curt transfer. Plaintiffs allege this claim supprted by all the statements in the previus claims. Defendants Claims in Oppsitin f Plaintiffs Mtin fr Summary Judgment: 1) This mtin is nthing mre than a maneuver by Plaintiffs t g n the ffensive with respect t Defendants Mtin t Dismiss. 2) The undisputed facts shw that Plaintiffs case shuld be dismissed. Plaintiff Nguyen s allegatins f events taking place in Sctt Cunty actually tk place in Hennepin Cunty, and his statement f facts d nt line up. A child prtectin actin cannt take place until a child is actually brn. It shuld be undisputed that Plaintiff Nguyen and his child were residing in Hennepin Cunty at the time f these investigatins and any subsequent actin that needed t be taken shuld have been taken by either Hennepin Cunty r the SMSC. Sctt Cunty did nt prceed any further with A.N. The varius allegatins f abuse r neglect ccurred either in Blmingtn, Minnesta; in Hennepin Cunty; r in Califrnia. Hennepin Cunty Child Services and Humbldt Cunty Child Prtectin Services were cntacted by Plaintiff Nguyen s aunt. Plaintiff Steinhff and her child T.J. lived in Dakta Cunty, s it wuld be that cunty that shuld pursue the matter. When Plaintiff Steinhff suggested she begged Sctt Cunty t pen a case during her hme visit by a Sctt Cunty child prtectin wrker, Sctt Cunty sent the riginal reprt t Dakta Cunty. Since there was n referral, n case lies that the state ICWA Manual cnflicts with ICWA, and summary judgment culd actually be granted sua spnte. 7 There was n actual referral t the SMSC. 6 Public Law 280 effectually creates a cncurrent jurisdictin with states and tribes where ICWA is cncerned. 7 Summary judgment can be granted sua spnte t a defendant wh shws thrugh its respnse that a plaintiff cannt maintain the actin it brings. See Lester v. Wildwd Financial Grup, Ltd., 205 F.3d 1346 (8 th Cir. 2000).

5 3) Plaintiffs can make n Mnell claim because they cannt pint t a plicy r custm f Sctt Cunty that caused their alleged injury. It was nt a Sctt Cunty plicy that allegedly caused harm, and under Mnell, the case shuld be dismissed as against Sctt Cunty. In rder t sue a municipality, such as a cunty, under 42 U.S.C. 1983, a Plaintiff must allege that a plicy, custm, r practice f the municipality caused the injury (Mnell v. Department f Scial Services, 436 U.S. 458, 690 [1978]). Mnell requires that the plicy in questin must have been prmulgated by the municipalities actrs. The plicy in questin here is the Minnesta ICWA Manual, which by virtue f state law, the cunty must cmply with. Thus it is nt a cunty plicy that Plaintiffs are cmplaining abut. Plaintiffs cannt avid this analysis by stating that the cunty plicy in questin was a plicy t fllw the state plicy. 4) Sctt Cunty did nt vilate the Plaintiffs civil rights by fllwing the ICWA Manual r State Plicy. Even if the Minnesta DHS Indian Child Welfare Manual smehw becmes Sctt Cunty s plicy, it des nt vilate the Plaintiffs civil rights. There was never actually a referral frm Sctt Cunty t the SMSC. Sctt Cunty prperly enfrced a state plicy in the Indian Child Welfare Manual and that plicy des nt cntravene the Plaintiffs civil rights. 5) Sctt Cunty is an arm f the state and therefre, immune t a suit fr damages. Cmmissiner Piper accurately discussed the Eleventh Amendment immunity prvided t the state fr a mnetary claim in federal curt fr damages. 8 Sctt Cunty acts as an arm f the state and thus may share in that immunity. It is merely the lcal gvernmental entity perating under directin f the state s DHS. There is case law that extends a state s 11 th Amendment immunity frm suit t an arm f the state. T be an arm f the state, the cunty must shw tw things: (1) the amunt f state cntrl ver the entity; and (2) whether state mney wuld pay fr any judgment. Here, Sctt Cunty, under state law, must fllw the edicts f the DHS, and it receives substantial state funds t d this. Where are we nw? As f an ICWA Develpments Panel n April 6, 2018, there are n new updates n the case prceedings. Hwever, ATCE s lawyers have said they have n plans f stpping any time sn. In ther news, Minnesta is rlling ut a five-year ICWA implementatin plan, and wrking n creating an exclusive ICWA dcket curt in St. Paul, Minnesta. 8 U.S. Cnst. amend XI. The Judicial pwer f the United States shall nt be cnstrued t extend t any suit in law r equity, cmmenced r prsecuted against ne f the United States by Citizens f anther State, r by Citizens r Subjects f any Freign State.