Oglala Sioux v. Fleming (On appeal to 8 th Cir.) A Case Summary

Transcription

1 Oglala Siux v. Fleming (On appeal t 8 th Cir.) A Case Summary Parties: (1) Plaintiffs Oglala Siux Tribe and Rsebud Siux Tribe are Indian tribes fficially recgnized by the U.S. with reservatins lcated within Suth Dakta. Bth tribes have treaties with the federal gvernment. Plaintiffs Madnna Pappan and Lisa Yung reside in Penningtn Cunty, Suth Dakta, and are members f the Oglala Siux Tribe and the Standing Rck Siux Tribe respectively. The curt has certified these individual plaintiffs as class representatives fr all similarly situated Indian parents. (2) Defendants Lynne Valenti is the Secretary f the Suth Dakta Department f Scial Services (DSS). Lisa Fleming is an investigatr fr the DSS Child Prtectin Services (CPS) in Penningtn Cunty, Suth Dakta. Mark Varg is the duly elected State s Attrney fr Penningtn Cunty. Craig Pfeifle is the presiding judge f the Seventh Judicial Circuit Curt f the State f Suth Dakta, having replaced Judge Davis. Facts: Since January 2010, apprximately ne-hundred 48-hur hearings invlving Indian children 1 are held each year in Penningtn Cunty. Children were remved frm their hmes withut their parents r tribes getting timely, fair, and adequate hearings, as required by law. Sme parents were waiting mnths fr their hearing, while thers were tld they did nt have rights t such a hearing. Three Indian parents and tw tribes in Suth Dakta filed a class-actin lawsuit in 2013 ver repeated vilatins f their fundamental rights during the separatin prcess f children frm their families by state fficials. In January 2014, the district curt rdered the Defendants t prvide Plaintiffs with a cmplete list f 48-hur ICWA hearings frm January 1, 2010, t the present. In March 2014, Plaintiffs filed a mtin t cmpel, which claimed five judges frm the Seventh Judicial Circuit were refusing t sign the rder t btain the ICWA 48-hur transcripts. The district curt rdered the Defendants t respnd t the mtin t cmpel and gave the afrementined judges tw weeks t either abide by the rder r explain why they wn t cmply. In May 2014, the chief judge frm the district curt subpenaed the curt reprters frm the 48-hur hearings t prduce the transcripts by June 1. In July 2014, Plaintiffs filed a mtin fr partial summary judgment regarding the Defendants vilatins, and included a statement f undisputed facts. Plaintiffs cntended that the Defendants allwed n testimny, evidence, r crssexaminatins at the 48-hur hearings and ften the nly questins asked f the parents were fr purpses f identificatin. Plaintiffs further cntended that the Defendants never cnducted the hearings required by 25 U.S.C Often, the length f time it tk t cmplete the hearings was under fur minutes, sme even abut 60 secnds. Plaintiffs later filed a secnd mtin fr partial summary judgment fr due prcess claims, seeking t prtect the parent-child relatinship frm unnecessary gvernment intrusin. 1 Indian children, as defined by 25 U.S.C. 1903(3).

2 Plaintiffs claimed that Defendants have denied the parents the pprtunity t present evidence, crss-examine witnesses, cunsel, and denied testimny and explanatin. 48-hur hearings are intended t be evidentiary hearings. In August 2014, the Department f Justice (DOJ) filed an amicus brief t prtect the U.S. s interest in ensuring that state curts and agencies cnsistently adhere t ICWA and the due prcess clause when Indian children are remved frm their families and tribes and taken int state custdy. The district curt granted the DOJ s mtin. This is the first time the DOJ has intervened in a federal district curt case invlving ICWA. In March 2015, the curt granted the mtins fr partial summary judgment, hlding that the facts frm the hearing transcripts are undisputed, and parents were denied due prcess. In April 2015, Judge Davis and DSS filed a mtin t recnsider, which was later denied the fllwing year. In May f 2015, Judge Davis was replaced by Judge Pfeifle as head f the Seventh Circuit Curt. In December 2015, the Plaintiffs request fr declaratry judgment was granted and injunctive relief was granted in part. The curt held that there is a right t adequate ntice, right t present evidence, right t crss-examine, right t cunsel, right t a decisin based n the evidence presented at the hearing and that a 48-hur hearing must use the 1922 standard, and DSS must use the same standard when determining when t return an Indian child t a hme. In January 2017, Defendants appealed the rders and the permanent injunctin. Mark Varg filed a mtin t stay prtin f the permanent injunctin pending appeal, t which the ther Defendants jined in. In February 2017, the curt denied the mtin t stay, hlding that the Defendant did nt carry his burden 2 t warrant a stay f the declaratry judgment rder r the permanent injunctin. The appeals were then transferred t the Eighth Circuit Curt f Appeals, and the parties filed subsequent briefs fr appeal. In June 2017, prpsed amicus curiae was filed fr the Cherkee Natin f Oklahma, Navaj Natin, ICWA Law Center, Natinal Cngress f American Indians, and the Natinal Indian Child Welfare Assciatin. The 8 th Circuit scheduled arguments fr this case that tk place n February 13, Arguments/Claims: 1) 11 th Amendment immunity is inapplicable 3 here. The 11 th Amendment bars suits against states fr mney damages in federal curt, but plaintiffs can seek prspective relief against state fficials in their fficial capacities. The Ex Parte Yung exceptin t the 11 th Amendment immunity rests n the premise that when a federal curt cmmands a state fficial t d nthing mre than refrain frm vilating federal law, he is nt the State fr svereign-immunity purpses. 4 A curt need nly cnduct a straightfrward inquiry int whether [the] cmplaint alleges an nging vilatin f federal law and seeks relief prperly characterized as prspective. 5 2 Accrding t the Federal Rules f Appellate Prcedure, Rule 8, (2)(A) states that the mtin must: (i) shw that mving first in the district curt wuld be impracticable; r (ii) state that, a mtin having been made, the district curt denied the mtin r failed t affrd the relief requested and state any reasns given by the district curt fr its actin. (2)(B) states that the mtin must als include: (i) the reasns fr granting the relief requested and the facts relied n; (ii) riginals r cpies f affidavits r ther swrn statements supprting facts subject t dispute; and (iii) relevant parts f the recrd. 3 Hans v. Luisiana, 134 U.S. 1, (1890), but under Ex parte Yung, 209 U.S. 123 (1908), that immunity des nt extend t a suit filed against state fficials in their fficial capacities seeking nly prspective relief. 4 Virginia Office fr Prtectin and Advcacy v. Stewart, 563 U.S. 255 (2011).

3 The 8 th Circuit has rejected 11 th Amendment immunity defenses in the past 6, because the purpse f the Plaintiffs lawsuit was t bring the State s regulatry scheme int cmpliance with federal law. Here, the purpse f the Plaintiff s lawsuit is nt t eliminate the State f Suth Dakta s regulatry pwer ver child welfare, but nly t bring that regulatin int cmpliance with federal law. 2) The District curt was crrect in nt abstaining. The Defendants Varg and Pfeifle argued that the district curt shuld have abstained frm exercising its jurisdictin ver the Plaintiffs petitin fr prspective relief. Mr. Varg argued that under the Rker-Feldman 7 dctrine, the curt shuld have abstained frm deciding whether he had created plicies and was implementing practices that vilated the Plaintiffs federal rights. The Rker-Feldman dctrine recgnizes that, with the exceptin f habeas crpus petitins, lwer federal curts lack subject matter jurisdictin ver challenges t state curt judgments. The dctrine freclses straightfrward appeals f state curt judgments and als indirect attacks that are inextricably intertwined with specific claims already adjudicated in state curt. Generally, nly the United States Supreme Curt may cnduct that review. The Supreme Curt has clarified 8 that the dctrine is cnfined t cases f the kind frm which the dctrine acquired its name: cases brught by state-curt lsers cmplaining f injuries caused by state-curt judgments rendered befre the district curt prceedings cmmenced and inviting district curt review and rejectin f thse judgments. Here, the Plaintiff s federal actin was nt brught by the parties wh lst the riginal case 9 in questin, and the relief sught in the Plaintiffs federal actin wuld nt nullify the judgment rendered in that case. The federal Plaintiffs here did nt lse in Cheyenne River. The Oglala Siux and Rsebud Siux Tribes have n cnnectin t the Plaintiffs in that case. The relief sught in Cheyenne River was retrspective, whereas the tribe requested a writ f prhibitin r mandamus that wuld repen ne particular custdy case t allw fr further prceedings. This present case nly seeks prspective relief and challenges plicies that apply t all remval cases generally, cntending that they vilate ICWA and the Due Prcess Clause f the 14 th Amendment. Cases are unanimus in hlding that the Rker-Feldman dctrine des nt apply where the state case invlved an applicatin f a plicy and the federal case challenges that plicy generally. Where Hnrable Craig Pfeifle argues that the district curt shuld have abstained frm addressing the Plaintiffs cnstitutinal and ICWA claims due t the Yunger 10 abstentin dctrine, that cntentin lacks merit and the curt was crrect. The Yunger abstentin dctrine bars federal curts frm hearing civil rights trt claims brught by a persn wh is currently being prsecuted fr a matter 5 Verizn Maryland Inc. v. Public Serv. Cmm n f Maryland, 533 U.S. 635, 645 (2002) (quting Idah v. Ceur d Alene Tribe f Idah, 521 U.S. 261, 296 (1997). 6 Mille Lacs Band f Chippewa Indians v. Minnesta, 124 F.3d 904 (8 th Cir. 1997). 7 District f Clumbia Curt f Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rker v. Fidelity Trust C., 263 U.S. 413, 416 (1923). 8 Exxn Mbil Crp. v. Saudi Basic Indus. Crp., 544 U.S. 280 (2005). 9 Cheyenne River Siux Tribe v. Davis, 822 N.W. 2d 62 (S.D. 2012). 10 Yunger v. Harris, 401 U.S. 37 (1971).

4 arising frm that claim in state curt. It has been extended 11 t state civil prceedings in aid f and clsely related t state criminal statutes, administrative prceedings initiated by a state agency, r situatins where the state has jailed a persn fr cntempt f curt. Yunger asks whether the remedy requested by the federal Plaintiff wuld interfere with an nging state prceeding, nt whether that remedy might require changes in a future prceeding. There are three exceptins t the Yunger dctrine: (1) Where the prsecutin is in bad faith; (2) Where the prsecutin is part f sme pattern f harassment against an individual; r (3) Where the law being enfrced is utterly and irredeemably uncnstitutinal. Judge Pfeifle cncedes that the first and third exceptins d nt apply here, but nly discusses the secnd. Hwever, there was n civil prceeding pending against any Plaintiff at the time this suit was filed r when the district curt ruled n the Defendants mtin t abstain, s this secnd exceptin is als inapplicable. This dctrine shuld be rejected because state custdy prceedings wuld nt prvide the Plaintiffs with an adequate pprtunity t raise their cnstitutinal claims. Furthermre, abstentin is nt justified where the state plicy r practice being challenged is flagrantly and patently vilative f express cnstitutinal prhibitins r where danger f irreparable lss is bth great and immediate. Yunger, 401 U.S. at 53. The Plaintiffs maintain that the district curt had a duty t cnsider their substantial cnstitutinal and ICWA claims, s the curt apprpriately decided nt t abstain frm exercising jurisdictin. 3) All f the Defendants are plicymakers liable under 42 U.S.C The district curt previusly fund that all fur Defendants are plicymakers fr purpses f liability under 42 U.S.C. 1983, which the Defendants challenge. Under Mnell v. Department f Scial Serv., 436 U.S. 658 (1978), a municipal gvernment can be held liable under Sectin 1983 if a plaintiff can demnstrate that a deprivatin f a federal right ccurred as a result f a "plicy" f the lcal gvernment's legislative bdy r f thse lcal fficials whse acts may fairly be said t be thse f the municipality. Gvernmental liability under 1983 attaches where a deliberate chice t fllw a curse f actin is made frm amng varius alternatives by the fficial r fficials respnsible fr establishing final plicy with respect t the subject matter in questin. 12 Additinally, a challenged plicy need nt be written t create liability, accrding t Mnell. Whether an fficial had final plicymaking authrity is a questin f state law. Under state law, when a child is remved frm the hme n an emergency basis and the state wishes t retain custdy, a hearing must be held within apprximately 48-hurs, and it is precipitated by the filing f a petitin fr temprary custdy (PTC). Mr. Varg s plicy was t withhld the PTC he filed in curt frm the parents, s the result was the parents ging thrugh the entire hearing withut being able t see the PTC. Plaintiffs secured a representative sample f hearings cnducted by all f the judges wh presided ver cases during that perid f time and shws what plicies Mr. Varg pursued thrugh the discvery request fr the transcripts frm January 1, 2010, t the present. 11 Huffman v. Pursue, Ltd., 420 U.S. 592, 43 L.Ed.2d 482, 95 S.Ct (1975); Ohi Civil Rights Cmm'n v. Daytn Christian Sch., Inc., 477 U.S. 619, 627 n.2, 91 L. Ed. 2d 512, 106 S. Ct (1986); Judice v. Vail, 430 U.S. 327 (1977). 12 Pembaur v. City f Cincinnatti, 475 U.S. at 469, 483 (1986).

5 Mr. Varg als effectually created a plicy f failure t give parents ntice f the ICWA 1922 standard. ICWA was nt cited anywhere in his PTCs. During the remedies hearing, Mr. Varg stated that the reasn he did nt cmply was because there was n need fr him t cite the 1922 standard since the cunty curt ntifies parents f the crrect legal standard during the hearing. Plaintiffs maintain that Mr. Varg made a chice t nt supply the parents with ntice, and therefre gvernmental liability under 42 U.S.C attaches t him. DSS Defendants created three uncnstitutinal fficial plicies. The statements abve can be eched here. The DSS Defendants were presented with chices n matters within their final discretin and the Plaintiffs maintain that in each instance the Defendants chse t inflict a cnstitutinal injury rather than avid ne. The DSS failed t prvide parents with a cpy f the ICWA Affidavit at the 48-hur hearings. The burden f prf at ne such hearing is n the state t justify the need fr cntinued remval f a child. The purpse f the hearing is t determine if a sufficient risk f future injury exists t warrant keeping the child in state custdy. The DSS Defendants used the wrng legal standard in determining cntinued remval f Indian children, set frth in 25 U.S.C The Defendants instead were using the state s standard, which is less strict than ICWA. The DSS Defendants acquiesced in and adpted the cunty curt s decisin t deny parents f adequate ntice, and used the best interests standard t determine the hearing s utcme. Defendant Pfeifle created uncnstitutinal fficial plicies. Judge Davis was respnsible fr uphlding plicies that vilated ICWA and due prcess rights f the parents at the hearings. The vilatins at the 48-hur hearings denied parents f the right t be infrmed f the allegatins against them and the legal standard gverning remval, t present evidence, t crss-examine the state s witnesses, t cunsel, and t a decisin based n evidence presented in pen curt. Althugh the vilatins themselves ccurred under Judge Davis, Judge Pfeifle did maintain that the prcedures used abve were nt uncnstitutinal, and thus believes that the Plaintiffs suffered n cgnizable injuries. Plaintiffs als maintain there is evidence that Judge Pfeifle cntinued with the same prcedures Judge Davis used, including furteen hearings alne in 2013, as discvered in ) Sectin 1922 limits the curt s cnsideratin at 48-hur hearings t evidence f imminent physical damage r harm Defendants emplyed a best interests f the child standard, rather than the 1922 standard required by ICWA. This directly barred the parents frm challenging a 48-hur hearing, and granted cntinued remval based n a casewrker s belief. Plaintiffs maintain that Cngressinal intent must prevail in statutry interpretatin, and 1922 must be interpreted t mean that cntinued remval f an Indian child at the 48-hur hearing must be based n evidence f physical injury and nt emtinal injury. Reasning behind this suppsitin includes: The plain language f 1922 uses the wrds imminent physical damage r harm. When a statute creates multiple standards, a curt must give effect t each ne. Defendants cnstructin f 1922 cntradicts the principle f Cngressinal intent. Allwing cntinued remval at 48-hur hearings t be based n emtinal injury is incnsistent with the verarching purpse f ICWA. Defendants wn interpretatin wuld prduce and has prduced due prcess vilatins.

6 5) Defendants 48-hur hearings vilated the Due Prcess Clause Statements in the abve claims can be eched here. The vilatins at the 48-hur hearings denied parents f the right t be infrmed f the allegatins against them and the legal standard gverning remval, t present evidence, t crss-examine the state s witnesses, t cunsel, and t a decisin based n evidence presented in pen curt. Plaintiffs maintain that the right t familial integrity is a fundamental liberty interest, and therefre gvernment fficials have an affirmative duty t prvide a hearing which fllws due prcess f law. 6) The District Curt issued apprpriate remedies The burden is n the Defendant t prve that there is n reasnable expectatin that the wrng will be repeated. 13 Plaintiffs prvide the example that: Defendant Pfeifle cannt avid a remedy fr the uncnstitutinal plicies that he and Judge Davis pursued in their wn 48-hur hearings unless he culd prve that neither f them culd reasnably be expected t nce again preside ver a 48-hur hearing. The remedies rdered crrelate with ICWA s purpse by ensuring that Indian children, their parents, and their tribes will receive a fair and meaningful hearing based n crrect legal standards. The remedies rdered are apprpriate and restrained accrding t the Plaintiffs, given the many years in which the Defendants uncnstitutinal plicies existed, the assertins by the Defendants that all f thse plicies were valid. *Special thanks t Lani Petrul, 3L at Lewis & Clark Law Schl, fr preparing this summary as a part f her externship at NICWA. Fr mre infrmatin relating t this summary, please cntact NICWA Gvernment Affairs Directr David Simmns at desimmns@nicwa.rg r ICWA Specialist Shanna Knight at sknight@nicwa.rg. 13 W.T. Grant C., 345 U.S. at 633