Lightfoot v. Jewell et al
Filing
44
MEMORANDUM OPINION AND ORDER. Plaintiffs' Motion for Temporary Restraining Order (Doc. No. 29 ) is DENIED.(Written Opinion). Signed by Judge Donovan W. Frank on 12/12/2013. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Sheryl Rae Lightfoot,
Civil No. 13-2985 (DWF/JJK)
Plaintiff,
v.
MEMORANDUM
OPINION AND ORDER
Sally Jewell as Secretary of the Department
of the Interior, or her successor; United
States Department of the Interior; United
States; Shakopee Mdewakanton Sioux
Community; and Kenneth Jo Thomas,
Defendants.
_______________________________________________________________________
Erick G. Kaardal, Esq., and William F. Mohrman, Esq., Morhman & Kaardal, P.A.,
counsel for Plaintiff.
Bahram Samie, Assistant United States Attorney, United States Attorney’s Office,
counsel for Defendants Sally Jewell as Secretary of the Department of the Interior, or her
successor; United States Department of the Interior; and United States.
Gregory S. Paulson, Esq., and Kurt V. BlueDog, Esq., BlueDog, Paulson & Small,
P.L.L.P.; and Richard A. Duncan, Esq., and Christina Martenson, Esq., Faegre Baker
Daniels LLP, counsel for Defendant Shakopee Mdewakanton Sioux Community.
Gary A. Debele, Esq., Walling, Berg & Debele, P.A., counsel for Defendant Kenneth Jo
Thomas.
_______________________________________________________________________
INTRODUCTION
This matter is before the Court on a Motion for a Temporary Restraining Order
brought by Plaintiff Sheryl Rae Lightfoot against Defendants Shakopee Mdewakanton
Sioux Community and Kenneth Jo Thomas (not the United States Defendants: Sally
Jewell as Secretary of the Department of the Interior, or her successor; United States
Department of the Interior; and United States). (Doc. No. 21.) For the reasons set forth
below, and articulated by the Court at the hearing on the Motion for a Temporary
Restraining Order, the Court denies the motion.
BACKGROUND
Plaintiff Sheryl Rae Lightfoot (“Lightfoot”) and Defendant Kenneth Jo Thomas
(“Thomas”) married on the grounds of the Shakopee Mdewakanton Sioux (Dakota)
Community Reservation in August 1996. (Doc. No. 25, Kaardal Decl. ¶ 4, Exs. 3 & 10.)
Thomas has been an enrolled member of the Shakopee Mdewakanton Sioux (Dakota)
Community (the “SMSC”) since 1972. (Kaardal Decl. ¶ 4, Ex. 3.) Lightfoot is not a
member of the SMSC; she is an enrolled member of the Keweenaw Bay Indian
Community, Lake Superior Band of Chippewa. (Doc. No. 24, Lightfoot Decl. ¶ 5.)
Lightfoot and Thomas have two children together, both of whom they adopted from
China. (Id. ¶¶ 10-11.) They adopted one child in August 2000 and one child in
November 2003. (Id.) The parties are now both seeking a divorce. Lightfoot filed for
divorce in the British Columbia Supreme Court on September 19, 2013. (Kaardal Decl.
¶ 4, Ex. 3.) Lightfoot currently resides in British Columbia with both children. (Id.)
Thomas filed for divorce in the Tribal Court of the SMSC (“SMSC Tribal Court”) on
October 16, 2013. (Kaardal Decl. ¶ 4, Ex. 10.) Thomas currently resides in Minnesota
on SMSC property. (Id.)
The parties’ marital history prior to the divorce filings is somewhat in dispute.
Generally, it is agreed that the parties lived in Minnesota together until sometime in the
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summer of 2009 when they moved to British Columbia so Lightfoot could pursue a
tenure-track professor position at the University of British Columbia. (Lightfoot Decl.
¶ 5; Kaardal Decl. ¶ 4, Ex. 3.) The children began attending school in British Columbia
at the beginning of the 2009-2010 school year. (Lightfoot Decl. ¶ 5; Doc. No. 34, Ex. D.)
It appears that the family returned to Minnesota for each summer, but that the children
were in school in British Columbia for each school year from 2009 through the present.
(See Lightfoot Decl. ¶ 5; Doc. No. 34, Ex. D.) At some point in and around 2011,
Thomas remained in Minnesota for approximately one year to care for his sister who was
dying from terminal cancer. (See Lightfoot Decl. ¶ 5; Doc. No. 34, Ex. D.) Thomas
asserts that apart from that year, he was the primary caregiver for the children. (Doc.
No. 34, Ex. D.) The parties agree that the children are not eligible for enrollment with
SMSC, but Thomas asserts they self-identify as members of the SMSC and have fully
participated in SMSC cultural life, while Lightfoot disagrees. (Kaardal Decl. ¶ 4,
Exs. 3 & 10.)
Thomas is unemployed, but he receives per capita payments from the SMSC in the
amount of approximately $64,000 per month. (Kaardal Decl. ¶ 4, Exs. 3 & 10.) The
parties maintain a number of properties in the United States, including a house on SMSC
land. (Id.) The home in British Columbia is rented. (Id.) Thomas asserts that the SMSC
property and house are the “parties’ primary residence.” (Kaardal Decl. ¶ 4, Ex. 3.)
The divorce cases in the British Columbia Supreme Court and in the SMSC Tribal
Court have progressed since they were each filed. For purposes of this motion, the most
important events include:
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(1)
In British Columbia:
• Thomas was served with a Notice of Family Claim from the
British Columbia Supreme Court on October 1, 2013;
• Thomas disputed the jurisdiction of the British Columbia
Supreme Court with a filing on October 31, 2013;
• Lightfoot filed an Application in the British Columbia Supreme
Court pertaining to the adjudication of the dissolution and related
issues;
• the British Columbia Supreme Court held a hearing on
October 17, 2013;
• the British Columbia Supreme Court issued an Order “without
prejudice to either party’s argument as to the proper jurisdictional
forum” regarding the Application and the Hearing. The Order
was issued on November 1, 2013 and temporarily addresses life
insurance, child maintenance, and spousal support;
• Thomas appealed the October 17, 2013 Order of the British
Columbia Supreme Court; and
• a hearing before the British Columbia Supreme Court on these
matters was set for December 11, 2013, but has been moved to
February.
(2)
In the SMSC Tribal Court:
• Thomas moved the Tribal Court Regarding Jurisdiction and for
Temporary Relief on matters related to the dissolution; and
• the Tribal Court issued a Scheduling Order on November 29,
2013 setting a hearing for December 10, 2013. 1
1
The Tribal Court heard the matter on December 10, 2013, and took it under
advisement. The Tribal Court has not yet issued any order or findings in this matter.
Additionally, the parties, this Court, and Judge Jacobson of the SMSC Tribal
Court held a conference call on the morning of December 10, 2013 to ensure open
communication between the courts as these issues proceed. This Court and Judge
(Footnote Continued on Next Page)
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(See Kaardal Decl. ¶ 4, Exs. 3 & 10; Lightfoot Decl. ¶¶ 1, 2, 14; Doc. No. 34, Exs. A-G.)
Because the parties have filed for divorce in both British Columbia and with the
SMSC Tribal Court, jurisdiction over the divorce and all related matters is in dispute.
Lightfoot claims that the SMSC Tribal Court cannot and should not exercise jurisdiction
over the divorce. Lightfoot asserts that the SMSC Domestic Relations Code which was
adopted in 1995, and was approved (per required procedure) by the Department of the
Interior, is in conflict with 28 U.S.C. § 1360 and, as a result, with state law. Lightfoot
claims a conflict exists as a matter of law and that there is also a conflict regarding how
the SMSC Tribal Court would address issues of child custody, and especially spousal and
child support as compared to a Minnesota state court. Lightfoot is particularly concerned
with the provisions of the SMSC Domestic Relations Code that would deem Thomas’s
per capita payments to be non-marital property, whereas Minnesota state courts would
consider those payments to be income or marital property to be divided equitably.
Defendants disagree. Defendants argue that the SMSC Tribal Court has either exclusive
or concurrent jurisdiction and that Lightfoot’s claims lack any valid legal basis.
Defendants have also raised other jurisdictional issues, including issues of sovereign
immunity.
(Footnote Continued From Previous Page)
Jacobson spoke again on December 11, 2013, following the SMSC Tribal Court hearing
on December 10, 2013. Finally, on December 11, 2013, this Court also spoke with
Justice Lauri Ann Fenlon from the British Columbia Supreme Court regarding these
proceedings. All three courts intend to participate in a conference call on these matters as
soon as practicable.
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In her Complaint, Lightfoot asserts the following claims: (1) declaratory judgment
that the Department of Interior’s approval of the SMSC Domestic Relations Code in 1995
violated 28 U.S.C. § 1360; (2) violation of 28 U.S.C. § 1360 by SMSC with its adoption
and enforcement of the SMSC Domestic Relations Code; (3) injunction against the
Department of Interior in light of the inconsistency between the SMSC Domestic
Relations Code and state law; and (4) attorney fees. (Doc. No. 1, Compl. ¶¶ 53-95.)
Lightfoot moved for a temporary restraining order prior to the hearing that
occurred in the SMSC Tribal Court on December 10, 2013. The Court ruled from the
bench on December 9, 2013, prior to the SMSC Tribal Court hearing, and the Court now
further addresses the motion for a temporary restraining order below.
DISCUSSION
The Court considers four primary factors in determining whether a temporary
restraining order should be granted: (1) the threat of irreparable harm to the moving
party; (2) the likelihood of the moving party’s success on the merits; (3) the state of
balance between the alleged irreparable harm and the harm that granting the injunction
would inflict on the other party; and (4) the public interest. Dataphase Sys., Inc. v. C L
Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). This analysis was designed to determine
whether the Court should intervene to preserve the status quo until it decides the merits of
the case. Id. In each case, the factors must be balanced to determine whether they tilt
toward or away from granting injunctive relief. See West Pub. Co. v. Mead Data Cent.,
Inc., 799 F.2d 1219, 1222 (8th Cir. 1986). A preliminary injunction is an extraordinary
remedy. See Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 503
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(8th Cir. 1987). The party requesting the injunctive relief bears the “complete burden” of
proving all of the factors listed above. Gelco Corp. v. Coniston Partners, 811 F.2d 414,
418 (8th Cir. 1987).
A.
Irreparable Harm
The movant must establish that irreparable harm will result if injunctive relief is
not granted and that such harm will not be compensable by money damages. See
Packard Elevator v. I.C.C., 782 F.2d 112, 115 (8th Cir. 1986). In her briefing, Lightfoot
contends that if the SMSC and its Tribal Court moved forward with the December 10,
2013 2 hearing, the minor, adopted, and non-Indian children living in British Columbia
will be irreparably harmed. Lightfoot argues that by simply exercising jurisdiction and
applying the SMSC Domestic Relations Code, the SMSC Tribal Court will irreparably
harm the parties, and particularly the children, because the SMSC Tribal Court will be
furthering a “jurisdictional clash.” (Doc. 23, Pl. Br. at 25.) However, at its core, what
Lightfoot really appears to be arguing is that this jurisdictional clash (the SMSC Tribal
Court exercising its jurisdiction) is a harm in and of itself because it violates federal law
and Minnesota law. The Court notes that Lightfoot’s Complaint in this matter does not
address harm to the children, excepting references to the different determinations that the
relevant courts could make as to division of the marital estate, child support, and spousal
maintenance. (See Compl. ¶¶ 1-95.)
2
Again, the Court notes that in light of the short time frame in this matter, it made a
ruling from the bench on the instant motion on December 9, 2013. The matter has since
been heard by the SMSC Tribal Court, but that Court has not made a ruling at this time.
7
At this juncture, Lightfoot fails to present anything more than speculative harm,
which is not enough to rise to the level of irreparable harm. See Graham Webb Int'l v.
Helene Curtis, Inc., 17 F. Supp. 2d 919, 924 (D. Minn. 1998) (“Possible or speculative
harm is not enough.”); S.J.W. v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 779
(8th Cir. 2012). In fact, Lightfoot has failed to identify or present any evidence of what
the irreparable harm to the children would consist of and has not identified that it is
imminent or certain. For instance, the SMSC Tribal Court could 3 decline to address any
issues beyond whether it has jurisdiction. If that is the case, the children would not suffer
any harm. Even assuming that the SMSC Tribal Court were to render a decision
determining issues of child custody, child support, spousal support, division of the
marital estate, and dissolution of the marriage, this still would not show irreparable harm
that is “certain and imminent such that there is a clear and present need for equitable
relief.” Anytime Fitness, Inc. v. Fam. Fitness of Royal, LLC, Civ. No. 09-3503, 2010 WL
145259, at *2 (D. Minn. Jan. 8, 2012) (citing Iowa Utils. Bd. v. F.C.C., 109 F.3d 418, 425
(8th Cir. 1996)). Finally, the potential erroneous exercise of jurisdiction is insufficient to
establish irreparable harm to Lightfoot and the children. Both courts have yet to examine
whether they have jurisdiction, and if they decide they do, there are a number of avenues
to address jurisdictional disputes—a temporary restraining order is simply not one of
them.
3
See supra test in note 2.
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Lightfoot has failed to establish irreparable harm, and so this factor weighs against
granting a temporary restraining order. With respect to irreparable harm, although not
dispositive, failure to show irreparable harm is an adequate ground upon which to deny
injunctive relief. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003) (citations
omitted). Therefore, the Court declines to issue a temporary restraining order on this
factor alone at this time.
B.
Likelihood of Success
Though the irreparable harm analysis is sufficient grounds for the Court to deny
the temporary restraining order, the Court will also briefly discuss the relevant remaining
Dataphase factors. At this stage, Lightfoot has not established a likelihood of success on
the merits. This factor requires that the movant establish a substantial probability of
success on the merits of her claim. See Dataphase, 640 F.2d at 114.
Plaintiff argues that there is a substantial likelihood that she will succeed on the
merits because the laws, as they currently exist, are facially inconsistent, and the tribal
court otherwise lacks jurisdiction. Plaintiff argues that it is only this Court that has the
power to address these facial inconsistencies on the basis of federal question jurisdiction.
The SMSC argues that this Court is devoid of any jurisdiction and that the tribal court
does have jurisdiction. The SMSC also argues that even if this Court did have
jurisdiction, the SMSC has clear immunity in a case like the one at hand. Both the SMSC
and Thomas question whether the basis of Lightfoot’s claims, 28 U.S.C. § 1360, even
applies to Indian Tribes themselves (as opposed to individuals).
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At the very least, Plaintiff has asserted a number of complex and highly contested
jurisdictional issues in this case. And, while at this juncture, the Court declines to
determine that it does not have jurisdiction, or that there must be exhaustion of the Tribal
process and remedies, the substantial likelihood element has not been met. Lightfoot has
failed to demonstrate that an inconsistency between the SMSC Domestic Relations Act
and Minnesota state law definitively exists. It is entirely plausible that the laws and court
actions could be wholly consistent, and until there is some demonstration that the SMSC
will rule inconsistently with any other court or law, Plaintiff cannot show a likelihood of
success on the merits.
Accordingly, the Court finds that this factor also weighs against granting a
temporary restraining order.
C.
Balance of Harms and Public Interest
The third Dataphase factor to be considered is whether the harm to the movant in
the absence of injunctive relief outweighs the potential harm that granting injunctive
relief may cause to the non-movant; the final Dataphase factor is whether injunctive
relief is in the public’s interest. See Dataphase, 640 F.2d at 114. Addressing both
factors, the Court finds that this case involves jurisdictional questions that could
potentially have a far reaching impact on a number of different systems, courts, and
individuals. At this early stage, and in light of the Court’s findings above, the Court
concludes that these factors also weigh against granting a restraining order on an
emergency basis.
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CONCLUSION
For all of the reasons discussed above, the Court concludes that the balance of
equities does not favor Plaintiff, and justice does not require the Court to intervene to
preserve the status quo until the merits are determined. The Court notes, however, that
this Order is not determinative of future motions, and there is no guarantee that the
Court’s current view of this case will stand depending on future orders from the SMSC
Tribal Court, the British Columbia Supreme Court, or even Minnesota state courts, or any
future motions, particularly as the record and arguments are supplemented and refined.
More importantly, the Court reiterates its statements from the bench regarding the
paramount importance of keeping the interests of the two children involved in this case,
and the parents in this case, at the forefront of the parties’ minds and actions. The Court
strongly suggests that the parties make an attempt to resolve this case, and this Court
joins the SMSC Tribal Court in the suggestion that mediation would likely serve not only
the best interests of the parties, but also of their children.
ORDER
Based upon the foregoing, IT IS HEREBY ORDERED that Plaintiffs’ Motion
for Temporary Restraining Order (Doc. No. [29]) is DENIED.
Dated: December 12, 2013
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
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