Oglala Sioux Tribe et al v. Van Hunnik et al
ORDER denying 310 Motion to Stay and 315 and 322 Joinder Motions. Signed by Chief Judge Jeffrey L. Viken on 2/9/17. (SB)
UN ITED STATES D ISTR ICT COURT
D ISTRICT OF SOUTH DAKOTA
WESTERN D IV IS ION
C IV. 13-5020-JLV
OGLALA S IOUX TR IBE and ROSEBUD
S IOUX TR IBE, as parens patriae, to
protect the rights of their tribal
members; MADONNA PAPPAN, and
L ISA YOUNG, individually and on behalf
of all other persons similarly situated,
L ISA FLEM ING; MARK VARGO;
HONORABLE CRA IG PFE IFLE; and
LYNNE A. VALENT I, in their official
On December 15, 201 6, the court entered three orders and a permanent
(Dockets 301-30 4).
On January 13, 201 7, the defendants
appealed the orders and permanent injunction as well as previous orders of the
(Dockets 309, 312 & 321).
At the same time, Defendant Mark Vargo
filed a motion to stay portions of the declaratory judgment and to suspend
portions of the permanent injunction pending appeal ("motion to stay'' ).
The other defendants join in Mr. Vargo's motion to stay.
Plaintiffs oppose the motion to stay.
stated below, the motion to stay is denied.
For the reasons
Mr. 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 & 30 4).
. . . ."
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).
claims the court's decision "fails to protect Indian children from imminent
emotional damage or harm. "
Id. at pp. 2-3.
Mr. 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
(June 1 4, 201 6)).
25 CFR§ 23.
Id. at p. 4 (referencing 81 Fed. Reg. 38778
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
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
Id. (parentheses in original; emphasis
omitted) (referencing 81 Fed. Reg. at 38794).
Mr. 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. "
(referencing Guidelines C. 2 and C.3).
Id. at p. 6 (emphasis omitted)
Mr. Vargo also believes the Frequently
Asked Questions section of the Final Rule Proceedings of June 1 7, 201 6, 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. "
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.
Mr. 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
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."
In 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
(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).
"[§] 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. "
Plaintiffs 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. "
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.
Vargo has shown no reason why he should be allowed to continue his persistent
violations of ICWA. l
Id. at p. 6.
In 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).
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
1The court informally invited Mr. Vargo and the other defendants to file
reply briefs in support of the motion to stay on or before February 3, 2017, but
the defendants chose not to do so.
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
Nken v. Holder, 556 U.S. 418, 433-3 4 (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
30 4), the court makes the following findings.
First, 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;
21 7 at pp. 20-21 ; 302 at pp. 7-1 7 & 21-24.
The court considered the Executive Summary to the 2016 ICWA
regulations referenced by Mr. Vargo.
See Docket 301 at pp. 5-6.
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 damage or harm . . . . ICWA
requires that an emergency proceeding terminate immediately when
the removal or placement is no longer necessary to prevent
imminent physical damage or harm to the child. "
Id. at p. 5 (referencing 81 Fed. Reg. at 38 793- 94 & 3881 7).
argument repeats the same position previously rejected by this court.
269 at p. 8).
Mr. Vargo's interpretation of the Executive Summary is inaccurate
and is not an appropriate application of the Executive Summary to the issue
before the court.
Second, neither Mr. Vargo nor the other defendants will suffer harm, either
personally or professionally, absent a stay of the permanent injunction.
court stated in its earlier decision:
During an emergency proceeding involving the removal of an Indian
child from the custody of an Indian parent or custodian and the
subsequent determination of whether the child should be returned
to the custody of the parent or custodian without initiation of an
abuse and neglect petition, "the emergency removal or placement "
must "terminate immediately when such removal or placement is no
longer necessary to prevent imminent physical damage or harm to
the child . . . . " By contrast, subsequent child-custody adjudication
hearings are bound by the language of § 191 2, which states: "No
foster care placement may be ordered in such proceeding in the
absence of a determination, supported by clear and convincing
evidence . . . that the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or physical
damage to the child. "
(Docket 301 at pp. 4 and 5 n. 4) (emphasis added) (citing 25 U. S. C. § 1922 and
§ 1912) (" 1912 standard ").
"The distinction between the§ 1922 standard and
the§ 1912 standard was intentional. "
(Docket 301 at p. 6).
intended§ 1922 to be limited solely to 'imminent physical damage or harm' in
determining whether to initiate or terminate emergency proceedings. "
If Mr. Vargo believes an Indian child is suffering emotional damage or
harm, he can initiate an abuse and neglect petition under South Dakota law as
authorized by§ 1912.
In an abuse and neglect proceeding, continued custody
of an Indian child by the Department of Social Services may occur if the child is
subjected to "serious emotional or physical damage."
25 U. S.C. § 1912.
Third, the interests of the plaintiffs will continue to suffer harm through
the actions of the defendants if a stay of the permanent injunction is granted.2
It is undisputed that "in approximately seventy-five percent of Indian custody
cases [conducted pursuant to§ 1922], continued custody is sought based
exclusively on emotional damage."
(Docket 301 at p. 2) (references to the record
omitted). Accepting Mr. Vargo's status quo argument would constitute an
injustice for the hundreds of Indian parents, custodians and children who have
been subjected to the defective Seventh Judicial Circuit 48-hour emergency
hearing procedures these past six years and to those who would continue to
suffer a violation of their rights if the court stays its injunction and order.
Fourth, the public interest lies in proper application of§ 1922's emergency
hearing and child removal procedures.
Protection of every citizen's
2"Since January 2010, approximately one hundred 48-hour hearings
involving Indian children are held each year in Pennington County. " (Docket
302 at p. 5). "The undisputed testimony at the remedies hearing indicates this
figure remained constant for 2015 and the 2016 figure will be approximately the
same. " Id. at p. 5 n. 7.
constitutional and statutory rights is fundamental to protecting the public
This court will not stay or suspend its remedial order and injunction
because it concluded that "Defendants' only consistent policy for handling the
ICWA and Due Process Rights of Indian children, parents, custodians and tribes
is defendants' violation of those rights. "
(Docket 302 at p. 7) (capitalization
After balancing all four factors, the court finds Mr. Vargo has not carried
his burden to warrant a stay of the declaratory judgment order or the permanent
Accordingly, it is
ORDERED that defendant Mark Vargo's motion (Docket 310) and the
joinder motions of the other defendants (Dockets 315 & 322) to stay portions of
the declaratory judgment (Docket 303) and to suspend portions of the permanent
injunction (Docket 304) are denied.
Dated February 9, 2017.
BY THE COURT:
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