Oglala Sioux Tribe et al v. Van Hunnik et al
ORDER granting 24 Motion for Class Certification. Signed by Chief Judge Jeffrey L. Viken on 1/28/14. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
OGLALA SIOUX TRIBE and
ROSEBUD SIOUX TRIBE, as
parens patriae, to protect the rights
of their tribal members; and
ROCHELLE WALKING EAGLE,
MADONNA PAPPAN, and
LISA YOUNG, individually and on
behalf of all other persons similarly
LUANN VAN HUNNIK;
HON. JEFF DAVIS; and
KIM MALSAM-RYSDON, in their
ORDER GRANTING CLASS
Pending before the court is a motion for class certification filed by
plaintiffs. (Docket 24). Plaintiffs seek to certify this suit as a class action
pursuant to Fed. R. Civ. P. 23(a) and (b)(2). Id. Defendants oppose the motion.
(Dockets 28, 29, & 30 ). For the reasons stated below, the court grants
plaintiffs’ motion for class certification.
FACTS AND PROCEDURAL HISTORY
Plaintiffs Oglala Sioux Tribe, Rosebud Sioux Tribe, Rochelle Walking
Eagle, Madonna Pappan, and Lisa Young filed a complaint against defendants
Luann Van Hunnik, Mark Vargo, Hon. Jeff Davis, and Kim Malsam-Rysdon in
their official capacities. (Docket 1). The complaint asserts defendants’ policies,
practices and procedures relating to the removal of Native American children
from their homes during 48-hour hearings violate the Fourteenth Amendment’s
Due Process Clause and the Indian Child Welfare Act (ICWA). Id. Specifically,
plaintiffs contend defendants’ “policies, practices, and customs . . .
(1) remov[e] Indian children from their homes without affording them, their
parents, or their tribe a timely and adequate hearing as required by the Due
Process Clause, (2) remov[e] Indian children from their homes without affording
them, their parents, or their tribe a timely and adequate hearing as required by
the Indian Child Welfare Act, and (3) remov[e] Indian children from their homes
without affording them, their parents, or their tribe a timely and adequate
hearing and then coerce the parents into waiving their rights under the Due
Process Clause and Indian Child Welfare Act to such a hearing.” Id. at p. 3.
In a class action, “[o]ne or more members of a class may sue or be sued
as representative parties on behalf of all members[.]” Fed. R. Civ. P. 23(a). A
court may certify a class action only if all of the following requirements are met:
the class is so numerous that joinder of all members is
there are questions of law or fact common to the class;
the claims or defenses of the representative parties are typical
of the claims or defenses of the class; and
the representative parties will fairly and adequately protect the
interests of the class.
Id. The four prerequisites for class certification can be referred to as
(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of
representation. Paxton v. Union National Bank, 688 F.2d 552, 559 (8th Cir.
1982). “An action may be maintained as a class action only if all four
prerequisites of Rule 23(a) are satisfied and, in addition, one of the three
subsections of Rule 23(b) is met.” Pickett v. IBP, 197 F.R.D. 510, 513 (M.D. Al.
“When determining whether to grant class certification, the question is
not whether the plaintiffs will ultimately prevail on the merits, but rather
whether the plaintiffs have met the requirements of Rule 23(a).” Perez-Benites
v. Candy Brand, LLC, 267 F.R.D. 242, 246 (W.D. Ark. 2010) (citing Eisen v.
Carlisle and Jacquelin, 417 U.S. 156, 178 (1974)).
As the party seeking class certification, plaintiffs bear the burden of
demonstrating all prerequisites of Rule 23 are met. Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 614 (1997). The district court has broad discretion to
decide whether certification is appropriate, and its decision will be reversed
only for abuse of discretion. Rattray v. Woodbury County, IA, 614 F.3d 831,
835 (8th Cir. 2010).
Defendants initially argue plaintiffs’ motion for class certification is
premature and the definition of the class is overly broad, vague and
ambiguous. (Docket 28 at pp. 2-5). Defendants also argue plaintiffs do not
meet the Rule 23 requirements for class certification. Id. at pp. 5-13.
Whether plaintiffs’ motion is premature
Defendants argue plaintiffs’ motion for class certification is premature
because “[t]here are a number of jurisdictional requirements which have not
been met” as discussed in their motions to dismiss. (Docket 28 at p. 2). The
court entered its order denying defendants’ motions to dismiss so this
argument is moot. Defendants also contend plaintiffs’ motion is “premature
because discovery has not yet occurred” and argue “the Court does not have
the materials necessary to determine whether Plaintiffs have met their burden
under Rule 23.” Id. at pp. 2-3. Defendants suggest it is “disingenuous of
Plaintiffs to simultaneously claim both that expedited discovery is necessary
to prove their claims, and that they have met their burden for class
certification, under Rule 23, on a bare record.”1 Id. at p. 3 (emphasis in
As noted by plaintiffs, defendants opposed plaintiffs’ motion for
expedited discovery in part on the fact “plaintiffs [had] not yet moved to certify
the class.” (Docket 41 at p. 7) (citing Docket 18 at p. 10). Defendants argued
“[w]ithout . . . class certification, it is impossible to determine the proper scope
of discovery to be conducted.” (Docket 18 at p. 10). Defendants’ argument
here conflicts with defendants’ earlier position.
Under Rule 23(c)(1)(A), certification of class should be done “[a]t an early
practicable time after a person sues or is sued as a class representative.” Fed.
R. Civ. P. 23(c)(1)(A). The Supreme Court recognized Rule 23 class certification
may be “plain enough from the pleadings to determine whether the interests of
the absent parties are fairly encompassed within the named plaintiff’s claim.”
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). The pleadings
contain sufficient information for this court to determine whether class
certification is appropriate in this case. See In re Hartford Sales Practices
Litig., 192 F.R.D. 592, 602 n. 9 (D. Minn. 1999) (noting “pleadings alone can
conclusively show that the requirements of Rule 23 have been satisfied.”);
Fogie v. Rent-A-Car, 867 F. Supp. 1398, 1402 (D. Minn. 1993) (finding class
certification appropriate based on the “pleadings and a few affidavits regarding
the Rule 23(a) requirements.”). Although defendants suggest additional
discovery is necessary to determine whether class certification is appropriate,
defendants do not identify what “materials” are missing from the court’s
consideration of plaintiffs’ motion.
Defendants’ argument that plaintiffs’ motion for class certification is
inappropriate because plaintiffs also filed a motion for expedited discovery is
not persuasive. Plaintiffs’ allegations in the 39-page complaint make it clear
they are challenging the policies, practices and customs of defendants in
relation to the 48-hour child removal hearings held in state court. Attached to
plaintiffs’ complaint are two 48-hour hearing transcripts which plaintiffs assert
are reflective of other 48-hour hearings. A Rule 23 determination may be
based on the allegations in the complaint, and not whether plaintiffs will
ultimately succeed on the merits of those allegations. See Perez-Benites, 267
F.R.D. at 246; United Steel, 593 F.3d 802, 809 (9th Cir. 2010) (“ ‘the possibility
that a plaintiff will be unable to prove his allegations . . . is [not] a basis for
declining to certify a class which apparently satisfies [Rule 23].’ ”) (quoting
Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975)). Having reviewed the
pleadings in this case, the court finds plaintiffs’ motion is not premature.
Whether plaintiffs’ class definition is ambiguous
Plaintiffs Walking Eagle, Pappan and Young seek to represent a class
consisting of “all other members of federally recognized Indian tribes who
reside in Pennington County, South Dakota[,] and who, like the plaintiffs, are
parents or custodians of Indian children.” (Docket 24 at p. 2).
Defendants contend the proposed class is “ambiguous and lends itself to
standing issues, including conflicts of interest.” (Docket 28 at p. 4).
Defendants argue the proposed class definition “does not exclude parents and
guardians of Indian children who are not eligible for enrollment in any federally
recognized Indian tribe, and are therefore, not subject to 25 U.S.C. §§ 1901, et
seq.” Id. Defendants also argue the “definition offered by Plaintiffs assumes
that having a parent who is a member of a federally recognized tribe is
sufficient to be considered an ‘Indian child.’ ” Id. Defendants claim the
proposed class definition “would inappropriately include parents whose
parental rights have been terminated, but who would nevertheless qualify as
an Indian parent biologically.” Id. at p. 5.
Defendants’ arguments regarding plaintiffs’ proposed class definition are
easily resolved by reference to the definitions of “Indian child,” “custodian,”
“Indian tribe,” and “parent” provided in 25 U.S.C. § 1903:
“Indian child” means any unmarried person who is under
age eighteen and is either (a) a member of an Indian tribe
or (b) is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe.
“Indian custodian” means any Indian person who has
legal custody of an Indian child under tribal law or
custom or under State law or to whom temporary
physical care, custody, and control has been transferred
by the parent of such child.
“Indian tribe” means any Indian tribe, band, nation, or
other organized group or community of Indians
recognized as eligible for the services provided to Indians
by the Secretary because of their status as Indians,
including any Alaska Native village as defined in section
1602(c) of Title 43.
“Parent” means any biological parent or parents of an
Indian child or any Indian person who has lawfully
adopted an Indian child, including adoptions under tribal
law or custom. It does not include the unwed father
where paternity has not been acknowledged or
25 U.S.C. § 1903(4),(6),(8) & (9). Using these definitions, the court finds
plaintiffs’ class definition is not overly broad, vague or ambiguous.
The class, as defined by plaintiffs, includes the three named plaintiffs
and “all other members of federally recognized Indian tribes who reside in
Pennington County, South Dakota[,] and who, like the plaintiffs, are parents or
custodians of Indian children.” (Docket 24 at p. 2). According to the 2010
census, “there were 576 households in Pennington County in which members
of the Oglala Sioux Tribe were raising children under the age of 18, 195 such
households containing members of the Rosebud Sioux Tribe, and 57 Standing
Rock Sioux households.” (Dockets 25 at p. 4 & 25-1). Based on the census,
plaintiffs assert “the class would contain more than 800 adults using the very
conservative assumption that none of these households contains more than
one parent or custodian.” Id.
Defendants concede plaintiffs’ proposed class meets the requirements of
numerosity. (Docket 28 at p. 6). The court finds the “class is numerous
enough to make joinder impracticable.” Christina A. v. Bloomberg, 197 F.R.D.
664, 667 (D.S.D. 2000), see also Fed. R. Civ. P. 23(a)(1).
Rule 23(a) requires “questions of law or fact common to the class.” Fed.
R. Civ. P. 23(a)(2). It, however, “does not require that every question of law or
fact be common to every member of the class.” Paxton, 688 F.2d at 561. Rule
23(a)(2) may be satisfied “ ‘where the question of law linking the class members
is substantially related to the resolution of the litigation even though the
individuals are not identically situated.’ ” Id. (quotations omitted); see also
Lambertz-Brinkman v. Reisch, No. CIV 07-3040, 2008 WL 4774895, * 2 (D.S.D.
2008) (Commonality “does not require that every question of law or fact be
common to every member of the class.”).
Defendants argue the proposed class lacks commonality because each
“[a]buse and neglect case, particularly at the emergency custody stage, [is] an
intensely fact-specific process.” (Docket 28 at p. 7). Plaintiffs assert the
proposed class has at least eleven common questions of law which warrant
certification, including whether “a parent who may lose custody of his or her
child in one of Defendants’ 48-hour hearings have a right under the Due
Process Clause to receive, prior to the hearing, a copy of the state’s petition for
temporary custody.” (Docket 41 at p. 2).
Rule 23’s commonality element does not require an identical factual
scenario among each proposed class member. Paxton, 688 F.2d at 561. In
Paxton, the common question among the class was whether the defendant had
discriminatory employment practices. Id. The fact each member of the class
would be affected differently by the defendant’s policies did not preclude a
finding of commonality. Id. In Lambertz-Brinkman, the issue was “whether
the defendants ha[d] a policy or practice of denying to the inmates medication
or treatment that [had] been prescribed by a physician.” Lambertz-Brinkman,
2008 WL 4774895, *2 (D.S.D. 2008). The district court noted “[a]lthough each
individual member of the class may have had different experiences with regard
to medical and mental health care at the S.D. Women’s Prison, this does not
defeat commonality as the legal question ‘linking the class member’–whether
an illegal policy or practice exists–‘is substantially related to the resolution of
the litigation.’ ” Id. (citing DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1174
(8th Cir. 1995)).
The named plaintiffs, on behalf of the proposed class, seek a declaration
that defendants’ policies, practices or customs amount to or result in
deprivations of their constitutional and statutory rights. Whether these
policies, practices and customs violate plaintiffs’ procedural rights under the
Fourteenth Amendment and ICWA is a common legal question across the
proposed class. The fact each member of the class would be affected differently
by the defendants’ policies does not preclude a finding of commonality.
See Paxton, 688 F.2d at 561. This is sufficient to establish the commonality
requirement of Rule 23(a)(2). See DeBoer, 64 F.3d at 1174.
“The Eighth Circuit has interpreted typicality to mean that there are
‘other members of the class who have the same or similar grievances as the
plaintiff.’ ” Christina A., 197 F.R.D. at 668 (quoting Alpern v. UtiliCorp United,
Inc., 84 F.3d 1525, 1540 (8th Cir. 1996)). Rule 23’s typicality requirement is
not an onerous one. Paxton, 688 F.2d at 562. “Factual variations” in the
claims of the plaintiffs will not preclude class certification “if the claim arises
from the same event or course of conduct as the class claims and gives rise to
the same legal or remedial theory.” Alpern, 84 F.3d at 1540. “The burden of
demonstrating typicality is fairly easily met so long as other class members
have claims similar to the named plaintiff.” DeBoer, 64 F.3d at 1174.
Defendants argue the proposed class lacks typicality because “Plaintiffs’
class definition does not even require that the putative plaintiff[s] have an
interest in an emergency custody hearing in Pennington County, South
Dakota. Nor for that matter does it explain how parents who will be subject to
abuse and neglect proceedings in the future will be treated by comparison to
parents who have already been through an abuse and neglect [proceeding] in
the past.” (Docket 28 at pp. 8-9).
Despite defendants’ arguments, the possibility that underlying
differences exist in each case is not a reason for denying class certification.
See Alpern, 84 F.3d at 1540. The claims of the named plaintiffs are typical to
those of the proposed class. All allege defendants engage in policies, practices
and customs depriving them of constitutional and statutory rights to timely
and adequate hearings and notice when the state removes Indian children from
their homes. “The fact that each named Plaintiff has personally experienced a
different combination of these [customs], policies and practices does not defeat
the typicality of the claims because everyone in the class is subject to them.”
Christina A., 197 F.R.D. at 668. The court finds the typicality requirement of
Rule 23(a)(3) is satisfied.
Adequacy of representation
“ ‘The adequate representation inquiry involves questions of whether the
plaintiffs’ counsel are qualified, experienced, and generally able to conduct the
proposed litigation.’ ” Lambertz-Brinkman, 2008 WL 4774895, *3 (quoting
Pickett, 197 F.R.D. at 514). “The Eighth Circuit has found that the focus of
this requirement is whether: ‘(1) the class representatives have common
interests with the members of the class, and (2) whether the class
representatives will vigorously prosecute the interest of the class through
qualified counsel.” Christina A., 197 F.R.D. at 670 (quoting Paxton, 688 F.2d
The court finds counsel for the named plaintiffs have demonstrated they
are qualified and competent to conduct the litigation. Defendants do not argue
to the contrary.
Defendants argue a conflict may arise between the class and one of the
tribal plaintiffs because it is not unforeseeable that the tribal plaintiffs’ interest
may differ from the individual plaintiffs’ interests. Rule 23(a)(4) relates to
potential conflicts within the class itself. Plaintiffs Walking Eagle, Pappan and
Young are not proposing to include the Oglala Sioux Tribe and the Rosebud
Sioux Tribe as members of the class. The relevant question is whether conflicts
will arise between the named plaintiffs and the proposed class. The plaintiffs
in this case are seeking the same remedy. There are no individual claims.
Rather, the interests of the named plaintiffs and the proposed class members
are common and the court “does not foresee any real possibility of conflicts
between the named Plaintiffs and the other members of the [proposed] class.”
Christina A., 197 F.R.D. at p. 670. The court will not speculate in order to
find potential conflicts. The court finds the adequacy of representation
requirements of Rule 23(a)(4) are satisfied.
Rule 23(b) prerequisites
Where the requirements of Rule 23(a) are met, plaintiffs still must satisfy
the requirements of Rule 23(b). Rule 23(b)(2) states:
A class action may be maintained if Rule 23(a) is satisfied
(2) the party opposing the class has acted or refused to
act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole.
Fed. R. Civ. P. 23(b)(2).
“A Rule 23(b) class is proper . . . where the only relief sought is
declaratory and injunctive relief.” Lambertz-Brinkman, 2008 WL 4774895, *4
(citing In re St. Jude Medical, Inc., 425 F.3d 1116, 1121 (8th Cir. 2005)). In
this case, the focus of plaintiffs’ complaint is whether defendants have pursued
policies, practices and customs which violate their constitutional and statutory
rights. If plaintiffs prove this claim, then each member of the class would be
entitled to the same injunctive or declaratory relief. See id. The court finds the
proposed class is cohesive and certification of the class under Rule 23(b)(2) is
appropriate. See In re St. Jude, 425 F.3d at 1121 (noting class certification
under Rule 23(b)(2) requires the claims be cohesive).
In accord with the above discussion, it is hereby
ORDERED that plaintiffs’ motion for class certification (Docket 24) is
IT IS FURTHER ORDERED that this action shall be maintained as a
class action on behalf of the following class of plaintiffs:
Rochelle Walking Eagle, Madonna Pappan and Lisa
Young and all other members of federally recognized
Indian tribes who reside in Pennington County, South
Dakota, and who, like plaintiffs, are parents or
custodians of Indian children.
The terms “Indian children”, “custodians,” “Indian tribes,” and “parents”
shall be interpreted using the definitions provided in 25 U.S.C. § 1903.
IT IS FURTHER ORDERED that class certification is granted for the
purpose of litigating the following issues in this case:
Whether defendants maintain policies, practices or
customs related to the removal of Indian children
from their homes without affording them, their
parents, custodians, or tribes a timely and
adequate hearing in violation of the Fourteenth
Amendment’s Due Process Clause;
Whether defendants maintain policies, practices or
customs related to the removal of Indian children
from their homes without affording them, their
parents, custodians or tribes a timely and adequate
hearing in violation of the Indian Child Welfare Act;
Whether defendants maintain policies, practices or
customs which coerce parents or custodians into
waiving their rights under the Fourteenth
Amendment’s Due Process Clause and the Indian
Child Welfare Act to such a hearing.
IT IS FURTHER ORDERED that no notice to the class is required
at this time.
IT IS FURTHER ORDERED that Rochelle Walking Eagle, Madonna
Pappan and Lisa Young are designated as class representatives. Dana
Hanna, Stephen L. Pevar and Rachel E. Goodman are designated as class
Dated January 28, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
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