Oglala Sioux Tribe et al v. Van Hunnik et al, No. 5:2013cv05020 - Document 302 (D.S.D. 2016)

Court Description: ORDER granting 1 at page 38 -- Plaintiffs' request for a declaratory judgment and granting in part 1 at page 38-39 -- Plaintiffs' request for injunctive relief. Plaintiffs' request for appointment of a monitor is denied without prejudice as premature. Signed by Chief Judge Jeffrey L. Viken on 12/15/16. (SB)

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Oglala Sioux Tribe et al v. Van Hunnik et al Doc. 302 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION OGLALA SIOUX TRIBE and ROSEBUD SIOUX TRIBE, as parens patriae, to protect the rights of their tribal members; MADONNA PAPPAN, and LISA YOUNG, individually and on behalf of all other persons similarly situated, CIV. 13-5020-JLV ORDER Plaintifs, vs. LISA FLEMING; MARK VARGO; HONORABLE CRAIG PFEIFLE; and LYNNE A. VALENTI, in their oficial capacities, Defendants. I. Preliminary Statement The defendants continue to disregard this court's March 30, 2015, partial summay judgment order. That order outlined the defendants' violations of the rights of Indian children, parents, custodians and tribes guaranteed by the Due Process Clause of the Fourteenth Amendment and by the Indian Child Welare Act. Notwithstanding testimony conirming that South Dakota Circuit Court Judges in Meade Couny, Brown Couny, Hughes Couny and Minnehaha Couny are conducting adversarial hearings in accord with the March 2015 order prior to the extended removal of Indian children rom their homes, defendants refuse to reorm their violative policies and practices. The court repeatedly invited the defendants to propose a plan or compliance with their constitutional and statutory obligations but the defendants rejected that opportuniy. Dockets.Justia.com This order discusses the need and the authoriy or this court to impose remedies to vindicate plaintifs' rights. Orders or declaratory and injunctive relief are iled simultaneously with this order. II. Procedural History On March 21, 20 13, plaintifs iled this civil rights action pursuant to 42 U.S.C. § 1983 asserting defendants' policies, practices and procedures relating to the removal of Native American children rom their homes during state court 48-hour hearings 1 violate the Indian Child Welare Act ("ICWA")2 and the Due Process Clause of the Fourteenth Amendment. denied plaintifs' claims. (Dockets 76, 80 & (Docket 1). Defendants 8 1). On July 11, 20 14, plaintifs iled two separate motions or partial summary judgment. (Dockets 108 & 110). Those motions will be identiied as the "Section 1922 Claims" (Docket 110) and the "Due Process Claims" (Docket 108). Following extensive submissions by the parties, on March 30, 2015, the court entered an order granting plaintifs' motions ("20 15 order"). p. 44). (Docket 150 at By the 2015 order, the court reserved ruling on plaintifs' request or declaratoy and injunctive relief. Id. On August 17, 2016, a hearing was held to address plaintifs' prayer or relief ("remedies hearing"). (Docket 277). For 1 SDCL § 26-7A- 14 directs "no child may be held in temporay custody longer than ory-eight hours . . . excluding Saturdays, Sundays, and court holidays, unless a . . . petition has been iled . . . and the court orders longer custody during a noticed hearing . . . ." These proceedings are commonly referred to as a "48-hour hearing." 225 U.S.C. § 190 1 et seq. 2 the reasons stated below, plaintifs' request or a declaratory judgment is granted, plaintifs' request or injunctive relief is granted in part and plaintifs' request or appointment of a monitor is denied without prejudice as premature. Plaintifs Oglala Sioux Tribe and Rosebud Sioux Tribe are Indian tribes oicially recognized by the United States with reservations located within the State of South Dakota. the federal government. tribes. (Docket 150 at p. 1 1). Id. Both tribes have treaties with The court granted parens patriae status to both (Docket 69 at p. 17). Plaintifs Madonna Pappan and Lisa Young reside in Pennington Couny, South Dakota, and are members of the Oglala Sioux Tribe and the Standing Rock Sioux Tribe, respectively. (Docket 150 at p. 1 1). The court certiied these individual plaintifs as class representatives or all similarly situated Indian parents. (Docket 70 at pp. 14- 15). The class of plaintifs includes "all other members of federally recognized Indian tribes who reside in Pennington Couny, South Dakota, and who, like plaintifs, are parents or custodians of Indian children." Id. at p. 14. Defendant Lynne A. Valenti is the Secretary of the South Dakota Department of Social Services ("DSS").3 Id. Defendant Lisa Fleming is the person in charge of DSS Child Protection Services ("CPS") or Pennington Couny, 3Pursuant to Fed. R. Civ. P. 25(d), Ms. Valenti was substituted as a proper pary in her oicial capacity efective February 24, 20 14. (Docket 150 at p. 1 1 n. 12). 3 South Dakota.4 In state court cases involving Ms. Pappan and Ms. Young, CPS employees under their supervision signed ICWA aidavits alleging the children of these Indian parents were at risk of serious injury if the children remained at home. (Docket 2 17 at p. 6). Defendant Mark Vargo is the duly elected States Attorney or Pennington Couny. (Docket 150 at p. 1 1). A Deputy States Attorney under States Attorney Vargo's supervision prepares the petitions or temporary custody or all ICWA cases. (Docket 2 17 at p. 6). Defendant Craig Pfeile is the presiding judge of the Seventh Judicial Circuit Court of the State of South Dakota and is the chief administrator of the Seventh Judicial Circuit Court.5 Section 1922 of ICWA states: Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located of the reservation, rom his parent or Indian custodian or the emergency placement of such child in a oster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. The State authority, oicial, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the 4Pursuant to Fed. R. Civ. P. 25(d), Ms. Fleming was substituted as a proper pary in her oicial capaciy efective March 7, 20 16. See Dockets 22 1 & 226. sQn May 2 1, 2015, Circuit Court Judge Craig Pfeile was appointed presiding judge of the Seventh Judicial Circuit by the Chief Justice of the South Dakota Supreme Court. (Docket 226 at p. 1 n.1) (referencing Docket 205 if 4). Pursuant to Fed. R. Civ. P. 25(d), Judge Pfeile was substituted as a proper party in his oficial capaciy efective March 7, 20 16. See Dockets 205, 222 & 226. 4 jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate. 25 u.s.c. § 1922. Since January 2010, approximately one hundred 48-hour hearings involving Indian children6 are held each year in Pennington Couny. 150 at p. 12).7 (Docket In March 2015, the court ound that despite "the clear intent of ICWA, the [Department of the Interior] Guideliness and the SD Guidelines,9 all of which contemplate evidence will be presented on the record in open court, Judge DavislO relied on the ICWA aidavit and petition or temporary custody which routinely are disclosed only to him and not to the Indian parents, their attorney or custodians. " (Docket 150 at pp. 34-35). These undisclosed 6Unless otherwise indicated, all references to "child(ren), " "parent(s), " and "custodian(s)" will mean Indians as that term is deined by 25 U. S.C. § 1903(3). 7The undisputed testimony at the remedies hearing indicates this igure remained constant or 2015 and the 2016 igure will be approximately the same. sThe Department of Interior Guidelines or State Courts; Indian Child Custody Proceedings ("DOI Guidelines") were promulgated to aid in the interpretation of ICWA's provisions. 44 Fed. Reg. 67584-67595 (Nov. 26, 1979). The DOI Guidelines were revised on Februay 19, 2015 ("DOI Revised Guidelines"). (Docket 150 at p. 29). The DOI Regulations were updated December 12, 2016. See 8 1 Fed. Reg. 38778-38876 (June 14, 2016) and 25 CFR part 23. 9"South Dakota Guidelines or Judicial Process in Child Abuse and Neglect Cases" were available as of March 30, 2015, at http://ujs.sd.gov/ uploads/pubs/SDGuidelinesAandNProceedings.pdf. (Docket 150 at p. 32 n.29). 10Judge Davis was the Presiding Judge of the Seventh Judicial Circuit and the judge presiding over most 48-hour hearings during the time rame of 2010 to 2013. 5 documents are not subject to cross-examination or challenge by the presentation of contradictory evidence. "authoze Id. at p. 35. The practice of the state court was to DSS to perorm the function of determining if, or when, the imminent risk of physical harm to an Indian child has passed and to restore custody to the child's parents . . . . This authorization vests full discretion in DSS to make the decision if and when an Indian child may be reunited with the parents. " (italics in original; internal citations omitted). Id. The court ound this "abdication of judicial authoriy " violated "the protections guaranteed Indian parents, children and tribes under ICWA. " Id. In the March 20 15 order, the court ound the defendants violated plaintifs' due process rights under the Fourteenth Amendment during the course of 48-hour hearings. summarized as ollows: (Docket 150 at pp. 36-42). The violations are ( 1) failing to appoint counsel in advance of the 48-hour hearing; (2) ailing to provide notice of the claims against Indian parents, the issues to be resolved and the state's burden of proof; (3) denial of the right to cross-examine adverse witnesses; (4) denying Indian parents or custodians the right to present evidence in their own defense; and (5) removing Indian children on grounds not based on evidence presented in the hearing. 6 Id. III. 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 During the August 17, 2016, remedies hearing, the court admitted the transcripts of the deposition of Virgena Wieseler, Director of the Division of Child Protection Services, and Cara Beers, Program Specialist or Training, within the South Dakota Department of Social Services. 2). (Remedies Hearing Exhibits 1 and Ms. Wieseler testiied that ollowing the 20 15 order and through the date of her July 20, 20 16, deposition, CPS made a decision not to apply the § 1922 standard in training CPS staf. 133:25). (Remedies Hearing Exhibit 1 at pp. 128: 15- Ms. Beers testiied during her July 21, 20 16, deposition that DSS had (Remedies not developed any new training or its staf based on the 20 15 order. Hearing Exhibit 2 at p. 96: 15-21). During the remedies hearing, counsel argued the DSS defendants were in full compliance with their obligations under South Dakota state law and federal law but ofered no supporting evidence. States Attorney Vargo and Deputy States Attorney Roxanne Erickson testiied during the remedies hearing. Mr. Vargo acknowledged having read plaintifs' March 2 1, 20 13, complaint sometime after it was served. at p. 33:22-24). (Docket 286 The complaint speciically alleged that at 48-hour hearings: [Indian parents] were (a) not allowed to see the petition, (b) not allowed to see the aidavit, (c) not allowed to cross-examine the person who submitted the aidavit, (d) not allowed to ofer any evidence contesting the allegations, (e) not allowed to ofer any evidence as to whether the state had made active eforts to prevent the break-up of the amily, and () not allowed to ofer any evidence 7 regarding whether removal of their children was the least restrictive alternative. The only "evidence" mentioned at the hearing were hearsay statements rom the state's attorney. (Docket 1 if 5 1). Addressing the defendants' motions to dismiss in a January 28, 20 14, order ("20 14 order"), the court held that " [o]ne of the core purposes of the Due Process Clause is to provide individuals with notice of claims against them. In this case, taking the allegations in the complaint as true, the court inds the risk of erroneous deprivation high when Indian parents are not aforded the opportunity to know what the petition against them alleges. . . . Keeping Indian parents in the dark as to the allegations against them while removing a child rom the home or 60 to 90 days certainly raises a due process issue. . . . The petition and aidavit are provided to the presiding judge and can at very little cost be provided to Indian parents. " (Docket 69 at pp. 38-39). Mr. Vargo testiied that after reviewing the complaint and the 2014 order he felt the need to conduct his own research to resolve the issues raised in plaintifs' complaint. (Docket 286 at pp. 36: 19-37:4). It was not until May 2014 that he concluded a copy of the petition for temporary custody should be provided to Indian parents at the 48-hour hearing. Id. at p. 36:8- 18. It was 14 months after the complaint was iled and 4 months after the 2014 order that Mr. Vargo acknowledged this basic due process principle. Yet even at the remedies hearing Mr. Vargo testiied Indian parents have no constitutional right to the 8 petition or temporary custody in advance of a 48-hour hearing so long as they are inormed about the content of the petition. Id. at p. 43:24-25. Mr. Vargo testiied he never speciically examined the 20 15 order or the purpose of curing any constitutional deiciencies occurring in 48-hour hearings. Id. at p. 46:4-9. He had no explanation as to why he did not review the order and discuss its content with Depuy States Attorney Roxanne Erickson who handles most 48-hour hearings. Id. at p. 49:5-25. He claims it was not until reading plaintifs' April 20, 20 16, remedies brief that he became aware of potential continuing ICWA violations. Id. at pp. 50: 18-5 1:4. During the remedies hearing on August 17, 20 16, Mr. Vargo instructed Ms. Erickson to change the petition or temporary custody to include ICWA language, although he was not speciic as to what language would be included. Id. at p. 52:23-24. He asserted he gave this directive even though he believed no change in the petition was necessary since the ICWA aidavit prepared by the CPS staf member contains language about ICWA. Id. at p. 55: 18-20. Mr. Vargo insists it would not be an appropriate remedy to require his oice to include the § 1922 standard or the removal of Indian children in future petitions or temporary custody. Id. at p. 56: 6-7 & 9-2 1. Mr. Vargo testiied he initiated a policy that regardless of the outcome of a 48-hour hearing, a second hearing would be held within 15 days. Id. at p. 59: 14- 18. He could not recall when this policy was initiated and did not 9 testify that the judges of the Seventh Judicial Circuit were incorporating this second hearing into all ICWA proceedings. Mr. Vargo acknowledged Ms. Erickson brought to his attention the act that South Dakota Circuit Court Judges in Meade County, Brown County, Hughes Couny and Minnehaha Couny were conducting adversarial 48-hour hearings. Id. at p. 63: 10-23. Other than this general knowledge, Mr. Vargo made no inquiry of Ms. Erickson or the States Attorneys in those counties to determine the impact adversarial 48-hour hearings had on their courts' dockets. Id. at p. 69: 13-20. Mr. Vargo testiied he did not make the inquiry because he felt it would not be helpful since those counties did not have the same number of 48-hour hearings involving Indian amilies as did Pennington Couny. Id. at pp. 69:22-70:5. Ms. Erickson testiied that since 20 1 1 she has been the principal Deputy States Attorney assigned in Pennington County to handle 48-hour hearings. Id. at p. 73:5-7. She testiied that since June 2002 she has handled approximately 1,000 abuse and neglect cases. Id. at p. 72:23-73: 10. She said the Pennington County Circuit Court ypically conducts 48-hour hearings every Monday at 1 :30 p.m. and every Thursday at 1 p.m. Id. at p. 73: 18-25. She estimated there are about one hundred 48-hour hearings involving Indian children each year and that approximately 50 percent of all 48-hour hearings in the couny involve Indian children. Id. at p. 74: 1- 13. Ms. Erickson stated that twice a week there could be rom one to ive 48-hour hearings conducted. 10 Id. at p. 1 10:6- 10. If ive hearings are held, they can require a total of one hour of court time. Id. Ms. Erickson testiied Circuit Judge Robert Gusinsky took over all abuse and neglect proceedings in mid-January 20 16. Id. at p. 83:4-9. She indicated he was well aware of this ICWA lawsuit and conducted his own legal research into the issues raised by plaintifs. Id. at pp. 84: 15-85: 1. Ms. Erickson testiied that around April 20 16 Judge Gusinsy held a meeting with her, Attorney Dana Hanna as counsel or plaintifs, and Attorney Daniel Leon of the Pennington Couny Public Defender's Oice to discuss 48-hour hearings and ICWA.1 1 Judge Gusinsy requested brieing beore the meeting on a number of issues, including which standard applied to 48-hour hearings: the South Dakota state standard or the § 1922 standard. Id. at p. 75:8- 14. In the States Attorney's submission to Judge Gusinsy, Ms. Erickson argued Cheyenne River Sioux Tribe v. Davis, 822 N.W.2d 62 ( S.D. 20 12), applied to 48-hour hearings and not § 1922. Id. at pp. 77:23-78: 1; see also Docket 239-6 at p. 10:9- 18. According to Ms. Erickson, ollowing the meeting Judge Gusinsy concluded that ( 1) § 1922 was the correct standard to apply; (2) DSS should change the temporay custody order to conorm to § 1922; (3) the ICWA aidavit prepared by CPS staf should incorporate § 1922; (4) Indian parents and their nDuring the course of a 48-hour hearing on April 18, 20 16, Judge Gusinsy engaged in a discussion with the same attorneys about the 20 15 order, § 1922 and their impact on the proceeding. (Docket 239-6 at pp. 6:24- 13:6). 11 attorneys should have access to the record at some time; (5) Judge Gusinsy would accept as factually true the aidavits and police reports presented to him during 48-hour hearings, but if there were any actual objections lodged, he would accept an ofer of proof rom the States Attorney and then allow a hearing at a later date. (Docket 286 at pp. 76:7-77:2). Ms. Erickson testiied Judge Gusinsy now appoints counsel to indigent Indian parents at the 48-hour hearing and makes sure they have the petition or temporay custody and the ICWA afidavit signed by a CPS staf member. Judge Gusinsy receives medical records, which may be made available to the attorneys present, but those records are not given to parents who are without counsel. Id. at p. 100:7-15. Judge Gusinsy considers any relevant police reports or summaries of the reports in the ICWA aidavit, but he does not allow police reports to be given to parents at a 48-hour hearing because of state law.12 Id. at pp. 96:24-97 : 15. Ms. Erickson testiied Judge Gusinsy does not allow any testimony during any 48-hour hearing and that or the past three years no Seventh Circuit Judge has permitted live testimony at any 48-hour hearing. Id. at p. 8 1:3-6. She testiied Judge Gusinsky does not allow parents or their attorneys to cross-examine any 12The reference is to SDCL §§ 26-7A-27 and 26-27A-29 which prohibit disclosure of police reports to a parent or a parent's attorney without a court order. 12 witnesses until three or our months later at the adjudicatoy hearing. 13 Id. at p. 85 :8-17. Unless Judge Gusinsy retains supervision over abuse and neglect cases through June 2017, Ms. Erickson testiied a diferent Seventh Circuit Judge will be assigned by Presiding Judge Pfeile to take over those cases beginning in Januay 2017. Id. at pp. 111:21-112:6. She observed that since 2002 the abuse and neglect case procedures changed with every Seventh Circuit Judge assignment. Id. at p. 82: 13. Ms. Erickson testiied that after the 2015 order she attended a states attorney's conference and spoke with other South Dakota States Attorneys or deputies handling 48-hour hearings involving Indian amilies. pp. 104:12-105:8. Id. at She also visited with some of those attorneys at other times about how they handle 48-hour hearings. Id. Ms. Erickson testiied our counties in South Dakota, Meade, Brown, Hughes and Minnehaha, conduct 48-hour hearings as full adversarial hearings. Id. at pp. 105:10-106 : 18. In each couny, sworn live testimony is presented and the CPS worker and other witnesses are subject to cross-examination by Indian parents or their attorneys. Id. When she brought this inormation to Mr. Vargo's attention, they did not discuss the details of how the other counties were conducting adversarial 13Under South Dakota law, at an adjudicatoy hearing the circuit court judge "shall consider whether the allegations of the petition are supported by clear and convincing evidence concerning an alleged abused or neglected child " SDCL § 26-7A-82. 13 hearings. Ms. Erickson never broached the subject with Judge Gusinsy. Id. at p. 107: 1-5. Ms. Erickson testiied in her May 25, 20 16, deposition that Mr. Vargo never discussed with her how the States Attorney's Ofice could reconcile the 20 15 order with Cheyenne River Sioux Tribe v. Davis. See Remedies Hearing Exhibit 3 at p. 19: 19-23. Mr. Vargo's 15-day hearing proposal was not presented in his remedies brief as a justiication or opposing declaratoy judgment or injunctive relief. See Docket 257. There is a reference to a 14-day hearing proposal in an aidavit of Luann Van Hunnik. See Docket 132-1 ii! 81-85. Apparently beginning in September 20 13 a policy was implemented that a "continued temporay custody hearing[] [would be] ypically scheduled within ourteen days of the 48 hour hearing. " Id. f 85. At this status hearing a "Report to the Court" would be presented and "if an additional hearing [was] required, CPS staf will usually request that an advisory hearing be scheduled within thirty days. " f 85. Id. Defendants ofer no evidence this plan was adopted by all the Seventh Circuit Judges. For the same reasons expressed in the 2015 order, this "status hearing" procedure does not satisfy the ICWA rights or due process rights of Indian parents, their children, custodians or tribes. See Docket 150 at pp. 36-42. As recently as April 18, 20 16, Judge Gusinsy ollowed a diferent procedural policy. See Docket 239-6 at p. 4. During a 48-hour hearing, Judge Gusinsky held " [t]his is a temporary custody hearing. 14 I will make the determination as to whether up to 60 days continued temporary custody of the children is appropriate based upon the inormation provided to me. 14 Id. at " p. 4: 14- 18. See also Docket 239-3 at p. 4:5-9 (April 4, 20 16, 48-hour hearing with the same approach by Judge Gusinsy). Illustrative of how 48-hour hearings were conducted in 20 14 by Circuit Court Judge Robert Mandel is the ollowing pronouncement to Indian parents: This is the time and place or the temporary custody of your children. What happens today is I consider the State's request or continued temporary custody of the children. The children have come to the attention of the Department of Social Services. When that happens, the matter comes beore me or determination as to whether the State's request or continued temporary custody is in the children's best interests. This [is] an inormal proceeding, and by that I mean there's no testimony taken. I rely upon the inormation that is provided to me here today to make a determination as to whether continued temporary custody is appropriate and in the children's best interests. At this point in time, there's not been a ormal petition alleging that the children are abused and neglected iled. That certainly can happen. You need to know that in the event that the State does ile a ormal petition, you have certain rights. You will have the right to have a hearing on the petition at which time the State would be required to prove by clear and convincing evidence the allegations in that petition. You would have the right to have the assistance of counsel, and if you're unable to aford counsel, one would be appointed or you. You'd have the right to ask me to order the attendance of witnesses to testify on your behalf and you'd have the right to cross-examine any witnesses that the State might present at that hearing. What you need to know or the purposes of today's hearing is that the maximum possible consequences that can occur, in the event a ormal petition is iled and in the event that the State proves those allegations, could be the termination of your parental rights and the 14Under South Dakota law, a temporay custody order must be reviewed every 60 days. SDCL § 26-7A- 19(2). 15 placement of the children with the State of South Dakota or purposes of adoption. That's not where we're at today. This is a temporay custody hearing. I can make a determination as to whether continued temporary custody of the children is appropriate based upon the inormation provided to me or a period of up to 60 days. (Docket 118- 1 at pp. 469: 15-47 1:7). 15 Attorney, Judge Mandel ruled: After hearing rom the Depuy States "I am going to grant the temporary custody [to DSS] or a period of 16 days and I will continue this hearing [to a time and date]. I'm not going to appoint counsel at this time, but depending where we're going, we'll see about it when we're there. " Id. at p. 473: 18-23. Between January 24 and July 3 1, 20 14, Judge Mandel set temporary custody hearings inconsistently anwhere between 12 and 70 days into the future.16 On April 24, 2015, Judge Mandel e-mailed to Ms. Erickson, Eric Whitcher, the Director of the Pennington Couny Public Defender's Oice, and Mr. Hanna a copy of an article entitled, "Federal law in the state courts---The freedom of state courts to ignore interpretations of federal law by lower federal courts,'' Steven H. Steinglass, 1 Section 1983 Litigation in State Courts § 5:8 (20 14). See Docket 239-2 at pp. 2-8. In his e-mail, Judge Mandel advised "I'm passing this article issee also Dockets 1 18-1 at pp. 479: 1 1-48 1:1; 132-31 at pp. 29: 19-3 1:7; 132-3 1 at pp. 36:13-38: 1; 132-3 1 at pp. 49:2-50:15; 132:31 at pp. 56: 13-58: 1; 132-3 1 at pp. 69:1 1-70:22; 132-31 at pp. 75: 10-76:23; 132-3 1 at pp. 105: 19107:6. These hearings occurred between January 24, 2014, and July 3 1, 2014. See id. -- I6See Dockets 1 18- 1 at p. 483:7- 1 1 ( 14 days); 132-3 1 at p. 33:9- 13 ( 14 days); 132-3 1 at p. 53:4-6 ( 15 days); 132-31 at p. 66:9- 11 (70 days); 132-3 1 at p. 72:9-1 1 (14 days); 132-31 at p. 78:21-23 (45 days); 132-3 1 at p. 1 11:6-8 (12 days); 239-6 at p. 8: 19-2 1 ( 14 days); and 239-6 at p. 14:6-8 ( 14 days). 16 along, as I think it is of interest in this matter and accurately states the law. " at p. 1. Id. While Judge Mandel may believe the article accurately states the law, it must be pointed out the author cautioned readers: "The issue of whether state courts should give precedential value to lower federal court cases is diferent rom the application of the principles of preclusion against parties who have had issues decided against them. " Id. at p. 5 n.4. In May 2015, Presiding Judge Pfeile made clear his position regarding the state court's response to the 20 15 order. He declared: It is my obligation at this point in time to ollow the law that the South Dakota Supreme Court has provided to me. Whether or not I agree with Judge Viken in my estimation is not relevant to the inquiry because the Supreme Court of South Dakota has very clearly determined or me in Cheyenne Sioux Tribe v. Davis that 1922 does not apply to this particular hearing, and until a Court that has the capaciy to advise me of the same enters a ormal order, I simply cannot do anything further than rely on that representation, so I choose to do so at this particular point in time. I also choose to ollow the holding of that particular Court indicating that the manner in which these hearings are held under South Dakota law in terms of the evidence that I have received is appropriate, and I believe that I have ollowed those dictates, again which I am required to ollow, to the letter of the law here this afternoon. (Docket 239- 1 at p. 12:5-23). Prior to the commencement of the 48-hour hearing, Judge Pfeile did not appoint counsel or the Indian parent present, but he did appoint counsel or the hearing to occur 10 days later. 12: 24- 13:5. Judge Gusinsy ollows the same policy. pp. 8: 23-9: 10). 17 Id. at pp. (Docket 239-3 at IV. Federal Court Authority to Impose Declaratory and Injunctive Relief Plaintifs seek declaratory and injunctive relief against Defendant Vargo and the DSS Defendants. (Docket 1 at p. 38 ii! 3 and 4). Plaintifs seek only declaratory relief against Defendant Presiding Judge Pfeile "unless he ... ignores the declaratory judgment. " (Docket 239 at p. 7 n. 4). This court has "original jurisdiction .. . to redress the deprivation, under color of any State law ... of any right .. . secured by the Constitution .... " 28 U.S. § 1343(a)(3). C. The court also has jurisdiction "to secure equitable or other relief under any Act of Congress providing or the protection of civil rights ... . " 28 U. S. § 1343(a)(4). C. "The ocus of this litigation is not to redress past injuries to plaintifs; rather, it is to prevent future violations of the Due Process Clause of the Fourteenth Amendment and ICWA. " omitted). (Docket 150 at p. 42) (internal citation As part of its equitable power to protect civil rights, the court has the authority to "declare the rights and other legal relations of any interested pary seeking such declaration, whether or not further relief is or could be sought. " 28 U. C. § 220 1. "Any such declaration shall have the full orce and efect of a S. inal judgment .... " Id. If required to enorce the court's declaratoy judgment, "[Jurther necessay or proper relief . .. may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment. " 28 U. C. § 2202. S. 18 The court's exercise of remedial powers has long been authorized by the United States Supreme Court. [I]t is established practice or [the Supreme Court] to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state oicers rom doing what the 14th Amendment orbids the state to do. Moreover, where federally protected rights have been invaded, it has been the rule rom the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief. And it is also well settled that where legal rights have been invaded, and a federal statute provides or a general right to sue or such invasion, federal courts may use any available remedy to make good the wrong done. Bell v. Hood, 327 U.S. 678, 684 ( 1946). Congress restricted the court's abiliy to impose an ijunction on a state court judicial oicer. "[I]n 1996, Congress enacted the Federal Courts Improvement Act ("FCIA"), Pub.L. No. 104-3 17, 1 10 Stat. 3847 (1996), in which it amended§ 1983 to provide that 'injunctive relief shall not be granted' in an action brought against "a judicial oicer or an act or omission taken in such oicer's judicial capacity . . . unless a declaratory decree was violated or declaratory relief was unavailable." Bolin v. Stoy, 225 F.3d 1234, 1242 (11th Cir. 2000). This amendment "bars injunctive relief against . . . state judges" and "limits the ype of relief available to plaintifs who sue judges [or] declaratoy relief. " Johnson v. McCuskey, 72 Fed. App'x 475 at *2 (7th Cir. 2003) (referencing Bolin, 225 F.3d at 1242). "In ashioning a remedy, the District Court [has] ample authority to go beyond earlier orders and to address each element contributing to the violation." 19 Hutto v. Finney, 437 U. S. 678, 687 (1978). "The controlling principle consistently expounded [by the Supreme Court] is that the scope of the remedy is determined by the nature and extent of the constitutional violation. " Bradley, 4 18 U.S. 7 17, 744 ( 1974). Milliken v. "Once invoked, the scope of a district court's equitable powers to remedy past wrongs is broad, or breadth and lexibility are inherent in equitable remedies. " Hutto, 437 U.S. at 687 n.9 (internal quotation marks omitted). The court is "guided by equitable principles. " Brown v. Board of Education of Topeka, Kansas, 349 U. S. 294, 300 ( 1955). "Traditionally, equiy has been characterized by a practical lexibiliy in shaping its remedies and by a faciliy or adjusting and reconciling public and private needs. " Id. "call[s] or the exercise of these traditional attributes of equiy power. This case At stake is the personal interest of the plaintifs in" enorcement of their ICWA and due process rights "as soon as practicable . . . . " Id. "To efectuate this interest" will require the court to "eliminat [e] . . . a variety of obstacles" by requiring the defendants to conorm to the constitutional and statutory principles identiied in the 2015 order. Id. "Courts of equiy may properly take into account the public interest in the elimination of such obstacles in a systematic and efective manner. But it should go without saying that the vitaliy of these constitutional principles cannot be allowed to yield simply because of disagreement with them. " Id. Addressing the issues presented in this case, the court is "not remedying the present efects of a violation in the past. violation to an immediate halt. " It [is] seeking to bring an ongoing Hutto, 437 U.S. at 687 n.9. 20 DECLARATORY JUDGMENT Plaintifs have proved by the greater convincing weight of the evidence that the defendants have neither implemented the court's 20 15 order nor otherwise complied with § 1922 and the Due Process Clause when dealing with Indian children, parents, custodians and tribes in 48-hour hearings. The court inds the ollowing conduct of the defendants relevant to this conclusion: 1. Notwithstanding the clear holdings announced in the 2015 order, petitions or temporary custody prepared by Mr. Vargo's oice and presented to Indian parents or custodians at 48-hour hearings still ail to incorporate any reference to the § 1922 standard. See Dockets 239-4 and 239-5. 2. The court ound the judges of Seventh Judicial Circuit ailed to give copies of the petition for temporary custody and the ICWA aidavit to Indian parents or custodians in advance of 48-hour hearings. (Docket 150 at p. 38). In the 2015 order, the court also expressed concern about the non-disclosure of police reports which were being presented to the judges presiding over 48-hour hearings. Id. at pp. 38-39. While the state judges now appear to be providing copies of the petition or temporary custody and the ICWA aidavit to Indian parents or custodians at 48-hour hearings, the policy against disclosure of police reports remains. As pointed out in the 20 15 order, all that is required to satisy both SDCL § 26-7A-29 and ICWA would be or the state judge to direct in advance or in open court that police reports be provided to the Indian parents or custodians and counsel. (Docket 150 at p. 39). The state judges have ailed to 21 incorporate this requirement into their 48-hour hearings to comply with "the clear mandate of ICWA and due process. " Id. 3. The court ound that appointment of counsel or indigent parents at 48-hour hearings is constitutionally mandated. (Docket 150 at pp. 39-40). "Appointing counsel and continuing the 48-hour hearing or a few hours or even a day to allow court-appointed counsel to confer with the Indian parents and become amiliar with the critical documents upon which the 48-hour hearing is based would result in an 'equal contest of oppos[ing] interests.' " Id. at p. 40 (citing Lassiter v. Department of Social Services of Durham Cou, N. C., 452 U. S. 18, 28 (1981)). The state courtjudges have either not appointed counsel or appointed counsel and continued DSS custody of Indian children or up to 60 days without reconvening the 48-hour hearing. "Federal procedural due process guarantees prompt post-deprivation judicial review in child custody cases. . . . When the state deprives parents and children of their right to amilial integrity, even in an emergency situation, without a prior due process hearing, the state has the burden to initiate prompt judicial proceedings to provide a post deprivation hearing. " (Docket 150 at p. 37) (internal citations omitted). If a continuance is necessary to allow counsel to become amiliar with the case, the court inds a "prompt judicial proceeding" should be held within 24 hours. Id. 4. The court ound the decision of the state court judges to prevent cross-examination of the ICWA aidavit preparers and to prohibit oral testimony at 48-hour hearings violates due process. 22 Id. at p. 41. The state court judges continue to accept as true the ICWA aidavit, the petition or temporary custody and any police reports presented at 48-hour hearings. The judges still prohibit Indian parents, custodians or their attorneys rom cross-examining witnesses or presenting evidence at 48-hour hearings. 5. In the 2015 order, the court ound it was a requirement of § 1922 that the state court must "order restoration of custody to Indian parents when the risk of imminent physical harm no longer exists." Id. at p. 35 (italics in original). Despite this ruling, in 48-hour hearings the state court judges continue to place Indian children in the temporary custody of DSS using the standard of SDCL § 26-7A- 18, that is "in keeping with the best interests of the child." 6. Presiding Judge Pfeile claims he is no longer handling abuse and neglect cases, but rather those cases are now assigned to other judges, so that he has no authoriy over what occurs during 48-hour hearings. This position ignores the act that Judge Pfeile is responsible or assigning his colleagues to the abuse and neglect docket. The due process rights and ICWA rights of Indian children, parents, custodians and tribes cannot be left to the personal preferences of each circuit court judge. It is Presiding Judge Pfeifle's obligation to appoint to abuse and neglect cases only those Seventh Circuit Judges who will honor the due process rights and the ICWA rights of Indian children, parents, custodians and tribes. The defendants were violating plaintifs' ICWA rights and their rights under the Due Process Clause at the time of the 20 15 order. They continue to 23 do so today. The court has no assurance anything will change in the future without the court's intervention. "[A]lthough the All Writs Act, 28 U.S.C. § 165 1(a), authorizes federal courts to 'issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,' the Act does not create an independent source of federal jurisdiction." Goss International Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 364 (8th Cir. 2007). "[T]he All Writs Act does not operate to confer jurisdiction upon the district court, rather the Act only aids jurisdiction the district court already possesses. " 365 (referencing Westinghouse Elec. Corp. v. Newman F.2d 932, 937 (9th Cir.1993)). & Id. at Holtzinger, P.C. , 992 "Although not a base of jurisdiction, the All Writs Act has been held to give the federal courts the power to implement the orders they issue by compelling persons not parties to the action to act, or by ordering them not to act." & Id. at 365 n.6 (citing 14A Charles Alan Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure§ 3691 (3d ed.1998)). Although the other judges of the Seventh Judicial Circuit are not parties to this action, their obligation to enorce the due process rights and ICWA rights of Indian children, parents, custodians and tribes is central to the efective resolution of plaintifs' claims or relief. Should the judges ail to honor that obligation, the court will entertain plaintifs' motion to individually add all the Seventh Judicial Circuit Judges to this action pursuant to Fed. R. Civ. P. 20(a)(2)(B). 24 Contray to the defendants' arguments that declaratory relief is not necessary, the court inds "it is absolutely clear' that the violative policies and procedures of the defendants can "be expected to recur." Gwaltney of Smithield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 66 ( 1987) (italics in original). The defendants have not convinced the court otherwise. For these reasons, the court will separately enter a declaratoy judgment order directing Presiding Judge Pfeile, States Attorney Vargo and the DSS defendants to take certain actions. INJUNCTIVE RELIEF In order to grant a request or a permanent injunction, plaintifs are required to show: "( 1) that [they have] sufered an irreparable injuy; (2) that remedies available at law, such as monetary damages, are inadequate to compensate or that injury; (3) that, considering the balance of hardships between the plaintif and defendant, a remedy in equiy is warranted; and (4) that the public interest would not be disserved by a permanent injunction." eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 39 1 (2006). "The decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court, reviewable on appeal or abuse of discretion. " Id. As a matter of law, the violation of plaintifs' constitutional rights constitutes irreparable injury. See Elrod v. Burns, 427 U.S. 347, 373 ( 1976). Plaintifs have satisied the irst two actors by proving that they, and the class members whom they represent, have been and will be deprived of their constitutional and statutory rights in the future if the defendants' conduct is not enjoined. eBay Inc., 547 U.S. at 39 1. 25 The third actor, balance of hardships, strongly favors plaintifs. The harm sufered by plaintifs as a result of the defendants' unconstitutional conduct is ar greater than any administrative or inancial hardship the defendants and the Seventh Judicial Circuit may sufer in honoring plaintifs' constitutional and statutory rights. Id. Finally, the public interest and the Congressional purpose in creating the Indian Child Welfare Act will be served by injunctive relief.17 Id. Plaintifs are entitled to a permanent injunction against Defendant Vargo and the DSS Defendants. At this juncture the court is expressly prohibited rom granting injunctive relief against Presiding Judge Pfeile. Bolin, 225 F.3d at 1242. Plaintifs' request or injunctive relief is granted in part. The court will separately enter a permanent injunction against States Attorney Vargo and the DSS defendants. V. Plaintifs' Request for a Monitor Plaintifs request the court appoint a monitor pursuant to Fed. R. Civ. P. 53 to supervise defendants' compliance with the court's orders. p. 22). (Docket 239 at Defendant Vargo opposes the request and asserts that a monitor is not necessay. (Docket 257 at p. 10). The DSS defendants oppose the request and argue plaintifs' appointment of a monitor is premature as there are no exceptional conditions present to warrant monitoring. (Docket 260 at pp. 8-9). 17See also M.D. v. Abbott, 152 F. Supp. 3d 684, 823 (S.D. Tex. 20 15), (April 5, 2016) ("the public interest will not be harmed by an injunction requiring Texas to conorm its oster care system to the Constitution. With all our actors met, the Court holds that injunctive relief is appropriate in this case."). appeal dismissed 26 The defendants have long ailed to comply with the holdings in the court's earlier orders. Once presented with this order, the declaratory judgment and the permanent injunction, the court expects the defendants will comply with this court's rulings. Compliance with the court's rulings will make appointment of a monitor unnecessary. Plaintifs' request or appointment of a monitor is denied without prejudice as premature. ORDER Based on the above analysis, it is ORDERED that plaintifs' request or a declaratory judgment (Docket 1 at p. 38) is granted. A declaratory judgment will be entered as a separate order. IT IS FURTHER ORDERED that plaintifs' request or injunctive relief (Docket 1 at pp. 38-39) is granted in part. A permanent ijunction will be entered as a separate order. IT IS FURTHER ORDERED that plaintifs' request or appointment of a monitor is denied without prejudice as premature. Dated December 15, 2016. BY THE COURT: R CfN 4 CHIEF JUDGE 27

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