Oglala Sioux Tribe; Rosebud Sioux Tribe, as parens patriae, to protect the rights of their tribal members; Madonna Pappan; Lisa Young, individually and on behalf of all other persons similarly situated, Plaintiffs - Appellees,
Lisa Fleming, in her official capacity, Defendant, Mark Vargo, in his official capacity, Defendant-Appellant, Honorable Craig Pfeifle; Lynne A. Valenti, in their official capacities, Defendants. Cherokee Nation of Oklahoma; ICWA Law Center; National Congress of American Indians; National Indian Child Welfare Association; Navajo Nation; Amici on Behalf of Appellee(s). Oglala Sioux Tribe; Rosebud Sioux Tribe, as parens patriae, to protect the rights of their tribal members; Madonna Pappan; Lisa Young, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellees,
Lisa Fleming; Mark Vargo, in their official capacities, Defendants, Honorable Craig Pfeifle, in his official capacity, Defendant–Appellant, Lynne A. Valenti, in her official capacity, Defendant. Oglala Sioux Tribe; Rosebud Sioux Tribe, as parens patriae, to protect the rights of their tribal members; Madonna Pappan; Lisa Young, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellees,
Lisa Fleming, in her official capacity, Defendant–Appellant, Mark Vargo; Honorable Craig Pfeifle, in their official capacities, Defendants, Lynne A. Valenti, in her official capacity, Defendant–Appellant.
Submitted: February 13, 2018
Appeals from United States District Court for the District of
South Dakota - Rapid City
SMITH, Chief Judge, MURPHY and COLLOTON, Circuit
COLLOTON, Circuit Judge.
Oglala Sioux Tribe, the Rosebud Sioux Tribe, and tribal
members Madonna Pappan and Lisa Young brought this action
against various South Dakota officials under 42 U.S.C. §
1983. They challenged procedures used in proceedings brought
by the State to remove children temporarily from their homes
in exigent circumstances. The plaintiffs alleged that the
defendants were engaged in ongoing violations of the Due
Process Clause of the Fourteenth Amendment and the Indian
Child Welfare Act (ICWA), 25 U.S.C. § 1901 et
seq., because their policies and practices deprived
Indian parents of a meaningful hearing after their children
were taken into temporary state custody.
district court denied the defendants' motion to dismiss
on jurisdictional grounds, and granted partial summary
judgment for the plaintiffs on several of their statutory and
constitutional claims. The court then entered a declaratory
judgment and a permanent injunction. After declaring certain
rights of Indian parents, custodians, children, and Tribes at
hearings held within 48 hours of the State assuming temporary
custody of a child, the court ordered the Department of
Social Services (DSS) and the State's Attorney to
implement certain procedures to protect these rights.
defendants appeal, and challenge both the district
court's assertion of jurisdiction and its decision to
grant declaratory and injunctive relief. We have jurisdiction
to review the order granting the permanent injunction under
28 U.S.C. § 1292(a)(1). We also have jurisdiction to
consider orders granting declaratory relief and partial
summary judgment that are incorporated by, and inextricably
bound up with, the injunction. FDIC v. Bell, 106
F.3d 258, 262-63 (8th Cir. 1997); Fogie v. THORN
Americas, Inc., 95 F.3d 645, 648-49 (8th Cir. 1996).
ultimately conclude that the district court should have
abstained from exercising jurisdiction under principles of
federal-state comity articulated in Younger v.
Harris, 401 U.S. 37 (1971), and later cases. We thus
vacate the court's orders granting partial summary
judgment and declaratory and injunctive relief, and remand
with instructions to dismiss the claims that gave rise to the
Dakota law establishes a process for the removal of children
from their homes in exigent circumstances. See S.D.
Codified Laws § 26-7A-1 et seq. A law
enforcement officer may take a child into temporary state
custody without a court order if the officer reasonably
believes that there is an "imminent danger to the
child's life or safety and there is no time to apply for
a court order." Id. § 26-7A-12(4).
Alternatively, a court may order that the State take
temporary custody of a child upon application by a
state's attorney, DSS social worker, or law enforcement
officer. The application must set forth "good cause to
believe . . . [t]here exists an imminent danger to the
child's life or safety and immediate removal of the child
from the child's parents, guardian, or custodian appears
to be necessary for the protection of the child."
Id. § 26-7A-13(1)(b).
State may not hold a child in temporary custody for longer
than 48 hours, excluding weekends and court holidays, unless
it files a petition for temporary custody. Id.
§ 26-7A-14. The statute also requires a temporary
custody hearing within 48 hours after the child is taken into
custody to determine whether temporary custody should be
continued. Id. § 26-7A-15. The parties describe
this proceeding as the "48-hour hearing." South
Dakota circuit courts have original jurisdiction over these
proceedings. Id. § 26-7A-2.
South Dakota law, at the 48-hour hearing, "the court
shall consider the evidence of the need for continued
temporary custody of the child in keeping with the best
interests of the child." Id. § 26-7A-18.
The 48-hour hearings are "conducted under rules
prescribed by the court," and neither the rules of civil
procedure nor the rules of evidence apply. Id.
§ 26-7A-56. "The rules may be designed by the court
to inform the court fully of the exact status of the child
and to ascertain the history, environment, and the past and
present physical, mental, and moral condition of the child
and the child's parents, guardian, and custodian."
conclusion of a 48-hour hearing, the court may order release
of the child to his or her family or continued custody
"under the terms and conditions for duration and
placement that the court requires." Id. §
26-7A-19. If the court orders a child to remain in state
custody after the 48-hour hearing, but has not determined
that the child is abused or neglected, then South Dakota
requires the court to "review the child's temporary
custody placement at least once every sixty days."
Id. § 26-7A-19(2).
plaintiffs in this case are two Indian Tribes-the Oglala
Sioux Tribe and the Rosebud Sioux Tribe-and a class of
individual plaintiffs represented by Madonna Pappan and Lisa
Young. In their complaint, the plaintiffs alleged that the
defendants violated the Due Process Clause of the Fourteenth
Amendment and the ICWA by denying Indian parents a meaningful
post-deprivation hearing after their children were taken into
temporary state custody. The defendant officials are the
Secretary of the South Dakota Department of Social Services
and the head of Child Protective Services for Pennington
County (together, "the DSS Defendants"), the