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Date: 09-18-2018

Case Style:

Oglala Sioux Tribe, et al. v. Lisa Fleming, Mark Vargos, Honorable Craig Pfeifle, Lynne A. Valenti

Case Number: 17-1135

Judge: Colloton

Court: United States Court of Appeals for the Eighth Circuit on appeal from the District of South Dakota (Pennington County)

Plaintiff's Attorney: Dana HannaSteve Pevar

Defendant's Attorney: Robert B. Anderson, Steven R. Blair, Jeffrey R. Connolly, Sara Frankenstein, Jeffrey G. Hurd, Rebecca L. Mann, Ann F. Mines-Bailey, Robert L. Morris, J. Crisman Palmer, Terence R. Quinn


The 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
The 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.
The 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).
We 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 orders.1
1The district court has not yet resolved plaintiffs’ claims relating to DSS’s
alleged failure to train its staff members adequately. These claims are not before us
on appeal, and we do not address them.
South 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).
The 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.
Under 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.” Id.
At the 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).
The 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 State’s Attorney for
Pennington County, and the presiding judge of the Seventh Judicial Circuit Court of
the State of South Dakota, all in their official capacities.
The Tribes assert standing under the parens patriae doctrine, alleging that they
seek “to vindicate rights afforded to their members.” They claim “a close affiliation,
indeed kinship, with respect to the rights and interests at stake in this litigation.” They
further allege that “[t]he future and well-being of the Tribes is inextricably linked to
the health, welfare, and family integrity of their members.” The Tribes also seek to
vindicate their own rights under the ICWA.
The named individual plaintiffs, Pappan and Young, both reside in Pennington
County and are members of the Oglala Sioux Tribe and the Standing Rock Sioux
Tribe, respectively. They claim that they “are not seeking to interfere with, or
overturn decisions in, their own cases but rather are seeking to expose and challenge
systemic policies, practices, and customs of the Defendants that violate federal law.”
Both Pappan and Young have two children who were previously taken into State
custody under allegations of abuse or neglect. The children remained in State custody
for months before returning home. According to the complaint, both mothers
“suffered, and watched their children suffer, extreme emotional and psychological
trauma as a result of this forced separation.” Pappan and Young brought their claims
on behalf of themselves 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.” The district court certified a class.
The plaintiffs alleged that it was “[t]he policy, practice, and custom of the
Defendants . . . to wait at least sixty days (and more often ninety days) before
providing parents whose children have been removed from their custody with
adequate notice, an opportunity to present evidence on their behalf, an opportunity to
contest the allegations, and a written decision based on competent evidence.” They
asserted that the 48-hour hearings did not provide these protections. So they sought
declaratory and injunctive relief to ensure that Indian families and Tribes were given
“adequate notice and a meaningful hearing at a meaningful time following the removal
of Indian children from their homes by state officials,” as allegedly required by the
Due Process Clause and the ICWA.
The defendants moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6), arguing, among other things, that the plaintiffs lacked standing
under Article III, and that the district court was required to abstain from exercising
jurisdiction under the doctrine of Younger v. Harris. The district court denied the
Thereafter, the district court granted summary judgment for the plaintiffs on the
merits and granted declaratory and injunctive relief. The court ruled that the
defendants’ practices and policies at the 48-hour hearings violated both § 1922 of the
ICWA and the Due Process Clause. The district court declared that Indian children,
parents, custodians, and Tribes have rights at the 48-hour hearings to “adequate
notice,” to present evidence and subpoena witnesses, to cross-examine DSS witnesses,
to receive the assistance of court-appointed counsel if indigent, and to a decision
based on the evidence presented at the hearing. Relying on § 1922, the court declared
that the State may continue temporary custody of a child after a 48-hour hearing only
if it establishes that temporary custody is “necessary to prevent imminent physical
damage or harm to the child.” If the State does continue temporary custody, the court
ordered that DSS must immediately report to the circuit court when the risk of
imminent physical damage or harm subsides, and return the child to a parent or
custodian at that time. The district court further declared that § 1922 does not permit
the State to consider emotional damage or harm.
The declaratory judgment went into some detail on the scope of these rights.
For example, the court defined adequate notice to mean that all petitions for temporary
custody must include information about the State’s burden of proof. As to the right
to cross-examination, the court declared that parents, custodians, and Tribes have the
right to cross-examine all witnesses “whose statements form the factual basis for any
document submitted to the court for consideration during the 48-hour hearing.” The
court also permanently enjoined the DSS Defendants and the State’s Attorney from
violating the constitutional and statutory rights declared by the court, and ordered
them to comply with the requirements set forth in the declaratory judgment. The court
did not order injunctive relief against the presiding judge. See 42 U.S.C. § 1983 (“[I]n
any action brought against a judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.”).
There are several threshold jurisdictional issues in this appeal, including Article
III standing and Younger abstention. The defendants raised both standing and
abstention in the district court. On appeal, they focus on abstention. Of course, we
have an independent obligation to determine whether subject-matter jurisdiction exists
before proceeding to the merits, even when no party raises the issue. Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006); see Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 93-101 (1998). But when both standing and abstention are at issue, we may
consider either one first. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85
(1999); Steel Co., 523 U.S. at 100 n.3.
The district court did not address standing of the individual plaintiffs but
concluded that the Tribes had standing under the doctrine of parens patriae. The
court, quoting 25 U.S.C. § 1902, reasoned that the action was “inextricably bound up
with the Tribes’ ability to maintain their integrity and ‘promote the stability and
security of Indian tribes and families.’” The court concluded that abstention was not
warranted because the plaintiffs sought only “prospective relief.” The court later
acknowledged that “48-hour hearings involving Indian children will continue to occur
during the pendency of this litigation,” but still declined to abstain on the view that
the relief requested by the plaintiffs would not “interfere” with ongoing proceedings.
We review the district court’s decision on abstention for abuse of discretion, but
exercise plenary review over underlying legal determinations. Aaron v. Target Corp.,
357 F.3d 768, 774 (8th Cir. 2004).
We need not address whether any of the plaintiffs satisfy the requirements for
Article III standing, because the district court should have abstained under Younger.
Abstention is an exception to the general rule that “federal courts ordinarily should
entertain and resolve on the merits an action within the scope of a jurisdictional
grant.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 73 (2013). The Younger line
of cases “counsels federal-court abstention when there is a pending state proceeding”
of a certain type. Moore v. Sims, 442 U.S. 415, 423 (1979). The doctrine “reflects a
strong policy against federal intervention in state judicial processes in the absence of
great and immediate irreparable injury to the federal plaintiff.” Id. Younger involved
state criminal proceedings, but abstention also applies to civil enforcement
proceedings that are “akin to a criminal prosecution” in “important respects.” Sprint,
571 U.S. at 79 (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)).
South Dakota’s temporary custody proceedings are civil enforcement
proceedings to which Younger principles apply. In Moore, the Court held that a
federal court should have abstained from intervening in a state-initiated proceeding
to gain custody of children allegedly abused by their parents. 442 U.S. at 423, 435.
The Court observed that the State was party to the proceedings, and that “the
temporary removal of a child in a child-abuse context is . . . ‘in aid of and closely
related to criminal statutes.’” Id. at 423 (quoting Huffman, 420 U.S. at 604).
Sprint cited Moore with approval, 571 U.S. at 79, and we see no meaningful
distinction between the custody proceedings in Moore and the temporary custody
proceedings in South Dakota. The State is a party to these proceedings and initiates
them by filing a petition for temporary custody. See S.D. Codified Laws §§ 26-7A-9,
26-7A-14. South Dakota law provides for an investigation by both the State’s
Attorney and DSS upon reported abuse or neglect of a child, after which the State’s
Attorney may “[f]ile a petition to commence appropriate proceedings.” Id. § 26-7A-
10(5). And because the proceedings are for the purpose of “protecting the child from
abuse or neglect,” id. § 26-7A-6, they are closely related to criminal statutes and
potentially in aid of their enforcement.
The plaintiffs nonetheless argue that Younger is inapplicable because there is
no ongoing state proceeding and because they lack an adequate opportunity in state
proceedings to raise their federal claims. These are additional factors appropriately
considered by a federal court before invoking Younger. See Sprint, 571 U.S. at 81;
Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).
The district court accepted the plaintiffs’ argument and declined to abstain based on
these factors.
According to the plaintiffs, they sought only prospective relief aimed at future
48-hour proceedings, and the federal proceeding would not interfere with a pending
state proceeding. Even the district court, however, acknowledged that “48-hour
hearings involving Indian children will continue to occur during the pendency of this
litigation,” and we agree. Younger may apply even if a 48-hour hearing is not in
session at the precise moment when the district court grants relief. The plaintiffs do
not dispute that some Indian children were in temporary custody and under the
continuing jurisdiction of the circuit court while this federal case was pending. See
S.D. Codified Laws § 26-7A-19(2). In those circumstances, even if a 48-hour hearing
were not in session, temporary custody proceedings would be “ongoing,” and the
proposed relief would interfere with the ongoing proceedings.
The district court addressed this concern by concluding that the requested relief
would not “interfere” with ongoing 48-hour hearings. The court thought the proposed
relief instead would “support the state’s interest involving the protection of Indian
children in abuse and neglect cases.” This reasoning misunderstands the sort of
interference that Younger is designed to prevent. The plaintiffs seek an order that
would dictate a host of procedural requirements for the ongoing state proceedings.
The question under the abstention doctrine is not whether the claims have merit such
that the exercise of federal jurisdiction would “support the state’s interest” in
affording its residents protection under the law. The issue is whether the federal court
should refrain from exercising jurisdiction and allow the claims to be resolved in the
state proceedings. A federal court order dictating what procedures must be used in an
ongoing state proceeding would “interfere” with that proceeding by inhibiting “the
legitimate functioning of the individual state’s judicial system.” Bonner v. Circuit
Court of City of St. Louis, 526 F.2d 1331, 1336 (8th Cir. 1975); see also J.P. v.
DeSanti, 653 F.2d 1080, 1084 (6th Cir. 1981); Wallace v. Kern, 481 F.2d 621, 622 (2d
Cir. 1973) (per curiam).
Even setting aside the question of “ongoing” temporary custody proceedings,
plaintiffs may not circumvent the abstention doctrine by attempting to accomplish the
same type of interference with state proceedings through a claim for prospective relief.
In O’Shea v. Littleton, 414 U.S. 488 (1974), the Court long ago directed that
abstention is warranted when plaintiffs seek “an injunction aimed at controlling or
preventing the occurrence of specific events that might take place in the course of
future state criminal trials.” Id. at 500.
The plaintiffs in O’Shea sought to enjoin state court judges from carrying out
allegedly unconstitutional policies and practices relating to bond-setting, sentencing,
and jury fees in criminal cases. Id. at 491-92. Even though the plaintiffs did not seek
to invalidate any statute or enjoin any prosecution, the Court recognized that the
plaintiffs sought “nothing less than an ongoing federal audit of state criminal
proceedings which would indirectly accomplish the kind of interference that Younger
v. Harris . . . and related cases sought to prevent.” Id. at 500. The Court explained
that “because an injunction against acts which might occur in the course of future
criminal proceedings would necessarily impose continuing obligations of
compliance,” alleged noncompliance with the injunction would give rise to contempt
proceedings in federal court. Id. at 501-02. But “such a major continuing intrusion
of the equitable power of the federal courts into the daily conduct of state criminal
proceedings is in sharp conflict with the principles of equitable restraint” that the
Court recognized in Younger and its progeny. Id. at 502.
This court reached a similar conclusion in Bonner. In that case, twenty black
prisoners alleged that officials in St. Louis had “joined in a systematic racially
discriminatory conspiracy” to coerce black citizens into pleading guilty to criminal
charges. 526 F.2d at 1333. The prisoners did not “challenge their present
incarceration or the legality of their sentences,” but sought declaratory and injunctive
relief directed at “possible future recurrences of the alleged illegal acts.” Id. at 1335.
Applying O’Shea, we concluded that abstention was warranted because “a federal
court should not intervene where such interference unduly inhibits the legitimate
functioning of the individual state’s judicial system.” Id. at 1336.
Other circuits have concluded that abstention is required in similar
circumstances. In Parker v. Turner, 626 F.2d 1 (6th Cir. 1980), indigent fathers who
were behind in their child support and alimony payments sued in federal court,
claiming that they were routinely denied due process in state civil contempt
proceedings. Id. at 2. The plaintiffs alleged that “the juvenile court judges, as a
matter of policy, denied fathers their right to counsel, denied them the right to
confront and cross-examine witnesses, and denied them the right to testify and present
witnesses [on] their behalf.” Id. They sought declaratory and injunctive relief. Id.
Although the plaintiffs urged that they were not seeking to interfere in pending
proceedings and sought only prospective relief, the Sixth Circuit concluded that
abstention was proper because “federal interference with the state proceedings would
be as serious here as it was feared to be in O’Shea.” Id. at 8; see also Joseph A. ex rel.
Corrine Wolfe v. Ingram, 275 F.3d 1253, 1267-72 (10th Cir. 2002); Luckey v. Miller,
976 F.2d 673, 676-79 (11th Cir. 1992); Wallace, 520 F.2d at 404-09.
The relief sought by the plaintiffs here, although prospective in nature, warrants
abstention for analogous reasons. The plaintiffs do not seek to invalidate a state
statute or enjoin a temporary custody proceeding, but they pray for relief that will “be
operative only where permissible state [proceedings] are pending against one or more
of the beneficiaries of the injunction.” O’Shea, 414 U.S. at 500. The relief requested
would interfere with the state judicial proceedings by requiring the defendants to
comply with numerous procedural requirements at future 48-hour hearings. The
district court also retained jurisdiction for the purpose of “enforcing and modifying”
its orders, and for “the purpose of granting additional relief as may be necessary and
appropriate.” As in O’Shea, failure to comply with the district court’s injunction
would subject state officials to potential sanctions for contempt of court, and place the
district court in the position of conducting an ongoing “federal audit” of South Dakota
temporary custody proceedings. Id. An injunction of the type contemplated by the
plaintiffs and the district court “would disrupt the normal course of proceedings in
state courts via resort to the federal suit for determination of the claim ab initio,” just
as would a request for injunctive relief from an ongoing state proceeding. Id. at 501.
The plaintiffs urge that abstention is unwarranted because the relief they seek
resembles that which pretrial detainees sought in Gerstein v. Pugh, 420 U.S. 103
(1975). There, the Court held that Younger did not bar the plaintiffs’ claim for relief
because the injunction they sought “was not directed at the state proceedings as such,
but only at the legality of pretrial detention without a judicial hearing.” Id. at 108 n.9.
Gerstein emphasized, however, that the legality of the plaintiffs’ pretrial detention
“could not be raised in defense of the criminal prosecution.” Id. The Supreme Court
later confirmed that abstention was inappropriate in Gerstein because the federal
plaintiffs did not have “an opportunity to press [their] claim in the state courts.”
Moore, 442 U.S. at 432; see also Middlesex, 457 U.S. at 432. Gerstein therefore does
not preclude abstention based on the type of relief sought here, as long as the plaintiffs
have an opportunity to litigate their claims in the South Dakota courts.
Although the plaintiffs complain that state court proceedings do not afford
parents an adequate opportunity to raise broad constitutional challenges under the Due
Process Clause, they have not established that South Dakota courts are unwilling or
unable to adjudicate their federal claims. State courts are competent to adjudicate
federal constitutional claims, Moore, 442 U.S. at 430, and “when a litigant has not
attempted to present his federal claims in related state-court proceedings, a federal
court should assume that state procedures will afford an adequate remedy, in the
absence of unambiguous authority to the contrary.” Pennzoil Co. v. Texaco, Inc., 481
U.S. 1, 15 (1987).
In this very context, the South Dakota courts have adjudicated federal claims.
In Cheyenne River Sioux Tribe v. Davis, 822 N.W.2d 62 (S.D. 2012), the Supreme
Court of South Dakota resolved a petition for writ of mandamus that sought an order
compelling a South Dakota circuit judge to apply procedural rights guaranteed by the
ICWA at temporary custody hearings. Id. at 64-66. The availability of mandamus
relief is sufficient to show that state proceedings provide an adequate opportunity to
litigate federal claims. See, e.g., Tex. Ass’n of Bus. v. Earle, 388 F.3d 515, 521 (5th
Cir. 2004); Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 202 (2d Cir.
2002). The Seventh Judicial Circuit Court, moreover, is a court of general
jurisdiction, March v. Thursby, 806 N.W.2d 239, 243 (S.D. 2011), so Indian parents
or Tribes could raise their federal claims in temporary custody proceedings. South
Dakota law also provides a right to appeal at the conclusion of abuse and neglect
proceedings, or after certain intermediate orders, see S.D. Codified Laws §§ 26-7A-
30, 26-7A-86, 26-7A-87, 26-7A-90, and the state supreme court has discretion to
“determine a moot question of public importance” if it decides that “the value of its
determination as a precedent is sufficient to overcome the rule against considering
moot questions.” Larson v. Krebs, 898 N.W.2d 10, 16-17 (S.D. 2017) (quoting
Cummings v. Mickelson, 495 N.W.2d 493, 496 (S.D. 1993)).
The district court relied on LaShawn A. v. Kelly, 990 F.2d 1319 (D.C. Cir.
1993), and Family Division Trial Lawyers of Superior Court-D.C., Inc. v. Moultrie,
725 F.2d 695 (D.C. Cir. 1984), in concluding that the plaintiffs lacked an adequate
opportunity to press their claims in state court. In those cases, however, the D.C.
Circuit concluded that family division superior court proceedings were not an
adequate forum to adjudicate federal constitutional claims, because of their limited
purpose and inability to provide appropriate relief. LaShawn, 990 F.2d at 1323;
Moultrie, 725 F.2d at 703. The best evidence about South Dakota is that state
procedures provide an adequate remedy for alleged violations of federal law at 48-
hour custody hearings, and the plaintiffs have not presented unambiguous authority
to the contrary.
Finally, the plaintiffs point to Younger’s recognition that even when ordinary
abstention principles favor dismissal, the exercise of federal jurisdiction might be
warranted where “a statute [is] flagrantly and patently violative of express
constitutional prohibitions in every clause, sentence and paragraph, and in whatever
manner and against whomever an effort might be made to apply it.” 401 U.S. at 53-54
(quoting Watson v. Buck, 313 U.S. 387, 402 (1941)). This exception for “patently
unconstitutional” actions is “extremely narrow,” Plouffe v. Ligon, 606 F.3d 890, 894
(8th Cir. 2010), and it does not apply here. The plaintiffs do not challenge the
constitutionality of a statute at all, and they have not established that the alleged
procedural deficiencies at the 48-hour hearings threaten “irreparable loss [that] is both
great and immediate.” Younger, 401 U.S. at 45 (quoting Fenner v. Boykin, 271 U.S.
240, 243 (1926)). Of course, child custody proceedings involve interests of great
importance to parents and children, but it would “invert[] traditional abstention logic”
to say that “because the interests involved are important, abstention is inappropriate.”
Moore, 442 U.S. at 434-35. “Family relations are a traditional area of state concern,”
and federal courts should be “unwilling to conclude that state processes are unequal
to the task of accommodating the various interests and deciding the constitutional
questions that may arise in child-welfare litigation.” Id. at 435.
* * *

Outcome: For the foregoing reasons, we vacate the orders granting partial summary
judgment and declaratory and injunctive relief, and remand with instructions to
dismiss the claims that gave rise to the orders.

Plaintiff's Experts:

Defendant's Experts:


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