Nygaard v. Taylor

Full title: Aarin NYGAARD, and Terrance Stanley, Plaintiffs, v. Tricia TAYLOR, Ted…

Court: United States District Court, D. South Dakota, Central Division.

Date published: Sep 24, 2021

563 F. Supp. 3d 992 (D.S.D. 2021)

Opinion

3:19-CV-03016-RAL

2021-09-24

Aarin NYGAARD, and Terrance Stanley, Plaintiffs, v. Tricia TAYLOR, Ted Taylor, Jr., Jessica Ducheneaux, Ed Ducheneaux, Cheyenne River Sioux Tribal Court, Brenda Claymore, in Her Official Capacity as Chief Judge, Cheyenne River Sioux Tribal Court of Appeals; Frank Pommersheim, in His Official Capacity as Chief Justice; the South Dakota Department of Social Services, Todd Waldo, in His Official Capacity as Social Worker; and Jenny Farlee, in Her Offical Capacity as Social Worker, Defendants.

Martin J. Jackley, Stacy R. Hegge, Gunderson, Palmer, Nelson & Ashmore, LLP, Pierre, SD, Sarah A. Aaberg, Pro Hac Vice, Tracy J. Lyson, Pro Hac Vice, O'Keeffe, O'Brien, Lyson & Foss, Ltd., Fargo, ND, for Plaintiffs. Steven J. Gunn, Steven J. Gunn, Attorney at Law, St. Louis, MO, for Defendants Cheyenne River Sioux Tribal Court, Brenda Claymore, Frank Pommersheim, Cheyenne River Sioux Tribal Court of Appeals.

ROBERTO A. LANGE, CHIEF JUDGE

Martin J. Jackley, Stacy R. Hegge, Gunderson, Palmer, Nelson & Ashmore, LLP, Pierre, SD, Sarah A. Aaberg, Pro Hac Vice, Tracy J. Lyson, Pro Hac Vice, O'Keeffe, O'Brien, Lyson & Foss, Ltd., Fargo, ND, for Plaintiffs.

Steven J. Gunn, Steven J. Gunn, Attorney at Law, St. Louis, MO, for Defendants Cheyenne River Sioux Tribal Court, Brenda Claymore, Frank Pommersheim, Cheyenne River Sioux Tribal Court of Appeals.

OPINION AND ORDER DENYING MOTION TO DISMISS

ROBERTO A. LANGE, CHIEF JUDGE

Aarin Nygaard and Terrance Stanley filed a petition for writ of habeas corpus under 25 U.S.C. § 1303 against numerous defendants including the Cheyenne River Sioux Tribal Court, Chief Judge of the Cheyenne River Sioux Tribal Court Brenda Claymore, the Cheyenne River Sioux Tribal Court of Appeals, and Chief Justice of the Cheyenne River Sioux Tribal Court of Appeals Frank Pommersheim (collectively referred to as the "Tribal Defendants").¹ Doc 8. In the petition, Nygaard and Stanley allege that the Tribal Defendants have violated the Due Process Clause of the United States Constitution and the Indian Civil Rights Act ("ICRA") in exercising jurisdiction in a custody matter involving Nygaard and Stanley's children. Doc. 8. The Tribal Defendants have filed a motion to dismiss the petition along with a memorandum in support thereof. Docs. 42, 43. Nygaard and Stanley have responded in opposition to the motion to dismiss, Doc. 48, and the Tribal Defendants have replied to that opposition, Doc. 54.

1 The other defendants named in the petition are Tricia Taylor, Ted Taylor, Jr., Jessica Ducheneaux, Ed Ducheneaux, the South Dakota Department of Social Services, Social Worker Todd Waldo, and Social Worker Jenny Farlee. Doc. 8. The motion before the Court was not filed by any of these parties. Doc. 42.

This Court held a hearing on the motion to dismiss on August 2, 2021. Doc. 61. Because the motion to dismiss presented a question of tribal exhaustion, this Court discussed with the parties at the hearing the merit of filing for this Court's review the entire Tribal Court record for the relevant cases.² The parties agreed that this Court could take judicial notice of those Tribal Court records and now does so under Federal Rule of Evidence 201. After reading the briefing by both parties, considering oral argument, and reviewing the Tribal Court records, this Court now denies the motion to dismiss for the reasons contained herein.

2 At the hearing, the attorney for the Tribal Defendants mentioned the existence of two tribal court files—Cheyenne River Sioux Tribal Court case numbers 14FC391 and 14C117—and indeed those two file numbers appear on the Order most recently appealed to the Cheyenne River Sioux Tribe Court of Appeals. Doc. 1-62; Doc. 64-3 at 40; Doc. 64-16 at 2–6, 124–209. There actually were seven separate Cheyenne River Sioux Tribe court cases involving custody of the two children involved under Case File Numbers 14DV059, Doc. 64-1; 14FC282, Doc. 64-2; 14C117. Doc. 64-3; 14DV070, Doc. 64-4; 14FC391, Docs. 64-5 through–13; 18FC149, Doc. 64-17; and 18FC180, Doc. 64-18. There were three separate appeals giving rise to three Cheyenne River Sioux Tribe Court of Appeals files—Appeal Numbers 15A03, 16A01, and 18A01, Docs. 64-14 to –16. This Court has reviewed 1,817 pages of tribal court records related to the custody dispute, though there is much duplication in those filings. This Court also has accessed the audio recordings of eight Tribal Court hearings concerning the custody disputes. Doc. 67. The Tribal Defendants, having reviewed and redacted the children's full names from the Tribal Court records, filed a Notice of Clarification, Doc. 65, correcting an assertion previously made.

I. Facts

In ruling on the motion to dismiss, this Court draws the facts primarily from the amended petition, Doc. 8, and the attachments thereto, see Doc. 1, with reference to the Tribal Court records for facts related to issues of tribal court exhaustion. This Court of course is making no findings of fact when ruling on a motion to dismiss.

Nygaard is the father of C.S.N., and Stanley is the father of T.R.S. Doc. 8 at ¶¶ 24, 38. Tricia Taylor (Tricia)³ is the mother of both children and is an enrolled member of the Cheyenne River Sioux Tribe. Doc. 8 at ¶ 14. Custody of C.S.N and T.R.S. has been the subject of multiple court proceedings in both North Dakota courts and Tribal Court, dating back to early 2014.

3 This Court uses "Tricia" rather than "Taylor" to refer to Defendant Tricia Taylor because there are two defendants in this case with the last name Taylor.

A. 2014

The legal saga began in North Dakota state court with a custody dispute over C.S.N. Nygaard and Tricia were in a relationship, though they were never married. Doc. 8 at ¶ 24; Doc. 1-1 at 1. From that relationship came a child, C.S.N., who was born in 2013. Doc. 8 at ¶ 24. On March 28, 2014, Nygaard initiated a custody proceeding in the state district court for Cass County, North Dakota. Doc. 8 at ¶ 25; Doc. 1-1. Among other things, Nygaard requested that the court award him primary residential responsibility of C.S.N. Doc. 8 at ¶ 25; Doc. 1-1. Tricia filed an answer and counterclaim, requesting primary residential responsibility of C.S.N. Doc. 8 at ¶ 25; Doc. 1-2. Tricia then filed a motion for temporary relief asking the court to award her primary residential responsibility of C.S.N. while the custody proceeding was pending. Doc. 8 at ¶ 25; Doc. 1-3.

In early July 2014, Tricia petitioned for a temporary domestic violence restraining order against Nygaard.⁴ Doc. 8 at ¶ 26; Doc. 1-4. On July 22, 2014, Nygaard and Tricia took part in a mediation about a temporary custody agreement during the pendency of the case and to address Tricia's petition for a restraining order. Doc. 8 at ¶ 27. Nygaard and Tricia agreed to vacate Tricia's petition for a restraining order and replace it with a mutual no-contact order, and the North Dakota state court then vacated the petition for restraining order and entered the mutual no-contact order on that same day. Doc. 8 at ¶ 27; Doc. 1-5. Nygaard and Tricia also agreed that during the pendency of the custody proceeding, they would equally share decision-making and residential responsibility over C.S.N. Doc. 8 at ¶ 28; Doc. 1-6. As a part of that agreement, Nygaard and Tricia committed to give one another 24 hours advance notice if either party intended to travel out of state with C.S.N. Doc. 1-6 at ¶ 2. On July 25, 2014, the North Dakota state court entered an interim order to that effect. Doc. 8 at ¶ 28; Doc. 1-7.

4 The relationship between Nygaard and Tricia by this point was very acrimonious with both reporting that the other had substance abuse issues and engaged in criminal activity.

The agreed-upon arrangement went awry on August 28, 2014. Doc. 8 at ¶ 29. Without giving advance notice to Nygaard or obtaining court approval, Tricia took C.S.N. to the Cheyenne River Indian Reservation in South Dakota. Doc. 8 at ¶ 29. Nygaard and Tricia had arranged to exchange C.S.N. on September 1, 2014, but Tricia failed to do so. Doc. 8 at ¶ 30.

Tricia on. September 2, 2014,⁵ filed a Petition for Domestic Violence Protection Order against Nygaard in Cheyenne River Sioux Tribal Court ("Tribal Court") and included in her petition a request for full custody of C.S.N. Doc. 64-1 (Taylor v. Nygaard, Case No. 14DV059)⁶ at 2–6: Doc. 8 at ¶ 30; Doc. 1-8. On that same day, the Tribal Court issued a Temporary Protection Order against Nygaard, setting a September 16 court hearing on the petition but not addressing custody of C.S.N. Doc. 64-1 at 7–12; Doc. 8 at ¶ 30; Doc. 1-9. On September 16, 2014, the Tribal Court held a hearing to determine whether the Temporary Protection Order should be made permanent. Doc. 1-10. Nygaard appeared with counsel, but Tricia failed to show, so the Tribal Court entered an Order of Dismissal.⁷ Doc. 64-1 at 12; Doc. 8 at ¶ 31; Doc. 1-10.

5 On the same day, September 2, 2014, Tricia separately filed a Petition for Emergency Custody, In re T.R.S. and C.S.N., Case No. 14FC282, in Tribal Court. Doc. 64-2 at 2. This Tribal Court case was not served on either Nygaard or Stanley. The file remained dormant until, following a December 19, 2018 hearing on remand from the Cheyenne River Sioux Tribe Court of Appeals, Doc. 64-2 at 5–12. findings of Fact of Cheyenne River Sioux Tribe Judge Curtis Carroll were filed on December 19, 2018, in this file as well as in 14FC391, 18FC149, 18FC180.

6 This Court cites the Tribal Court case name and number only in its first reference to the particular case.

7 On October 8, 2014, Tricia once again petitioned the Tribal Court for a temporary protection order against Nygaard, which the Tribal Court granted. Doc. 64-4 at 2–8 (Taylor v. Nygaard, Case No. 14DV070); Doc. 8 at ¶ 36; Doc. 1-17. Nygaard never received notice of the order and only became aware of this second protection order years later. Doc. 8 at ¶ 36; Doc. 1-17.

Meanwhile in North Dakota state court on September 9, 2014, Nygaard filed an application for an ex parte order and a motion asking the court to hold Tricia in contempt for failing to comply with the July 25 interim order. Doc. 8 at ¶ 32; Doc. 1-11; Doc. 1-12. On September 11, 2014, the North Dakota state court held a hearing on the motion; Tricia was not present and likely was unaware of the hearing. Doc. 8 at ¶ 32. The North Dakota state court on September 12, 2014, issued an ex parte order determining that Nygaard and C.S.N.’s home state was North Dakota, ordering Tricia to return C.S.N. to North Dakota and into the custody of Nygaard, and placing immediate temporary care, custody and control with Nygaard until the court ordered otherwise. Doc. 8 at ¶ 33: Doc. 1-13.

On September 24, 2014, Nygaard filed in Tribal Court a Petition to Enforce Foreign Judgment of Custody and Visitation, attaching the North Dakota court's September 12 ex parte order granting Nygaard full temporary custody and ordering Tricia to return C.S.N. Doc. 64-3 at 2–6 (Nygaard v. Taylor, Case No. 14C117); Doc. 8 at ¶ 34; Doc. 1-14. Tricia received service of the petition on or about October 8, 2014. Doc. 64-3 at 12. The Tribal Court set a hearing on the matter for November 5, 2014. Doc. 64-3 at 18; Doc. 1-14 at 12, 18. However, no hearing was held that day.

The North Dakota state court held a hearing on the ex parte order on October 2, 2014. Doc. 1-15. Tricia received notice of the hearing but failed to appear; Nygaard appeared at the hearing with counsel. Doc. 1-15. On October 3, 2014, the North Dakota state court entered an Amended Interim Order, once again determining that Nygaard and C.S.N.’s home state was North Dakota, awarding Nygaard temporary full residential responsibility, and ordering Tricia to return C.S.N. to North Dakota and into the custody of Nygaard. Doc. 8 at ¶ 35; Doc. 1-15. The court also found Tricia in contempt of court. Doc. 1-15. When Tricia still had not returned C.S.N. to North Dakota, the North Dakota court on October 20, 2014, issued a bench warrant for Tricia's arrest. Doc. 8 at ¶ 35; Doc. 1-16. The Cass County Attorney also brought criminal charges against Tricia for parental kidnapping, and a warrant for her arrest on those charges issued. Doc. 1-18; Doc. 1-19. Nygaard filed the Amended Interim Order, the Bench Warrant, and other North Dakota case materials in the Tribal Court case where he was seeking to enforce the North Dakota custody decision. Doc. 64-3 at 21–39. No activity occurred in the Tribal Court case of Nygaard v. Taylor, Case No. 14C117 between October of 2013 and the entry of Tribal Judge Erin Shanley's findings of fact and conclusions of law on April 18, 2018. Doc. 64-3 at 40–52; see Doc. 64-3 generally.

Stanley's efforts to obtain custody of T.R.S., the child that he and Tricia had together, began in North Dakota state court in July of 2014, separately from Nygaard's case, although Stanley and Nygaard later combined their efforts in Tribal Court. T.R.S. was born to Tricia and Stanley in 2007, the couple married in 2010 but divorced in 2011. Doc. 8 at ¶ 38. In 2012, Tricia filed an action in North Dakota state court for Cass County, seeking child support from Stanley, and the court entered a default judgment against Stanley ordering him to pay child support. Doc. 8 at ¶ 38; Doc. 1-22. At that point, apparently no court order existed concerning custody of T.R.S., though it appears that T.R.S. lived with Tricia and Nygaard until their relationship soured.

On July 25, 2014, Stanley initiated a child custody proceeding in the same North Dakota state court for Cass County. Doc. 8 at ¶ 39; Doc. 1-23. On August 28, 2014, Tricia took T.R.S. (along with C.S.N.) to the Cheyenne River Indian Reservation in South Dakota without notifying Stanley. Doc. 8 at ¶ 43. Stanley then applied for an ex parte order for immediate custody of T.R.S. Doc. 8 at ¶ 38; Doc. 1-24. On October 8, 2014, the North Dakota state court entered an ex parte order granting Stanley temporary custody of T.R.S. and ordering Tricia to return T.R.S. to North Dakota and into the custody of Stanley. Doc. 8 at ¶ 40; Doc. 1-25; Doc. 1-26. The North Dakota state court held a hearing on the ex parte order on November 12, 2014. Doc. 8 at ¶ 41. Tricia was served with notice of the hearing but did not appear; Stanley appeared with his attorney. Doc. 8 at ¶ 41. Thereafter, the North Dakota state court issued an interim order granting temporary full residential responsibility to Stanley and ordering Tricia to immediately return T.R.S. Doc. 8 at ¶ 42; Doc. 1-27.

On November 26, 2014, Tricia was arrested by the Federal Bureau of Investigation (FBI) on the Cheyenne River Sioux Indian Reservation. Doc. 8 at ¶ 45; Doc. 1-67. The FBI agent enlisted the help of a criminal investigator of the Cheyenne River Sioux Tribe Law Enforcement Services and apparently had contacted the South Dakota Department of Social Services (DSS) to have social workers present at the time of Tricia's arrest for the children's welfare. Doc. 64-2 at 5–12. Tricia appears to have been taken into custody on a warrant arising from a Brookings County, South Dakota, misdemeanor bad check case;⁸ she was appointed counsel there, and two weeks later agreed to waive fighting extradition to North Dakota in exchange for dismissal of the Brookings County charges. Doc. 64-2 at 7–8. Tricia then was transported to Cass County, North Dakota, to face state charges of parental kidnapping. Doc. 8 at ¶ 45; Doc. 1-18.

8 On the third appeal, the Tribal Court of Appeals and particularly Justice Franklin Ducheneaux's concurrence, expressed alarm at the mechanism by which Tricia was arrested on the Reservation. Doc. 64-16 at 124-144, 145; see Doc. 64-13 at 33–36.

After Tricia was taken into custody, DSS placed C.S.N. and T.R.S. with Tricia's brother, Ted Taylor, Jr. (Ted). Doc. 8 at ¶ 45. DSS made this placement without contacting either Nygaard or Stanley. Doc. 8 at ¶ 45. Ted on December 1, 2014, filed a petition for custody of C.S.N. and T.R.S. in Tribal Court. Doc. 64-5 at 6–7 (In re C.S.N. and T.R.S., Case No. 14FC391);⁹ Doc. 8 at ¶ 46; Doc. 1-20. Ted's petition named only Tricia as the Respondent, although it listed Nygaard and Stanley as the children's fathers. Doc. 64-5 at 6. In affidavits filed in Tribal Court, Ted and his sister Jessica Ducheneaux made clear that Ted meant for Ducheneaux to have joint custody and that the children were staying with Ducheneaux in Timber Lake. Doc. 64-5 at 11–12. On December 18, 2014, Tribal Court Chief Judge Brenda Claymore granted temporary joint custody to Ted and Ducheneaux pending a hearing on January 12, 2015, at which time custody would be further determined. Doc. 8 at ¶ 46; Doc. 1-20 at 9; Doc. 64-5 at 13. Nygaard and Stanley were not given notice of the temporary custody order nor the hearing scheduled for January 12. Doc. 8 at ¶ 46; Doc. 1-20 at 10. Tricia knew of the proceedings and wrote to the Tribal Court that she wanted her sister Jessica Ducheneaux to have custody of the children. Doc. 64-5 at 15.

9 Case No.14FC391 became the main case where the parties filed pleadings, with a record containing 1,246 pages of material.

B. 2015

The Tribal Court held the hearing on January 12, 2015. Doc. 8 at ¶ 47; Doc. 1-20 at 12. Ted testified at the hearing that he applied for joint temporary custody at DSS's direction but that Ducheneaux should have actual custody of the children. Doc. 8 at ¶ 47; Doc. 1-20 at 12. He also testified that he was unsure why the fathers were not contacted by DSS to have the children placed with them instead of him when Tricia was arrested. Doc. 1-20 at 12. On January 13, 2015, Chief Judge Claymore issued a temporary custody order granting custody of the children to Ducheneaux until further order of the Tribal Court. Doc. 1-20 at 12–13; Doc. 64-5 at 16–17. In that order, Chief Judge Claymore declared that the Tribal Court had both subject matter jurisdiction and personal jurisdiction to hear the case. Doc. 1-20 at 12–13; Doc. 64-5 at 16–17. Nygaard and Stanley did not learn of the temporary custody order until February 3, 2015, the date on which the North Dakota state court held a hearing on Nygaard's motion for contempt.¹⁰ At that hearing, Nygaard and Stanley received a copy of the Tribal Court temporary custody order from Tricia's North Dakota criminal defense attorney. Doc. 8 at ¶ 49.

10 After the hearing held on February 5, 2015, the North Dakota state court entered an order on contempt finding that Tricia remained in contempt of court because she refused to comply with the July 25 interim order and reveal the whereabouts of the children. Doc. 8 at ¶ 50; Doc. 1-28. The court ordered that she remain in custody until she complied with the court's order. Doc. 8 at ¶ 50; Doc. 1-28. Tricia ultimately pled guilty to parental kidnapping and was sentenced to a term of five years in custody with three years suspended. Doc. 8 at ¶ 52; Doc. 1-31. The information originally charged Tricia with parental kidnapping of both C.S.N. and T.R.S., though it is unclear if she pled guilty to kidnapping both children or only C.S.N. See Doc. 1-18; Doc. 1-31.

On March 5, 2015, Nygaard through retained counsel filed a notice of appeal of the Tribal Court temporary custody order. Doc. 64-5 at 19–20; Doc. 8 at ¶ 51; Doc. 1-20 at 14–16; Doc. 1-29. Although the notice of appeal named just Nygaard, the Brief of Appellants Aarin Nygaard and Terrance Stanley, Jr., and other matters filed make clear that counsel meant the appeal to be on behalf of both Nygaard and Stanley. Doc. 64-14 (Cheyenne River Sioux Tribe Court of Appeals No. 15A03) at 8–21, 102–03. Nygaard and. Stanley on appeal argued that North Dakota had continuing and exclusive jurisdiction, that the Tribal Court lacked jurisdiction, and that the lack of notice to Nygaard and Stanley of the Tribal Court proceedings violated their Due Process Rights. Doc. 8 at ¶ 51: Doc. 1-20 at 16; Doc. 1-29; Doc. 1-30; Doc. 64-14 at 3–99. Nygaard and Stanley's appellate brief attached many documents not filed at that point in the underlying Tribal Court case, including the interim order awarding Stanley temporary full residential custody of T.R.S., Doc. 1-30 at 74–78, Doc. 64-14 at 70–71; and the amended interim order awarding Nygaard temporary full residential custody of C.S.N., Doc. 1-30 at 79–84; Doc. 64-14 at 86–91.

On April 15, 2015, Chief Justice Frank Pommersheim of the Cheyenne River Sioux Tribal Court of Appeals ("Tribal Court of Appeals") issued a one-page order remanding the case to the Tribal Court for an immediate rehearing before Chief Judge Claymore in which Nygaard was to be given the full opportunity to participate. Doc. 8 at ¶ 53; Doc. 1-32; Doc. 64-14 at 100. Appellants’ counsel thereafter wrote to Chief Justice Pommersheim to ask for an amended order to include Stanley, but no amended order issued. Doc. 64-14 at 102–03. The Tribal Court of Appeals did not reach the merits of any issue in this first appeal.

Nygaard received a summons from the Tribal Court letting him know that he was required to file an answer to the petition and that the new hearing was scheduled for May 11, 2015. Doc. 8 at ¶ 54; Doc. 1-33; Doc. 64-5 at 25. Nygaard and Stanley responded to the petition by filing on May 8, 2015, a motion to dismiss with legal argument and a request for a hearing on that motion. Doc. 8 at ¶ 54; Doc. 1-34; Doc. 64-5 at 28–42. The motion to dismiss made three arguments: (1) the Indian Child Welfare Act (ICWA) was not applicable; (2) the orders of the North Dakota state court were entitled to full faith and credit and enforcement by the Tribal Court under the Parental Kidnapping Prevention Act. (PKPA); and (3) the Tribal Court did not have subject matter jurisdiction or personal jurisdiction over Nygaard and Stanley. Doc. 1-34 at 1; Doc. 64-5 at 28. The motion to dismiss referenced as attachments many documents including the North Dakota state court custody orders, but the Tribal Court records contain only the motion to dismiss and not the referenced attachments.¹¹ Doc. 64-5 at 28–42. Nygaard and Stanley also informed the Tribal Court that their counsel would make a special appearance and that they would not be personally appearing at the May 11 hearing, worrying that an appearance could be construed as consent to the Tribal Court's jurisdiction. Doc. 1-34 at 2.

11 This Court does not know if counsel for Nygaard and Stanley neglected to attach the exhibits referenced in the brief. The same motion to dismiss appears later in the Tribal Court records in 14FC391, again without the attachments. Doc. 64-5 at 57–70. Many other pleadings filed in Tribal Court elsewhere have attachments within the Tribal Court records. A copy of the motion to dismiss attached to the Amended Complaint in this case contained those attachments. Doc. 1-34. Ultimately this is beside the point, given that the North Dakota state court orders were in Tribal Court records by the time of the third appeal to the Tribal Court of Appeals.

Although the Tribal Court of Appeals had ordered the Tribal Court to hold an "immediate hearing," it did not hold a hearing on May 11, 2015, on either the child custody determination or on the motion to dismiss. Doc. 8 at ¶ 54. On June 27, 2015, Nygaard and Stanley received notice that the hearing had been rescheduled to July 20, 2015. Doc. 8 at ¶ 56; Doc. 1-36; Doc. 64-5 at 43–46. Counsel¹² for Nygaard and Stanley was present on July 20, but the hearing was postponed because Ducheneaux had not received proper notice.¹³ Doc. 8 at ¶ 56. The same thing occurred in August, with Nygaard and Stanley's counsel attending a hearing, but the Tribal Court continued the hearing because Ducheneaux still had not received proper notice of the hearing. Doc. 8 at ¶ 56; Doc. 1-37: Doc. 64-5 at 71. The Tribal Court issued an order continuing the hearing to September 9, 2015. Doc. 8 at ¶ 56; Doc. 1-37: Doc. 64-5 at 76. In that order, the Chief Judge Claymore wrote: "Based, upon the findings the court concludes that it has subject matter jurisdiction over this matter and personal jurisdiction over the parties pursuant to the [Tribal] Children's Code," though it is unclear whether this was meant as a denial of the motion to dismiss. Doc. 1-37; Doc. 64-5 at 76.

12 Nygaard and Stanley originally had Wade Reimers as their Tribal Court attorney, but by this time had replaced him with Rose Ann Wendell because Reimers was leaving private practice. Doc. 64-5 at 47–50.

13 The Tribal Court practice appears to be for the Clerk of Court to send by certified mail a notice of hearing and for signed receipts of certified mail to be filed in the Tribal Court records.

At the Tribal Court hearing on September 9, 2015, Ted and Ducheneaux appeared without legal counsel, said that they did not know what the hearing was about, and requested a continuance to hire legal counsel. Doc. 8 at ¶ 61; Doc. 1-43; Doc. 64-6 at 2. Chief Judge Claymore granted a continuance rescheduling the hearing to September 30 over the objection of Nygaard and Stanley's counsel and gave Ted and Ducheneaux until September 23 to respond to the motion to dismiss. Doc. 8 at ¶ 61; Doc. 1-43; Doc. 64-6 at 2–3. In the order granting the continuance, the Tribal Court noted that the Tribal Court of Appeals, in Eberhard v. Eberhard, had held that the PKPA applied to the Tribal Court, though Judge Claymore thought the Tribal Court of Appeals might reconsider that decision so both parties should prepare to argue whether the PKPA applied. Doc. 8 at ¶ 61; Doc. 1-43; Doc. 64-6 at 2–3. The Cheyenne River Sioux Tribe then sought and received leave to file an amicus curiae brief to argue for the existence of Tribal Court jurisdiction, additional briefing was filed, and a Tribal Court hearing on the motion to dismiss finally was held on October 29, 2015. Doc. 64-6 at 9–87.

Meanwhile, the child custody proceedings in North Dakota state court moved forward with court trials occurring in both Nygaard and Stanley's cases. First, on August 24, 2015, the North Dakota state court held a court trial to determine the primary residential custody of C.S.N. Doc. 8 at ¶ 57; Doc. 1-38. Tricia was properly notified of the proceedings but being in jail in North Dakota at the time did not appear personally or through counsel. Doc. 8 at ¶ 57: Doc. 1-38 at 1. Nygaard appeared personally and with counsel. Doc. 8 at ¶ 57; Doc. 1-38 at 1. On September 4, 2015, the North Dakota state court issued Findings of Facts, Conclusions of Law and Order for Judgment awarding primary permanent residential responsibility to Nygaard, subject to Tricia's right to supervised parenting time. Doc. 8 at ¶ 59; Doc. 1-38. The North Dakota state court entered a final judgment in the case on September 21, 2015. Doc. 8 at ¶ 59; Doc. 1-40.

The North Dakota state court also held a court trial on September 1, 2015, to determine primary permanent residential responsibility of T.R.S. Doc. 8 at ¶ 58; Doc. 1-39. Tricia was properly notified of the proceedings, was in jail at the time, and did not appear personally or through counsel. Doc. 8 at ¶ 58; Doc. 1-39 at 1. Stanley appeared personally and with counsel. Doc. 8 at ¶ 58; Doc. 1-39 at 1. On September 8, the North Dakota state court issued Amended Findings of Facts, Conclusions of Law and Order for Judgment awarding primary permanent residential responsibility to Stanley, subject to Tricia's right to supervised parenting time. Doc. 8 at ¶ 60; Doc. 1-39. The court entered a final judgment in the case on September 24, 2015. Doc. 8 at ¶ 60; Doc. 1-42.

By the time the Tribal Court held its hearing on October 29, 2015, the North Dakota state court had awarded Nygaard and Stanley primary permanent residential responsibility for C.S.N. and T.R.S. respectively. Doc. 8 at ¶ 64. When the Tribal Court learned of this is unclear. On December 22, 2015, the Tribal Court issued an order denying Nygaard and Stanley's motion to dismiss. Doc. 1-47: Doc. 54-6 at 79–87. The Tribal Court explained that there were two federal enactments relevant to whether the Tribal Court had jurisdiction: the PKPA and ICWA. Doc. 1-47 at 1; Doc. 54-6 at 79. The Tribal Court first discussed whether the PKPA applied. Doc. 1-47 at 1–4; Doc. 54-6 at 79–83. The Tribal Court then turned to whether ICWA applied and determined that the Tribal Court had jurisdiction under ICWA because the case involved a foster care situation, not a parent-to-parent custody dispute. Doc. 1-47 at 4–5; Doc. 54-6 at 83–84. The Tribal Court concluded that ICWA took precedence over the PKPA, and therefore, the Tribal Court need not decide whether the PKPA applied to impede the Tribal Court's jurisdiction. Doc. 1-47 at 5; Doc. 54-6 at 83.

C. 2016

Nygaard and Stanley filed a notice of appeal with the Tribal Court of Appeals on January 19, 2016. Doc. 1 at ¶ 68; Doc. 1-52; Doc. 64-5 at 89. On this second appeal, Nygaard and Stanley jointly filed a brief arguing that the Tribal Court lacked both subject matter jurisdiction and personal jurisdiction under ICWA, the PKPA, and otherwise. Doc. 8 at ¶ 68; Doc. 1-53; Doc. 64-15 (Tribal Court of Appeals Case No.16A01) at 32–46. The Tribe as amicus curiae filed a brief arguing for Tribal Court jurisdiction. Doc. 64-15 at 12–26, 51–63. One of the legal issues framed in the appeal was application of the Tribal Court of Appeals precedent of Eberhard v. Eberhard, 24 I.L.R. 6059 (Chy. R. Sx. Ct. App. Feb. 18, 1997), which had held that the PKPA extended to tribes, such that full faith and credit must be given, generally without modification, to a prior child custody decree issued by a court with jurisdiction upon satisfaction of certain other requirements of the PKPA.

On June 27, 2016, the Tribal Court of Appeals heard oral arguments from both parties. Doc. 8 at ¶ 69; Doc. 1-54. On September 1, 2016, the Tribal Court of Appeals issued a per curiam opinion declining to rule on the Tribal Court's jurisdiction under the PKPA or ICWA because the Tribal Court had not received evidence or made factual findings on matters such as whether North Dakota was the "home state" of these children under the PKPA, whether the children are "residents" of the Cheyenne River Indian Reservation under ICWA, or whether the children were kidnapped or brought illegally to the Reservation.¹⁴ Doc. 1-55 at 4; Doc. 64-15 at 105. However, the court did find that Nygaard and Stanley were denied Due Process in the temporary custody proceeding when they were not notified of the hearing or given an opportunity to be heard. Without having decided the issue of Tribal Court jurisdiction, the Tribal Court of Appeals reversed and remanded the case to give Nygaard and Stanley an opportunity to be heard and to argue that the North Dakota state court custody orders be recognized in Tribal Court based on comity under a Tribal Council Resolution adopted in 1997. Doc. 1-55 at 5–8; Doc. 64-15 at 105–108. On that subject, the Tribal Court of Appeals wrote: "It is further noted that given the already lengthy proceedings in this case—now approaching almost two years—the resolution of comity issue shall be handled directly on remand and without the necessity of filing a new and independent action." Doc. 1-55 at 7; Doc. 64-15 at 107.

14 On April 6, 2015, Tricia received a five-year sentence, with three years suspended, after she pleaded guilty to parental kidnapping in North Dakota state court. Doc. 1-34 at 92–93. That North Dakota criminal disposition record appears not to have been part of the Tribal Court records at the time of this second appeal to the Tribal Court of Appeals.

After remand, on September 20, 2016, Nygaard and Stanley requested that the Tribal Court hold an evidentiary hearing. Doc. 8 at ¶ 70; Doc. 1-56; Doc. 64-7 at 3. Through counsel Nygaard and Stanley submitted a proposed order for off-reservation visitation to which Ducheneaux objected. Doc. 64-7 at 5–8. Chief Judge Claymore set a hearing on visitation rights to occur on October 27, 2016, and Nygaard and Stanley sought a continuance. Doc. 64-7 at 42–57.

On November 10, 2016, Nygaard and Stanley filed a petition for a writ of habeas corpus in the United States District Court for the District of North Dakota against many of the same parties named in this action, including naming Chief Judge Claymore. Doc. 8 at ¶ 70; Doc. 1-57. Nygaard and Stanley twice filed motions requesting the Tribal Court to stay the proceeding until the federal case was resolved. Doc. 8 at ¶ 70; Doc. 1-58; Doc. 64-7 at 70, 77. Chief Judge Claymore declined to stay the case, but continued hearings on the issue of paternal visitation. Doc. 8 at ¶ 70; Doc. 1-70; Doc. 1-71; Doc. 64-7 at 74–75; Doc. 64-8 at 59–61. Chief Judge Claymore appointed a guardian ad litem for the children in March of 2017. Doc. 64-8 at 62–63.

D. 2017

In the federal habeas corpus case in North Dakota, the Tribal Defendants filed a motion to dismiss under Rule 12, raising the same arguments that they raise here—lack of subject matter jurisdiction and Nygaard and Stanley's failure to exhaust tribal remedies. See Doc. 1-59 at 1. The U.S. District Court for the District of North Dakota granted the motion to dismiss without prejudice to refiling, finding that Nygaard and Stanley had failed to exhaust tribal remedies. Doc. 1-59 at 1. The federal court explained that more evidence was needed to determine whether the temporary custody order was a foster care placement, in which case ICWA applies, or a competing divorce custody order, in which case ICWA does not apply. Doc. 1-59 at 21–22. The court also concluded that, in any event, the factual record was not developed enough to determine whether the federal court had jurisdiction to issue the writ requested. Doc. 1-59 at 1–2, 22.

After the U.S. District Court for the District of North Dakota's dismissal of their petition, Nygaard and Stanley filed a petition for writ of mandamus with the Tribal Court of Appeals. Doc. 8 at ¶ 72; Doc. 1-69; Doc. 64-8 at 74–76. In that petition, Nygaard and Stanley alleged that the Tribal Court failed to set an evidentiary hearing in accordance with the Tribal Court of Appeals opinion and order, but instead scheduled a hearing to determine the parents’ visitation rights and then continued the hearing multiple times. Doc. 1-69; Doc. 64-8 at 74–76. Nygaard and Stanley requested that a special judge be appointed to conduct the evidentiary hearing and resolve the jurisdiction issues in this case. Doc. 1-69; Doc. 64-8 at 74–76.

On July 20, 2017, the Tribal Court of Appeals denied the petition, noting that a hearing had been scheduled on July 24, 2017, to determine whether the North Dakota state custody orders should be granted comity. Doc. 8 at ¶ 72; Doc. 1-60; Doc. 64-8 at 83–84. Nygaard and Stanley's counsel had objected to holding the hearing on July 24; they probably were unaware that the Tribal Court of Appeals days earlier had anticipated the hearing would be held as scheduled. Doc. 8 at ¶ 73; Doc. 1-61 at 1; Doc. 64-8 at 86–88. Neither Nygaard and Stanley nor their counsel appeared at the July 24 hearing. Doc. 8 at ¶ 73; Doc. 1-61 at 1. The Tribal Court dismissed without prejudice any request to grant comity to the North Dakota orders because Nygaard and Stanley had failed to appear in Tribal Court to present evidence that notice and due process was afforded to Tricia by the North Dakota state court. Doc. 8 at ¶ 73; Doc. 1-61 at 3; Doc. 54-8 at 88–90. The Tribal Court left its visitation order in place. Doc. 54-8 at 90.

Nygaard and Stanley then pursued different approaches in Tribal Court proceedings for a few months. Stanley terminated the attorney he shared with Nygaard and, contrary to that attorney's advice, exercised visitation with T.R.S. on the Reservation on terms set by the Tribal Court. Doc. 54-8 at 92–96.¹⁵ Meanwhile, Nygaard through counsel filed a Motion for Hearing Date on the jurisdictional issues on August 22, 2017. Doc. 64-8 at 100. On September 21, 2017, Tricia filed her own Petition for Temporary/Permanent Custody in Tribal Court. Doc. 64-8 at 111–13. Ducheneaux opposed Tricia's request, and nothing in the Tribal Court record suggests that it was granted.

15 Tribal Court records indicate that the initial visitation between Stanley and T.R.S. went well, but Ducheneaux later raised concerns to the Tribal Court about Stanley's behavior and ongoing visitation with T.R.S. Doc. 64-8 at 114–15, 118, 131–33.

On November 14, 2017, Nygaard filed in the main Tribal Court file 14FC391 a comprehensive pleading arguing again the lack of Tribal Court jurisdiction, requesting a hearing, and attaching 100 documents. Doc. 64-9 at 2–31, 32–150; Doc. 64-10 at 1–150; Doc. 64-11 at 1–112. Unlike the previous brief where attachments did not appear in the Tribal Court record, these attachments are in the Tribal Court record and include all of the North Dakota court's custody orders concerning C.S.N.: 1) the Interim Custody Order of July 24, 2014, Doc. 64-9 at 73–77: 2) the Ex Parte Order of September 12, 2014, Doc. 64-9 at 98–100: 3) the Amended Interim Order, Doc. 64-9 at 104–09: and 4) the Findings of Fact, Conclusions of Law and Order for Judgment and Judgment after the 2015 trial in North Dakota, Doc. 64-9 at 129–145. The filings also contain information on Tricia's legal issues in North Dakota state court. In short, after she was eligible for parole on her sentence for parental kidnapping, an Amended Order on Contempt held her in custody until the Supreme Court of North Dakota on September 20, 2017, reversed and ordered her immediate release because she had been held longer than the statutory six months for civil contempt. Doc. 64-10 at 3–38. Tricia left for the Cheyenne River Indian Reservation after her release and may face consequences for an apparent violation of her North Dakota state parole.

E. 2018

Separately, on March 21, 2018, Stanley acting pro se filed in the main Tribal Court file 14FC391 a Petition to Enforce Foreign Judgment of Custody and Visitation, to which he attached the most recent North Dakota state judgment under which he. claimed custody of T.R.S. Doc. 64-12 at 173–181. Thus, unlike at the time of the second Tribal Court of Appeals decision or the U.S. District Court for the District of North Dakota's dismissal of that habeas corpus action, by March 21, 2018, both Nygaard and Stanley had filed the North Dakota state court custody orders and sought Tribal Court recognition of them. The Tribal Court judge who next ruled on issues of applicability on ICWA and PKPA and in turn Tribal Court jurisdiction was Judge Erin Shanley.

Judge Shanley heard from the parties and issued an order containing findings of fact and conclusions of law on April 18, 2018. Doc. 8 at ¶ 74; Doc. 1-62; Doc. 64-12 at 185–198. Judge Shanley began by noting that the remand from the Tribal Court of Appeals on September 1, 2016, required findings regarding whether North Dakota was the "home state" of the children under the PKPA; whether the children were "residents" of the Reservation under ICWA; and whether the children were kidnapped or brought illegally to the Reservation. Doc. 1-62 at 1; Doc. 64-12 at 185. After making factual findings, Judge Shanley concluded that ICWA did not govern because ICWA only applies when the Indian child resides or is domiciled within the reservation and the children here resided or were domiciled in Fargo, North Dakota, before being brought to the Cheyenne River Sioux Indian Reservation illegally. Doc. 1-62 at 6–9; Doc. 64-12 at 190–93.

Judge Shanley next concluded that the PKPA applied to the Tribal Court based on the Tribal Court of Appeals decision in Eberhard v. Eberhard, 24 I.L.R. 6059 (Chy. R. Sx. Tr. Ct. 1997). Doc. 1-62 at 10; Doc. 64-12 at 195. As such, the PKPA deprived the Tribal Court of jurisdiction to entertain the petition for temporary custody and prevented the Tribal Court from modifying prior North Dakota state court custody orders. Doc. 1-62 at 9–11; Doc. 64 at 194–196. Finally, Judge Shanley denied Nygaard's September 24, 2014, petition to recognize the North Dakota state court's ex parte order, reasoning that the order was not entitled to comity under tribal law because Tricia was not given an opportunity to be heard on that ex parte order. Doc. 1-62 at 11–12; Doc. 64 at 196–97.

Ducheneaux appealed Judge Shanley's order and sought an emergency stay to ensure that the children remained in her care during the pendency of the appeal. Doc. 64-13 at 1–5; Doc. 64-16 at 2–6 (Tribal Court of Appeals No. 64-16).¹⁶ Material in the Tribal Court record indicates that Ducheneaux has provided good care of T.R.S. and C.S.N. Judge Shanley on May 3, 2018, granted the motion for stay pending appeal. Doc. 64-13 at 6; Doc. 64-16 at 8.

16 Ducheneaux also petitioned for temporary/permanent custody on May 2, 2018, which resulted in a new Tribal Court file being opened, although little activity occurred in that case. Doc. 64-17 (18FC149) at 1–31. On June 1, 2018, Tricia petitioned for visitation, resulting in another Tribal Court case being opened, in which there has been almost no activity. Doc. 64-18 (18FC180) at 1–32.

On May 14, 2018, the Cheyenne River Sioux Tribal Council adopted a tribal resolution overruling Eberhard, the Tribal Court of Appeals opinion holding that the PKPA is applicable to tribes. Doc. 8 at ¶ 75; Doc. 1-63. The Tribal Resolution declared that "the Cheyenne River Sioux Tribe is not a "State" within the meaning of the [PKPA] ... and is not subject to the Act's obligations." Doc. 1-63 at 5. The Tribal Resolution continued that "custody and visitation orders and judgements of foreign Tribal and State courts may be recognized and enforced by the Cheyenne River Sioux Tribal Courts under the principles of comity ... not under principles of full faith and credit." Doc. 1-63 at 6.

The Tribal Court of Appeals issued a briefing scheduling order and allowed the Tribe to file an amicus curiae brief. The Tribal Court of Appeals denied motions of Nygaard and Stanley to reverse the stay pending appeal and to dismiss the appeal when Ducheneaux missed her deadline to file a brief. Doc. 1-64; Doc. 8 at ¶76; Doc. 64-14 at 11, 18–21, 48–51. As part of its September 24, 2018, Memorandum Opinion and Order setting a new briefing schedule, the Tribal Court of Appeals remanded the case, noting that more than Tribal Court jurisdiction was at stake; the Tribal Court of Appeals directed that the guardian ad litem prepare a written report on the status and wellbeing of the children and that the trial court conduct a prompt hearing to receive evidence and issue findings of fact about the involvement of the FBI in effectuating Tricia's arrest and of the DSS in removing the children from Tricia in 2014. Doc. 1-64 at 1–4; Doc. 64-16 at 48–51.

On December 19, 2018, Tribal Judge Curtis Carroll held the hearing contemplated on remand. Doc. 8 at ¶ 77; Doc. 1-68; Doc. 64-13 at 33–36. Tricia and Ducheneaux personally appeared at the hearing along with counsel; Nygaard appeared at the hearing through counsel only, and Stanley did not appear at all. Doc. 1-68 at 1: Doc. 64-13 at 33–36. At the hearing, Judge Carroll heard testimony from Cheyenne River Sioux Tribe Detective Larry LeBeau, Guardian Ad Litem Carmen O'Leary, former DSS caseworker Jenny Farlee, and Tricia. Doc. 1-68 at 1. The Tribal Court then made findings of fact concerning the North Dakota custody proceedings, Tricia's allegations of abuse against Nygaard, her arrest, and DSS's placement of the children with Ted. See Doc. 1-68; Doc. 64-13 at 33–36. The findings of fact largely focused on questions concerning Tricia's arrest and lack of notice of certain North Dakota hearings, but the finding of fact include: "There are North Dakota custody orders that award custody of the minor children to their fathers." Doc. 1-38 at 2; Doc. 64-13 at 34.

F. 2019

The evidentiary hearing having been conducted, the Tribal Court of Appeals consolidated briefing and heard oral arguments on Ted and Ducheneaux's appeal on January 4, 2019. Doc. 8 at ¶ 78; Doc. 1-65 at 10; Doc. 64-16 at 26–40, 52–61, 75–90, 91–99. The Tribal Court of Appeals then issued its opinion and order on February 25, 2019. Doc. 8 at ¶ 78; Doc. 1-65; Doc. 64-16 at 124–144. The Tribal Court of Appeals recognized that there were three issues on appeal—whether the PKPA controls and, if so, whether North Dakota is the "home state" under that statute; whether ICWA controls jurisdiction to place jurisdiction with the Tribal Court; and whether there is an independent source of Tribal Court jurisdiction. Doc. 1-65 at 10; Doc. 64-16 at 133. The court first overruled its decision in Eberhard and held that the PKPA does not apply to Indian tribes. Doc. 1-65 at 10–17; Doc. 64-16 at 133–140. It then determined that ICWA did not apply in either forum because the North Dakota custody dispute was between parents where ICWA does not govern and because ICWA is meant to apply in state and not in tribal courts. Doc. 1-65 at 17–19; Doc. 64-16 at 140–42.

Having concluded that neither the PKPA nor ICWA applied, the Tribal Court of Appeals reasoned that the Tribal Court had jurisdiction under the Tribal Code. Doc. 1-65 at 19–20; Doc. 64-16 at 142–43. Under C.R.S.T. Children's Code § 7.01, the Tribal Court "shall have jurisdiction over any child who is a member or eligible to become a member of the Cheyenne River Sioux Tribe no matter where domiciled, residing or found ...." Doc. 1-65 at 19; Doc. 64-16 at 142. Section 7.01 further provides that the Tribal Court "may decline jurisdiction where a forum with concurrent jurisdiction is exercising its authority or in cases where neither the child nor either parent is a Reservation resident in cases where justice may require declination." Doc. 1-65 at 19; Doc. 64-16 at 142. The Tribal Court of Appeals reversed and remanded the case to the Tribal Court for an "immediate" rehearing to review the status of parental visitation and whether the current temporary award of custody to Ducheneaux was still in the best interests of the children. Doc. 1-65 at 20; Doc. 64-16 at 143. Nygaard and Stanley allege that six months later, at the time when they filed this petition, the Tribal Court still had not notified them of a hearing date or held a hearing. Doc. 8 at ¶ 78.

On August 28, 2019, Nygaard and Stanley filed a petition for writ of habeas corpus against the Tribal Defendants and others in this Court. Doc. 1. The petition included 72 attachments. See Doc. 1. Nygaard and Stanley have since amended their petition. Doc. 8. After a substantial delay in getting Defendants served, the Tribal Defendants, earlier this year, filed a motion to dismiss, Doc. 42. to which this Court now turns. II. Standard of Review

The Tribal Defendants move to dismiss the petition under Rule 12 of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to exhaust tribal remedies.¹⁷ Doc. 42. As a general matter, the Federal Rules of Civil Procedure apply to habeas corpus proceedings to the extent that they are not inconsistent with specific habeas corpus rules. Banister v. Davis, ––– U.S. ––––, 140 S. Ct. 1698, 1705, 207 L.Ed.2d 58 (2020) (citing Fed. R. Civ. P. 81(a)(4) ). This includes Rule 12 of the Federal Rules of Civil Procedure. Ebert v. Clarke, 320 F. Supp. 2d 902, 909 (D. Neb. 2004) (collecting cases); Hemsher v. United States, No. 4:19-CV-04172-KES, 2020 WL 4719985, at *7 (D.S.D. Feb. 10, 2020), report and recommendation adopted as modified, 2020 WL 2092896 (D.S.D. May 1, 2020). Franklin v. Dooley, 4:15-CV-04149-LLP, 2015 WL 9608750, at *1 (D.S.D. Nov. 23, 2015), report and recommendation adopted, 2016 WL 67695 (D.S.D. Jan. 5, 2016).

17 The Tribal Defendants did not specify under what subsections of Rule 12 they are bringing their motion to dismiss. The Tribal Defendants raise both jurisdictional and non-jurisdictional arguments in support of their motion to dismiss, so this Court construes their motion to dismiss as being under Rule 12(b)(1) and (6). See World Fuel Servs., Inc. v. Nambe Pueblo Dev. Corp., 362 F. Supp. 3d 1021, 1087 (D.N.M. 2019) (finding that Rule 12(b)(1) is an improper vehicle for considering the tribal exhaustion doctrine and that failure to exhaust tribal remedies should instead be raised in a Rule 12(b)(6) motion).

Rule 12(b)(1) permits dismissal for lack of subject matter jurisdiction. On a motion to dismiss under Rule 12(b)(1), the standard of review depends on whether the defendant is making a facial attack or factual attack on subject matter jurisdiction. Stalley v. Cath. Health Initiatives, 509 F.3d 517, 520–21 (8th Cir. 2007). Where the defendant makes a facial attack to challenge whether the facts alleged in the complaint establish subject matter jurisdiction under Rule 12(b)(1), the plaintiff is afforded similar safeguards as in a Rule 12(b)(6) motion. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). Namely, the Court must "accept as true all factual allegations in the complaint, giving no effect to conclusory allegations of law," and determine whether the plaintiff's alleged facts "affirmatively and plausibly suggest" that jurisdiction exists. Stalley, 509 F.3d at 521. The Court's review is limited to the face of the pleadings. Branson Label. Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015).

On the other hand, where the defendant attacks the factual basis for subject matter jurisdiction, the court can consider matters outside the pleadings, and the nonmoving party does not have the benefit of 12(b)(6) safeguards. Id. at 914–15 ; Osborn, 918 F.2d at 729 n.6. "A factual attack occurs when the defendant challenges the veracity of the facts underpinning subject matter jurisdiction." Davis v. Anthony, Inc., 886 F.3d 674, 679 (8th Cir. 2018) (cleaned up and citation omitted). In that case, "no presumptive truthfulness attaches to the plaintiff's allegations," and a "court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Osborn, 918 F.2d at 730 (citation omitted).

The Tribal Defendants’ arguments arguably are a facial attack on this Court's jurisdiction because the Tribal Defendants do not dispute the facts alleged by the plaintiffs, but rather argue that the allegations are insufficient to establish jurisdiction under 25 U.S.C. § 1303. See United Keetoowah Band of Cherokee Indians in Okla. v. Barteaux, No. 20-CV-8-GKF-JFJ, 527 F.Supp.3d 1309, 1317–18 (N.D. Okla. Sept. 30, 2020) (determining that defendant's motion to dismiss presented a facial challenge to the court's jurisdiction because the defendant argued that the facts as alleged in the petition did not amount to "detention" within the meaning of § 1303 ). However, at the motion hearing in this case, both the Tribal Defendants and Nygaard and Stanley agreed that this Court could take judicial notice of the Tribal Court records in ruling on the motion to dismiss, so to that extent, the Court has considered some matters outside of the complaint and its attachments.

Rule 12(b)(6) permits dismissal for failure to state a claim on which relief can be granted. On a motion to dismiss under Rule 12(b)(6), "[c]ourts must accept a plaintiff's factual allegations as true and construe all inferences in the plaintiff's favor but need not accept a plaintiff's legal conclusions." Retro Television Network, Inc. v. Luken Commc'ns, LLC, 696 F.3d 766, 768–69 (8th Cir. 2012). To survive a motion to dismiss for failure to state a claim, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although detailed factual allegations are unnecessary, the plaintiff must plead enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely,’ " Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ). Still, "conclusory statements" and "naked assertion[s] devoid of further factual enhancement" do not satisfy the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (alteration in original) (citation and internal quotation marks omitted).

III. Discussion

Nygaard and Stanley seek habeas corpus relief under 25 U.S.C. § 1303. Doc. 8. The Tribal Defendants have moved to dismiss the petition based on four arguments: (1) lack of federal question jurisdiction; (2) failure to exhaust tribal remedies; (3) sovereign immunity; and (4) the unavailability of injunctive or declaratory relief under § 1303. Doc. 43; Doc. 54. This Court will address each argument in turn.

A. Federal Question Jurisdiction

First, the Tribal Defendants contend that this Court lacks subject matter jurisdiction under 28 U.S.C. § 1331.¹⁸ "Federal courts are courts of limited jurisdiction." Great Lakes Gas Transmission Ltd. P'ship v. Essar Steel Minn. LLC, 843 F.3d 325, 328 (8th Cir. 2016) (quoting Gunn v. Minton, 568 U.S. 251, 256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) ). Federal courts can only adjudicate those cases which the Constitution and Congress placed within their jurisdiction. Id. (quoting Gunn, 568 U.S. at 256, 133 S.Ct. 1059 ). Federal district court jurisdiction in civil cases generally arises under either diversity of citizenship ( 28 U.S.C. § 1332 ) or a federal question ( 28 U.S.C. § 1331 ). Nygaard and Stanley assert that this Court has federal question jurisdiction under 28 U.S.C. § 1331. Nygaard and Stanley bring this action under 25 U.S.C. § 1303. the habeas corpus provision of the Indian Civil Rights Act (ICRA). However, the Tribal Defendants argue that § 1303 cannot be used to challenge a child custody decree issued by a tribal court. Under § 1303, the "privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe." The Tribal Defendants assert that the children have not been "detained" by the Tribal Court, and therefore Nygaard and Stanley have no cause of action arising under federal law.

18 Subject matter jurisdiction exists under 28 U.S.C. § 1331 when the cause of action arises "under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

To invoke a federal court's jurisdiction under § 1303, the petitioner must demonstrate "a severe actual or potential restraint on liberty." Jeffredo v. Macarro, 599 F.3d 913, 919 (9th Cir. 2010) ; Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 880 (2d Cir. 1996) ; Stymiest v. Rosebud Sioux Tribe, No. CIV. 14-3001, 2014 WL 1165925, at *2 (D.S.D. Mar. 21, 2014) (citation omitted). This does not necessarily mean that the petitioner must show he or she is in actual physical custody. As the Second Circuit has commented, "It is well established that actual physical custody is not a jurisdictional prerequisite for federal habeas review." Poodry, 85 F.3d at 893. The "custody requirement is simply designed to limit the availability of habeas review ‘to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate.’ " Id. at 894 (quoting Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) ). Thus, in determining whether the petitioners have satisfied the jurisdictional prerequisites for habeas review, this Court must consider the severity of the alleged restraint. Id.

Cases involving habeas corpus relief under 28 U.S.C. § 2254, which is applicable by analogy to actions under 25 U.S.C. § 1303, guide the determination of the severity of the alleged restraint.¹⁹ Poodry, 85 F.3d at 892 ; Weatherwax on Behalf of Carlson v. Fairbanks, 619 F. Supp. 294, 296 n.2 (D. Mont. 1985) ; see also DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510, 515 (8th Cir. 1989) (looking to caselaw examining 28 U.S.C. § 2254 to guide its analysis under 25 U.S.C. § 1303 ). Federal habeas corpus relief under 28 U.S.C. § 2254 "has generally not been available to challenge a state decree on parental rights or child custody." DeMent, 874 F.2d at 515 ; see also Lehman v. Lycoming Cnty. Children's Servs. Agency, 458 U.S. 502, 511, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982) ; U.S. ex rel. Mueller for & on Behalf of Mueller v. Mo. Div. of Fam. Servs., 123 F.3d 1021, 1024 (8th Cir. 1997). Courts have thus concluded that under normal circumstances, § 1303 does not allow petitioners to collaterally attack a tribal child custody order. E.g., Johnson v. Jones, No. 605CV1256ORL22KRS, 2005 WL 8159765, at *3 (M.D. Fla. Nov. 3, 2005) (citations omitted); Azure-Lone Fight v. Cain, 317 F. Supp. 2d 1148, 1151 (D.N.D. 2004) ; Goslin v. Kickapoo Nation Dist. Ct., No. 98-4107-SAC, 1998 WL 1054223, at *3 (D. Kan. Dec. 2, 1998) ; LaBeau v. Dakota, 815 F. Supp. 1074, 1076–77 (W.D. Mich. 1993) (citation omitted); Sandman v. Dakota, 816 F. Supp. 448, 451 (W.D. Mich. 1992) (citation omitted), aff'd, 7 F.3d 234 (6th Cir. 1993) ; Weatherwax, 619 F. Supp. at 296. However, the Eighth Circuit has held that a § 1303 habeas corpus action can challenge a tribal custody order in limited circumstances, particularly if the tribal court acts outside of its jurisdiction and refuses to give full faith and credit to the determination of another court. DeMent, 874 F.2d at 515. In DeMent, a father who was non-Indian and a mother who was an Oglala Sioux Tribe member battled one another for physical custody of their three minor children. Id. at 511. The couple had lived together with their children in California until the mother took the children to live with her on the Pine Ridge Indian Reservation. Id. The father filed an action in California state court, and the court awarded him custody of the children. Id. at 512. When the California state court refused to reconsider its decision, the mother filed an action in Oglala Sioux Tribal Court. Id. The tribal court refused to enforce the California state court order and awarded custody to the mother. Id. The father filed a lawsuit in this Court, seeking a writ of habeas corpus to regain custody of his children. Id. On appeal, the Eighth Circuit considered whether habeas relief was available to the father under the facts of the case. Id. at 513-15. The Eighth Circuit ultimately held that it was, although the father needed to exhaust Tribal Court remedies first. Id. at 515–17.

19 Under 28 U.S.C. § 2254(a), "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."

The Eighth Circuit in DeMent started with the general proposition that habeas corpus relief was not available to collaterally attack a state or tribal court custody decree, citing Lehman, 458 U.S. at 511, 102 S.Ct. 3231. DeMent, 874 F.2d at 515. In Lehman, the Supreme Court of the United States held that a mother could not challenge a state court judgment terminating her parental rights through the federal habeas corpus statute, 28 U.S.C. § 2254. 458 U.S. at 511, 102 S.Ct. 3231. The Eighth Circuit found the facts of DeMent distinguishable from Lehman. Unlike the mother in Lehman, the father in DeMent was not directly attacking the tribal court's custody ruling. DeMent, 874 F.2d at 515. Rather, the father was challenging the tribal court's jurisdiction and its refusal to give the California custody decree full faith and credit. Id.

The Eighth Circuit in DeMent reasoned that the children were being "detained" by the tribal court within the meaning of § 1303. Id. Before awarding custody to the mother, the tribal court made the children wards of the court and thereafter refused to enforce the California custody decree. Id. Furthermore, the Oglala Sioux Tribal Council passed a resolution proclaiming that the tribal court had sole jurisdiction over the children. Id. The Eighth Circuit concluded that a federal court order may be the only way to compel the tribal court to return the children to their father. Id.

The facts in DeMent are very similar to the facts of this case, such that the analysis in DeMent applies here. Tricia, an enrolled member of the Cheyenne River Sioux Indian Tribe then living in North Dakota and amid custody litigation in North Dakota, violated an order of the North Dakota state court by taking C.S.N.²⁰ out of North Dakota. Thereafter, the North Dakota state court granted temporary custody of C.S.N. and T.R.S. to each of their fathers and ordered Tricia to return the children to North Dakota. Eventually, the North Dakota state court held full trials, and both fathers were granted full permanent custody. Meanwhile, after Tricia was arrested, the Tribal Court granted temporary custody of the children to a non-parent relative without giving notice to either father. Since learning of the Tribal Court proceeding, the fathers have contested the Tribal Court's jurisdiction and argued that the North Dakota state court custody orders must be given full faith and credit under the PKPA. In bringing this action, Nygaard and Stanley do not question the Tribal Court's wisdom in placing the children with their aunt, but rather challenge the Tribal Court's jurisdiction to make that decision in the first place and their refusal to give full faith and credit to the North Dakota state court custody orders. The parallel facts between this case and DeMent justify concluding that, just as in DeMent, there is a viable § 1303 habeas case here.

20 There was no North Dakota state court order barring her from taking T.R.S. out of state, but there was a pending custody proceeding in North Dakota when she took T.R.S. to live on the Reservation. Doc. 1-23; Doc. 8 at ¶ 43.

The Tribal Defendants argue that DeMent does not apply because DeMent turned on the tribal court's decision to make the children wards of the court and the tribal council's resolution declaring that the tribe had sole jurisdiction over the children, and neither of those facts are present here.²¹ Although the Eighth Circuit considered those factors in its analysis, the court's main point of emphasis was the competing custody orders. The Eighth Circuit stated:

21 The Tribal Defendants also argue that DeMent is distinguishable because DeMent involved a custody dispute between divorced parents whereas the Tribal Court case here involves an application for temporary custody by a non-parent relative. That argument draws a distinction without a difference, especially in view of the seven-year duration of what began as a temporary custody arrangement.

This case no longer represents a child custody battle; it has become a dispute over whether a tribal court violates a non-Indian's due process rights by refusing to give full faith and credit to a state custody decree. Thus, the legal issue involved in this case is distinguishable from that sought to be resolved in the Lehman case.

Dement, 874 F.2d at 515. Indeed, courts generally distinguish DeMent on the basis that DeMent involved competing custody decrees or a challenge to the tribal court's jurisdiction. See Johnson, 2005 WL 8159765, at *3 n.5 (reasoning that DeMent was distinguishable because the case at hand did not involve competing custody decrees); Goslin, 1998 WL 1054223, at *3 (holding that § 1303 was an improper vehicle for plaintiff's challenge to the tribal court's custody ruling because the plaintiff's challenge was nothing more than a collateral attack and did not deal with the lawfulness of the tribal court exercising jurisdiction); LeBeau, 815 F. Supp. at 1077 (distinguishing DeMent based on petitioner's acquiescence to the tribal court's exercise of jurisdiction); Sandman, 816 F. Supp. at 451–52 (finding DeMent inapplicable because the tribal court's jurisdiction was not in question and there was no issue of extending full faith and credit to the determination of any other court). Thus, whether § 1303 habeas relief is available turns on whether tribal courts act outside of their jurisdiction and refuse to enforce another court's custody decree, not whether the tribal courts make the children wards of the court or the tribal council becomes involved.²² See DeMent, 874 F.2d at 515–16 ; United States ex re. Cobell v. Cobell, 503 F.2d 790, 794–95 (9th Cir. 1974). Because Nygaard and Stanley contest the Tribal Court's jurisdiction over the children and refusal to grant full faith and credit to the North Dakota state court custody orders, they have satisfied the jurisdictional prerequisites to maintain a § 1303 action against the Tribal Defendants.²³

22 Nygaard and Stanley argue with some justification that the Tribal Council inserted itself into this case when it passed a tribal resolution declaring that the PKPA does not apply to Indian Tribes—a resolution they passed only after the Tribal Court had granted Nygaard and Stanley's motion to dismiss on the basis that the PKPA did apply to Indian tribes. See Doc. 1-63.

23 Citing National Farmers Union Insurance Companies v. Crow Tribe of Indians, 471 U.S. 845, 852, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985), Nygaard and Stanley assert that this Court has subject matter jurisdiction because the "question of whether an Indian tribe has the power to compel a non-Indian to submit to the civil jurisdiction of a tribal court is a federal question under 28 U.S.C. § 1331." Doc. 1 at ¶ 9. Whether the North Dakota state court or the Tribal Court had jurisdiction to determine the custody of Nygaard and Stanley's children might be a federal question independently conferring jurisdiction on this Court. See DeMent, 874 F.2d at 513 ("Furthermore, we cannot overlook the fact that the basic dispute in this case is whether California or the tribe had jurisdiction to determine the custody of DeMent's children. The question of whether an Indian tribe has the power to compel a non-Indian to submit to the civil jurisdiction of a tribal court is a federal question under 28 U.S.C. § 1331." (citing Nat'l Farmers Union Ins. Co., 471 U.S. at 852, 105 S.Ct. 2447 )). Nygaard and Stanley are non-Indian; their children however are Indian. Under these circumstances, federal jurisdiction may exist under § 1303 and separately and independently under 28 U.S.C. § 1331. See Barteaux, 527 F.Supp.3d at 1317–22 (finding that the court had jurisdiction to determine whether the tribal court exceeded its jurisdiction in an adoption proceeding under the general federal question statute rather than the "detention" language in § 1303 ).

B. Tribal Sovereign Immunity and Exhaustion of Tribal Court Remedies

The Tribal Defendants next argue that they have sovereign immunity and that Nygaard and Stanley failed to exhaust tribal remedies. Indian tribes are considered "domestic dependent nations" that possess "inherent sovereign authority over their members and territories." Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) (cleaned up and citation omitted). This sovereignty underlies both the doctrine of tribal sovereign immunity and the doctrine of exhaustion of tribal court remedies. Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788–89, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014) ; Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 33 (1st Cir. 2000) ; Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1507 (10th Cir. 1997). First, Indian tribes possess "the common-law immunity from suit traditionally enjoyed by sovereign powers." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Sovereign immunity thus bars suits against Indian tribes "absent a clear waiver by the tribe or congressional abrogation." Okla. Tax Comm'n, 498 U.S. 505 at 509, 111 S.Ct. 905. A tribe's sovereign immunity may extend to a tribal entity or agency. J.L. Ward Assocs. v. Great Plains Tribal Chairmen's Health Bd., 842 F. Supp. 2d 1163, 1171–72, 1176–77 (D.S.D. 2012).

Second, the tribal exhaustion doctrine recognizes that tribal courts are an important part of tribal sovereignty and self-determination. Iowa Mut. Ins. v. LaPlante, 480 U.S. 9, 14–18, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) ; Nat'l Farmers Union Ins. v. Crow Tribe of Indians, 471 U.S. 845, 856, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985) ; Ninigret Dev. Corp., 207 F.3d at 33 (explaining that the concern for tribal sovereignty "forms the epicenter of the tribal exhaustion doctrine"); Kerr-McGee Corp., 115 F.3d at 1507 ("The tribal exhaustion requirement created by National Farmers is based on comity concerns for Indian tribes in maintaining their remaining sovereignty."). This doctrine requires litigants, in certain circumstances, to exhaust their remedies in tribal court before coming to federal court. Iowa Mut. Ins., 480 U.S. at 16–18, 107 S.Ct. 971 : DISH Network Serv. LLC v. Laducer, 725 F.3d 877, 882–83 (8th Cir. 2013). The doctrine thus allows tribal courts to assert authority over reservation affairs without having to "compete" against federal courts for the right to do so. Iowa Mut. Ins., 480 U.S. at 16, 107 S.Ct. 971 ; Duncan Energy Co. v. Three Affiliated Tribes of Ft. Berthold Reservation, 27 F.3d 1294, 1299 (8th Cir. 1994).

Tribal sovereign immunity and exhaustion of tribal court remedies are both "threshold" issues under Eighth Circuit precedent. Amerind Risk Mgmt. Corp. v. Malaterre, 633 F.3d 680, 684 (8th Cir. 2011) ("[T]ribal sovereign immunity is a threshold jurisdictional question."); Gaming World Int'l Ltd. v. White Earth Band of Chippewa Indians, 317 F.3d 840, 849 (8th Cir. 2003) ("The issue of tribal exhaustion is a threshold one because it determines the appropriate forum."). Some district court judges within this circuit have interpreted Davis v. Mille Lacs Band of Chippewa Indians, 193 F.3d 990 (8th Cir. 1999) (per curiam), as requiring exhaustion when a party raises tribal sovereign immunity as a defense. Romero v. Wounded Knee, LLC, CIV. 16-5024-JLV, 2018 WL 4279446, at *2 (D.S.D. Aug. 31, 2018) (citing Davis and stating that "the precedent of the ... Eighth Circuit requires the court to enforce the exhaustion of tribal court remedies before fully analyzing tribal sovereign immunity"); id. at *4 ("The law of the Eighth Circuit is clear when a party raises tribal sovereign immunity as a defense and tribal court remedies are not exhausted: the case goes to tribal court."); Malaterre v. Amerind Risk Mgmt., 373 F. Supp. 2d 980, 982 n.3 (D.N.D. 2005) (citing Davis and stating that "[i]t has been established in the Eighth Circuit that tribal exhaustion precedes the tribal immunity inquiry"); see also Ninigret Dev. Corp, 207 F.3d at 28 (reading Davis as holding that the issue of tribal sovereign immunity must be exhausted in the Eighth Circuit). That is, these judges read Davis as requiring federal courts to defer ruling on a defense of tribal sovereign immunity until that defense has been presented in tribal court.

But that was not the holding in Davis. Rather, the issue in Davis was whether a tribe's alleged waiver of sovereign immunity excused the tribal exhaustion requirement. The plaintiff in Davis sued a tribe and two of its officers under various federal and state laws. 193 F.3d at 991. The district court stayed the case so the plaintiff could bring an action in tribal court and exhaust her remedies there. Id. The tribal court dismissed most of the plaintiff's claims, and she failed to timely appeal that decision to the tribal appellate court. Id. The parties returned to federal court, and the district court granted the tribe's motion to dismiss based on the plaintiff's failure to exhaust and the tribal court having properly exercised jurisdiction over the case. Id. The plaintiff appealed to the Eighth Circuit, arguing that no exhaustion of tribal court remedies was necessary because the tribe had explicitly waived its sovereign immunity for her claims. Id. at 992. The Eighth Circuit disagreed:

We do not read a purported waiver of sovereign immunity by the [Tribe] as doing away with the exhaustion requirement. In fact, the Supreme Court has stated that the issue of a tribe's sovereign immunity is the very kind of question that is to be decided in the first instance by the tribal court itself. See National Farmers, 471 U.S. at 855–56, 105 S.Ct. 2447 ("[T]he existence and extent of a tribal court's jurisdiction will

require a careful examination of tribal sovereignty .... We believe that examination should be conducted in the first instance in the Tribal Court itself.")[.]

Davis, 193 F.3d at 992. Thus, while the Eighth Circuit did say that a "tribe's sovereign immunity is the very kind of question that is to be decided in the first instance by the tribal court itself," that statement was dicta to its decision that a purported waiver of tribal sovereign immunity does not excuse exhaustion of tribal court remedies and that the district court properly dismissed the case for failure to exhaust.

Other reasons counsel against reading Davis as requiring exhaustion when a party raises tribal sovereign immunity as a defense. First, the passage from National Farmers quoted by the Eighth Circuit in Davis addressed whether tribes, as sovereigns, had been divested of the authority to exercise jurisdiction over non-Indians on reservations. Nat'l Farmers, 471 U.S. at 855–56, 105 S.Ct. 2447. The passage did not concern tribal sovereign immunity from suit. Ninigret Dev. Corp., 207 F.3d at 28 n.3 (explaining that the passage from National Farmers addressed "the dependent status of Indian tribes and the intergovernmental relationship between states and tribes, as opposed to sovereign immunity"). Second, the Eighth Circuit has decided the issue of tribal sovereign immunity without even mentioning the tribal exhaustion doctrine, let alone requiring that the issue first be exhausted in tribal court. Hagen, 205 F.3d at 1043–45 (holding that sovereign immunity barred federal civil rights suits against a community college chartered by a tribe without discussing exhaustion); Dillon v. Yankton Sioux Tribe Hous. Auth., 144 F.3d 581, 583–84 (8th Cir. 1998) (holding that sovereign immunity barred federal civil rights suit against a tribal housing authority without mentioning exhaustion)²⁴ ; Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1244–46 (8th Cir. 1995) (finding that a tribe had waived sovereign immunity without considering exhaustion); see also Stanko v. Oglala Sioux Tribe, 916 F.3d 694, 696–700 (8th Cir. 2019) (holding that sovereign immunity barred suit against tribe and tribal officials acting in their official capacities but dismissing individual capacity claims against officials for failure to exhaust).

24 The tribal housing authority in Dillon moved to dismiss the case based on sovereign immunity and failure to exhaust tribal court remedies. Dillon v. Yankton Sioux Tribe Hous. Auth., 4:97-cv-04006-LLP, Doc. 15 (D.S.D. June 27, 1997). The district court converted the motion to one for summary judgment and granted the motion on the ground of sovereign immunity without deciding whether exhaustion was necessary. Id.

This Court elects to resolve the sovereign immunity issue itself. To be sure, exhaustion must sometimes precede a ruling on sovereign immunity, such as when there are questions over whether a contractual waiver of sovereign immunity was valid under tribal law. Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412, 1419–22 (8th Cir. 1996) ; Abdo v. Fort Randall Casino, 957 F. Supp. 1111, 1112–14 (D.S.D. 1997). But that is not the issue here.

C. Sovereign Immunity

The Supreme Court has made clear that ICRA does not waive a tribe's sovereign immunity. Santa Clara Pueblo, 436 U.S. at 59, 98 S.Ct. 1670 ("[S]uits against the tribe under the ICRA are barred by its sovereign immunity from suit."). Nygaard and Stanley thus cannot bring a habeas petition under 25 U.S.C. § 1303, an ICRA provision, against the Cheyenne River Sioux Tribe. But whether they can bring their habeas action against the Cheyenne River Sioux Tribal Court, Cheyenne River Sioux Tribal Court of Appeals, or its judges is a different question. Although ICRA does not waive a tribe's sovereign immunity, it does authorize suits against tribal officers. Id. at 60, 98 S.Ct. 1670 ("Congress clearly has power to authorize civil actions against tribal officers, and has done so with respect to habeas corpus relief in § 1303 ..."). Furthermore, those tribal officers need not have physical custody of the petitioners. Poodry, 85 F.3d at 899 ("As the ‘custody’ requirement has expanded to encompass more than actual physical custody, so too has the concept of a custodian as a respondent in a habeas case."). "The important thing is ... that the petitioner name as respondent someone (or some institution) who has both an interest in opposing the petition if it lacks merit, and the power to give the petitioner what he seeks if the petition has merit—namely, his unconditional freedom." Id. (quoting Reimnitz v. State's Attorney of Cook Cnty., 761 F.2d 405, 408–09 (7th Cir. 1985) ).

The Tribal Defendants argue that a suit against the Tribal Court and the Tribal Court of Appeals is effectively a suit against the Tribe itself. Therefore, the Tribal Defendants posit that this Court lacks jurisdiction over those two defendants based on the doctrine of sovereign immunity. Nygaard and Stanley counter that the Tribal Court and Tribal Court of Appeals are appropriate parties to this action, arguing that ICRA authorizes suits against tribal officers which includes tribal judges.²⁵

25 Nygaard and Stanley cite Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980) to support their argument that the Tribal Court and Tribal Court of Appeals are appropriate parties in this action. Doc. 48 at 19–20. The Dry Creek Lodge case does not discuss whether tribal courts are appropriate parties in an ICRA action. Rather, it stands for the proposition that sovereign immunity will not shield the tribe from suit when there is no tribal forum available, which is not the case here. Id. at 685 ; see also Krempel v. Prairie Island Indian Cmty., 125 F.3d 621, 622 (8th Cir. 1997) (citing Dry Creek Lodge to support the notion that if there is no functioning tribal court, exhaustion is futile and therefore not required).

The Eighth Circuit has commented that as a general matter, a "tribe's sovereign immunity may extend to tribal agencies, including the Tribal Court." Fort Yates Pub. Sch. Dist. No. 4 v. Murphy ex rel. C.M.B., 786 F.3d 662, 670-71 (8th Cir. 2015) (cleaned up and citation omitted); see also J.L. Ward, 842 F. Supp. 2d at 1171 (collecting cases). Yet some courts have found a tribe's sovereign immunity does not extend to a tribal court in a habeas corpus action brought under § 1303. See Stymiest, 2014 WL 1165925, at *2 (citing Settler v. Yakima Tribal Court, 419 F.2d 486 (9th Cir. 1969) ). In Settler, the Ninth Circuit determined that because the petitioner was not in physical custody, the proper respondents were those that issued the challenged order; that is the tribal court or the individuals acting on behalf of the court. 419 F.2d at 490. But the Ninth Circuit was never called upon to determine whether a tribe's sovereign immunity extends to a tribal court or whether ICRA authorized suit against a tribal court. Further, the Ninth Circuit remanded the case to the district court to name the precise individual who heads the tribal court or all individual members of the tribal court as respondents. Id. at 490-91. Other courts considering the issue have concluded that the tribal court itself is not a proper respondent in a § 1303 habeas action, and instead, individual judges should be named. See Brown on Behalf of Brown v. Rice, 760 F. Supp. 1459, 1464 (D. Kan. 1991) (determining that sovereign immunity extended to the tribal court and council but not the officials acting on those agencies’ behalf); see also Barteaux, 527 F.Supp.3d at 1317 n.3, (finding that even if plaintiff cannot maintain § 1303 action against a tribal judge, the tribal judge is still not protected by sovereign immunity under the Ex parte Young exception (citing Norton v. Ute Indian Tribe of the Uintah & Ouray Rsrv., 862 F.3d 1236, 1251 (10th Cir. 2017) ).

This Court concludes that the Tribal Court and the Tribal Court of Appeals have sovereign immunity and must be dismissed as named defendants in this suit. However, the tribal judicial officers who acted on behalf of those courts do not have sovereign immunity in an ICRA-based suit such as this.

D. Tribal Exhaustion

Out of respect for the tribal court's authority, "a federal court should not entertain a challenge to the jurisdiction of a tribal court until after a petitioner has exhausted its remedies in the tribal court." DeMent, 874 F.2d at 516 (citing Nat'l Farmers Union Ins. Co., 471 U.S. at 856, 105 S.Ct. 2447 ). This "tribal exhaustion doctrine" is prudential rather than jurisdictional. Gaming World Int'l, 317 F.3d at 849. The tribal exhaustion doctrine serves important functions "such as assisting in the orderly administration of justice, providing federal courts with the benefit of tribal expertise, and clarifying the factual and legal issues that are under dispute and relevant for any jurisdictional evaluation." Colombe v. Rosebud Sioux Tribe, 747 F.3d 1020, 1024 (8th Cir. 2014) (citation omitted).

Under the tribal exhaustion doctrine, a petitioner exhausts his tribal remedies only if he has given the tribal courts a "full opportunity" to "evaluate the factual and legal bas[is] for the challenge to its jurisdiction." LaPlante, 480 U.S. at 16, 107 S.Ct. 971 (cleaned up and citation omitted). The tribal court has been given a full opportunity to evaluate its jurisdiction if the tribal court has made an initial decision and that decision has been reviewed by a tribal court of appeals. See id. at 17, 107 S.Ct. 971 ; Colombe, 747 F.3d at 1024. Until there has been appellate review, a federal court should not intervene. LaPlante, 480 U.S. at 17, 107 S.Ct. 971. However, once the tribal court of appeals has upheld the lower court's determination that the tribal courts have jurisdiction, the petitioner may challenge that ruling in federal district court. Id. at 19, 107 S.Ct. 971.

Here, the Tribal Court and the Tribal Court of Appeals have been given a full opportunity to determine whether tribal jurisdiction exists as part of the third appeal. The issues in this case have bounced back and forth between the Tribal Court and the Tribal Court of Appeals for roughly five years in multiple Tribal Court cases, resulting in three appeals to the Tribal Court of Appeals. See Doc. 1-32; Doc. 1-55, Doc. 1-65.

When the issues in this case first reached the Tribal Court of Appeals, there was little for the Tribal Court of Appeals to review. Nygaard and Stanley were not named in and did not receive notice of the initial petition for temporary custody of C.S.N. and T.R.S., and upon learning of the ruling Nygaard appealed with Stanley joining in. Doc. 1-20; Doc. 64-14. The Tribal Court of Appeals reversed because Nygaard and Stanley had not received notice of the petition, nor were they given an opportunity to be heard on the petition.²⁶ Nygaard and Stanley attempted to raise their jurisdictional challenge on appeal, Docs. 1-29, 1-30, 64-14 at 8–21, but the Tribal Court of Appeals understandably remanded the case to the Tribal Court for an "immediate rehearing" in which Nygaard and Stanley would have the "full opportunity to participate." Doc. 1-32 at 1; Doc. 64-14 at 100.

26 Ideally, there would have been one appellate review, not three. Nygaard and Stanley would have been named as defendants in the initial tribal court petition and properly served with notice of the petition. Then in response, Nygaard and Stanley could have filed a motion to dismiss based on lack of subject matter jurisdiction and personal jurisdiction. Nygaard and Stanley could have sought a Tribal Court evidentiary hearing or requested judicial notice by the Tribal Court of matters of public record, such as North Dakota state court orders. Nygaard and Stanley could have appealed the ruling if adverse to them. The Tribal Court of Appeals would have then ruled on the appeal on Tribal Court jurisdiction. Once the Tribal Court of Appeals made its ruling, Nygaard and Stanley would have been free to challenge the Tribal Court's jurisdiction in this Court. See LaPlante, 480 U.S. at 19, 107 S.Ct. 971 ("If the Tribal Appeals Court upholds the lower court's determination that the tribal courts have jurisdiction, petitioner may challenge that ruling in the District Court.").

When this case reached the Tribal Court of Appeals for the second time, the record on appeal was incomplete. When the Tribal Court eventually held a hearing on October 29, 2015, no testimony was taken, and nothing was admitted into evidence. See Doc. 1-55 at 3; Doc. 64-6 at 81. Nygaard and Stanley had filed a lengthy motion to dismiss referencing attachments to include the North Dakota state custody orders, but those attachments were not part of Tribal Court records. Doc. 64-5 at 28–42. 57-70. The Tribal Court denied the motion to dismiss, finding that it had jurisdiction under ICWA. Doc. 1-47. Nygaard and Stanley filed their second appeal with the Tribal Court of Appeals, once again challenging the Tribal Court's jurisdiction. However, the Tribal Court of Appeals wrote, "Inasmuch as the factual findings in this case are exceedingly sparse, almost non existent, the Court decides that given the present state of the record, it cannot rule at this time on the issues concerning the Parental Kidnapping Prevention Act and Indian Child Welfare Act." Doc. 1-55 at 4; Doc. 64-15 at 105. The Tribal Court of Appeals then remanded the case to the Tribal Court, directing the Tribal Court to hold an "immediate hearing" and then "make the necessary written findings of fact and conclusions of law (all duly labelled) to support whatever decision it renders." Doc. 1-55 at 7; Doc. 64-15 at 108.

After these two rounds of appeals produced inconclusive results, Nygaard and Stanley filed a case in the U.S. District Court for the District of North Dakota to challenge the Tribal Court's jurisdiction in federal court. Doc. 1-57. The respondents, many of whom are the same as those named in this action, filed a motion to dismiss, arguing that Nygaard and Stanley had not exhausted their tribal remedies. The District of North Dakota federal court granted the motion to dismiss based on Nygaard and Stanley's failure to exhaust. Doc. 1-59. After all, a petitioner does not exhaust his tribal remedies unless both the tribal court and the tribal court of appeals have had an opportunity to "evaluate the factual and legal bas[is] for the challenge to its jurisdiction." LaPlante, 480 U.S. at 16, 107 S.Ct. 971 (cleaned up and citation omitted) (emphasis added). When such additional factual findings are needed, the appropriate forum is the tribal court, not a federal district court.

After the District of North Dakota dismissed their case without prejudice, Nygaard and Stanley returned to litigating in Tribal Court. This time, after Nygaard and Stanley unquestionably filed the North Dakota custody order, the Tribal Court held an evidentiary hearing on the issues of jurisdiction and comity. Doc. 1-62 at 2; Doc. 64-12 at 185. The parties could and did call witnesses, cross-examined the witnesses against them, and presented evidence and supplemental briefs. Doc. 1-62 at 2; Doc. 64-12 at 86. After that hearing, the Tribal Court issued an order in which it made findings of fact and conclusions of law. Doc. 1-62; Doc. 64-12 at 185–197. The Tribal Court granted Nygaard and Stanley's motion to dismiss, finding that the PKPA deprived the Tribal Court of jurisdiction. Doc. 1-62 at 6–11; Doc. 64-12 at 191; Doc. 64-12 at 191–96. Ducheneaux then appealed, and the appeal centered on Tribal Court jurisdiction. Doc. 64-16 at 2–153. The Tribal Court of Appeals reversed and remanded, overruling its own precedent, holding that the PKPA does not apply to Indian Tribes, and determining that the case "is governed by the law of the Cheyenne River Sioux Tribe both as to matters of jurisdiction and substantive laws." Doc. 1-65 at 20; Doc. 64-16 at 144.

Both the Tribal Court and the Tribal Court of Appeals received an opportunity to "evaluate the factual and legal bas[is] for the challenge to its jurisdiction." LaPlante, 480 U.S. at 16, 107 S.Ct. 971 (cleaned up and citation omitted). Because the Tribal Court of Appeals had a full opportunity to review the Tribal Court's decision as to jurisdiction, Nygaard and Stanley may now challenge that ruling in this Court. See id. at 19, 107 S.Ct. 971 ; DeMent, 874 F.2d at 517 (stating the petitioner needed to "have appealed the tribal court's decision as to jurisdiction to the court of appeals ... before seeking habeas relief in federal court").

The Tribal Defendants argue that still more was required of Nygaard and Stanley to properly exhaust their tribal remedies. In particular, they argue that Nygaard and Stanley should have (1) filed petitions in Tribal Court to domesticate the North Dakota state court custody orders they claimed the Tribal Court must recognize and enforce and (2) filed the petition for writ of habeas corpus in Tribal Court before filing it in this Court. Doc. 43.

As to the first argument, Nygaard and Stanley filed separate requests in Tribal Court to recognize the North Dakota state court custody orders. Doc. 64-3 at 3 (Nygaard's Petition to Enforce Foreign Judgment of Custody and Visitation); Doc. 64-12 (Stanley's pro se Petition to Enforce Foreign Judgment of Custody and Visitation). They provided the Tribal Court with all North Dakota state custody orders, although perhaps only after the second appeal. Doc. 64-12 at 173; Doc. 64-9 at 2–150; Doc. 64-10 at 1–150; Doc. 64-11 at 1–112. Nygaard and Stanley continually challenged the Tribal Court's subject matter jurisdiction and personal jurisdiction. If they are correct that the PKPA governs and makes North Dakota jurisdiction exclusive, there is no need to petition the Tribal Court to grant comity to the North Dakota state court custody orders. Indeed, to do so would be antithetical to their claim that the Tribal Court lacks jurisdiction altogether based on PKPA. Only if this Court were to deny Nygaard and Stanley's petition does it make sense for them to petition the Tribal Court to recognize the North Dakota custody orders under principles of comity. Moreover, back in September of 2016, the Tribal Court of Appeals stated that it was unnecessary for Nygaard and Stanley to file such separate petitions to domesticate each and every North Dakota state court order to seek enforcement of them. See Doc. 1-55 at 7 ("It is further noted that given the already lengthy proceeding in this case—now. approaching almost two years—that resolution of comity issue shall be handled directly on remand without the necessity of a filing a new and independent action."). Nygaard and Stanley on this record did not have to file additional petitions in Tribal Court to exhaust the jurisdictional issue.

As to the Tribal Defendants’ second argument, Nygaard and Stanley were not required to file their habeas corpus action in Tribal Court before filing it in this Court. The Tribal Defendants cite two cases in support of their contention that the habeas petition must first be filed in Tribal Court. The first case is the prior District of North Dakota decision in this case, Nygaard v. Taylor, Case No. 3:16-CV-00393-RRE-ARS, (D.N.D. May 24, 2017), Doc. 1-59. In granting the Tribal Defendants’ motion to dismiss without prejudice, the District of North Dakota wrote:

Citing United States Supreme Court precedent, the Eighth Circuit Court of Appeals, in DeMent held that the habeas corpus action provided by the ICRA must first be brought in tribal court and the federal courts will not hear the matter until tribal court remedies have been exhausted.

Doc. 1-59 at 20. But a close reading of DeMent reveals that the Eighth Circuit never held that a § 1303 habeas corpus action must first be brought in tribal court. DeMent clearly recognizes that challenges to a tribal court's jurisdiction should first be exhausted in tribal court before a federal district court intervenes. 874 F.2d at 516 (citing Nat'l Farmers Union Ins. Co., 471 U.S. at 856, 105 S.Ct. 2447 ). With that principle in mind, the Eighth Circuit then stated that "DeMent should have appealed the tribal court's decision as to jurisdiction to the court of appeals ... before seeking habeas relief in federal court." Id. at 517. Nowhere in DeMent does the Eighth Circuit hold that the petitioner was required to first bring his habeas petition in tribal court. Rather, the petitioner's obligation is to exhaust the claims underlying his habeas petition in the tribal courts.

The second case that the Tribal Defendants rely on is Valenzuela v. Silversmith, 699 F.3d 1199 (10th Cir. 2012). In Valenzuela, an enrolled member of the Tohono O'odham Nation filed a petition for writ of habeas corpus in federal district court, seeking relief from his tribal court convictions and sentence. Id. at 1202. He challenged his tribal court convictions and sentence, raising four assertions: (1) the tribal court violated his right to due process because the tribal court imposed a sentenced above ICRA's statutory maximum; (2) the tribal court violated his right to counsel in failing to appoint him an attorney; (3) the tribal court violated his right to procedural due process when it convicted him; and (4) his incarceration in an off-reservation jail violated both the Constitution and ICRA. Id. at 1204. He raised none of these claims in tribal court, and none of these claims involved a challenge to the tribal court's jurisdiction. Thus, in Valenzuela, the tribal court was never afforded an opportunity to rule on the claims underlying the habeas petition. Here, however, both the Tribal Court and the Tribal Court of Appeals had a full opportunity to rule on the claims underlying Nygaard and Stanley's habeas petition.

It would make very little sense for Nygaard and Stanley to first file a habeas petition in Tribal Court challenging the Tribal Court's jurisdiction when the Tribal Court and the Tribal Court of Appeals have already decided this issue. Section 1303 does not require such a second round of tribal court exhaustion. Thus, Nygaard and Stanley were not required to first file their habeas action in the Tribal Court when the jurisdiction claims in the habeas action already are exhausted through the Tribal Court and the Tribal Court of Appeals proceedings. Colombe, 747 F.3d at 1024. In sum, Nygaard and Stanley have exhausted their tribal remedies.²⁷

27 Nygaard and Stanley also argue that they were not required to exhaust their tribal court remedies because the Tribal Court plainly lacks jurisdiction and requiring tribal exhaustion is futile in this case. It is true that the tribal exhaustion requirement is prudential rather than jurisdictional, so the tribal exhaustion requirement is not an absolute bar on jurisdiction. Gaming World Int'l Ltd., 317 F.3d at 849 : Plains Com. Bank v. Long Fam. Land & Cattle Co., 910 F. Supp. 2d 1188, 1193 (D.S.D. 2012). Indeed, the Eighth Circuit recognizes that tribal exhaustion is not required in any of the following three situations: "(1) an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith; (2) the action is patently violative of express jurisdictional prohibitions; or (3) exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction." Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412, 1420 n.14 (8th Cir. 1996) (citing Nat'l Farmers Union Ins. Co., 471 U.S. at 856 n.21, 105 S.Ct. 2447 ); Heldt v. Payday Fin., LLC, 12 F. Supp. 3d 1170, 1180 (D.S.D. 2014) (citations omitted). However, this Court need not consider whether any of these exceptions apply because Nygaard and Stanley exhausted tribal remedies.

E. Availability of Injunctive or Declaratory Relief

Finally, the Tribal Defendants assert that Nygaard and Stanley's claims for injunctive and declaratory relief must be dismissed because such relief is unavailable under ICRA. In Santa Clara Pueblo, the Supreme Court held that ICRA did not authorize civil actions for injunctive and declaratory relief. 436 U.S. at 59, 72, 98 S.Ct. 1670 ; see also Goodface v. Lower Brule Sioux Tribe 2020 Election Bd., No. 3:20-CV-03014-RAL, 2020 WL 5017352, at *1 (D.S.D. Aug. 25, 2020) (explaining that the only relief available under ICRA is habeas corpus relief). Nygaard and Stanley made no argument for and do not appear to be seeking injunctive or declaratory relief.

Nygaard and Stanley nevertheless can seek a declaratory judgment that the tribal court lacks jurisdiction because that is a federal question under 28 U.S.C. § 1331. "Federal courts may entertain claims for declaratory relief under 28 U.S.C. § 2201, so long as they raise a federal question." Gaming World Int'l. Ltd., 317 F.3d at 847 (citation omitted). Whether the tribal court has jurisdiction is indeed a federal question. Bruce H. Lien Co., 93 F.3d at 1421–22. As such, Nygaard and Stanley may seek a declaratory judgment notwithstanding that declaratory relief is typically unavailable under ICRA.

IV. Conclusion

For the reasons stated herein, it is hereby

ORDERED that the Tribal Defendants’ motion to dismiss, Doc. 42, is denied. It is further

ORDERED that the parties cooperate with the Court to set a status hearing to discuss whether the primary remaining issues in this case—particularly whether the PKPA extends to tribes and in turn if the Tribal Court has jurisdiction over the custody issues—can be submitted on cross-motions for summary judgment and, if so, to set a briefing schedule.