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Federal judge rules parental kidnapping act does not apply to tribes

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A federal judge in South Dakota ruled on May 11 the Parental Kidnapping Prevention Act (PKPA) does not apply to Native American tribes following a child custody case that spanned over eight years.

PKPA requires states to honor other state’s legitimate custody rulings.

In 1980, the PKPA established national standards to determine jurisdiction in interstate custody disputes. It requires states to enforce, in most cases, custody rulings made in other states, according to the Cornell Law School Legal Information Institute. The United States code defines states as, “a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.”

The case in question started in North Dakota before ending up in a federal South Dakota district court. In 2014, Tricia Taylor took her two children out of North Dakota and brought them to the Cheyenne River Reservation in South Dakota, violating North Dakota state court custody orders, court documents show.

At the time, the children were around the ages of one and seven, although court documents do not provide specific birthdays. Aarin Nygaard, the younger child’s father, already had joint custody of the children with Taylor, which she violated by bringing the children out of state without notifying Nygaard and refusing to bring them back despite court orders to do so.

The other child’s father, Terrance Stanley, did not have a court ordered custody agreement with the mother before the child was moved, but a North Dakota state court granted him custody. The court ultimately granted both fathers "permanent residential responsibility," a ruling the Cheyenne River tribal court has not yet recognized.

Taylor was with her children on the reservation from August 2014 until the Federal Bureau of Investigation arrested her on the reservation for a misdemeanor bad check charge. At that time, she had parental kidnapping charges levied against her in Cass County, North Dakota. She agreed to not fight extradition in exchange for the government dropping the check charge.

Even though the children were no longer with Taylor because she was detained, they did not go back to their fathers.

“At the time of Tricia’s arrest, (the South Dakota Department of Social Services) DSS placed (the children) with Tricia’s brother,” South Dakota Chief Judge Roberto Lange wrote in his ruling on the case. “DSS made this placement without contacting either Hygaard or Stanley.”

Tribal court granted custody of the children to Taylor’s brother and sister and later to just Taylor’s sister, all without notifying the fathers, Lange stated.

Nygaard and Stanley attempted to gain custody of their children through tribal court avenues, but were met with opposition ranging from the court delaying hearings to the Cheyenne River Sioux Tribal Council overturning a previous ruling that held the PKPA did apply to tribes.

In September 2021, the South Dakota Federal District Court agreed to hear two issues in the case: whether PKPA applied and whether the fathers could sue DSS for placing the children with Taylor’s relatives after her arrest.

Lange’s opinion referenced mixed court opinions on whether the act applies to tribes. Some courts ruled that it does because of the argument that reservations fall under the definition of territory, but others have ruled that it does not apply because tribes are never mentioned in the PKPA.

Seemingly with some reluctance, Lange chose to rule that the PKPA does not apply based on what Congress did not include in the act — tribal land.

“This Court likewise is heartsick that the ambiguity and split of authority over interpretation of the PKPA has contributed to the prolonged litigation in various courts over custody of (the two children). Nonetheless, this Court is bound to interpret and apply the PKPA as it is written, not as how it might or arguably should have been written,” Lange wrote. “Congress can amend the PKPA if it wishes to extend it to Indian tribes.”

He said the fathers could seek enforcement of the North Dakota state custody orders from the Cheyenne River Sioux Tribal Court, but “it might be futile at this point.”

For similar cases in the future, Kyle Krause, a Rapid City family lawyer, said the ruling only technically applies to the case at hand, but that it could be used as a reference to argue why PKPA doesn’t apply in custody cases involving reservations.

“It becomes one more case in the line of cases that was already cited, that has weighed in on the topic,” Krause said.

He said the federal court decision means reservations are “lawless havens” for parental kidnapping.

“I think it really demonstrates a bigger problem that exists of you can literally kidnap kids and run to the reservation and hide there in violation of very obviously legitimate state court orders," Krause said. "North Dakota very obviously had jurisdiction. In my opinion, that tribal council and tribal court basically facilitated the eight year kidnapping of kids."

— Contact Shalom Baer Gee at sgee@rapidcityjournal.com — 

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