This filing is part of the ICWA class action case in South Dakota over the interpretation of 25 USC 1922 (emergency jurisdiction):
The third reason why this Court’s ruling on § 1922 has been inoperative is because the State’s Attorney for Pennington County, Defendant Mark Vargo, and the person Mr. Vargo has assigned to handle abuse and neglect cases in Pennington County, Deputy State’s Attorney Roxanne Erickson, see Erickson Dep. at 5-7, is failing to properly employ the federal standard. Indeed, Mr. Vargo’s interpretation of § 1922 threatens to forever prevent Plaintiffs from obtaining the benefit of this Court’s ruling on § 1922.6 The instant motion for partial summary judgment seeks to remove this final obstacle to the implementation of § 1922 in Defendants’ 48-hour hearings.
Plaintiffs deposed Ms. Erickson on May 25, 2016. Ms. Erickson testified that she interprets the word “harm” in § 1922’s standard “physical damage or harm” as including emotional harm. Id. at 131 made that ‘harm’ would also include emotional harm to the child. . . . [T]hat is how I would read it, that you have to show some form of harm which could include emotional harm.”). Thus, Defendant Vargo continues to use the state standard rather than the federal standard, given that Ms. Erickson interprets the federal standard to authorize DSS to consider emotional harm in determining whether to seek continued custody of an Indian child at the 48-hour hearing.
Motion for Partial Summary Judgment
Affidavit in Support of Motion