ST. PAUL, Minn. (CN) — A custody dispute over the children of a South Dakota Sioux woman who took them to a reservation brought a test of tribal sovereignty to the Eighth Circuit on Wednesday.
That test involved the federal Parental Kidnapping Prevention Act, enacted in 1980 in an effort to prevent parents from countering adverse custody decisions by fleeing across state lines and seeking a better result from another state’s courts, a practice known as forum shopping. Under the law, custody decrees from a child’s home state are given preference, and other states’ courts can modify them only under a few set conditions.
At issue Wednesday morning was whether that rule applied to tribal courts, along with the fate of the two children of Tricia Taylor, a member of the Cheyenne River Sioux Tribe.
Taylor fled Fargo, North Dakota, with her children in 2014, bringing them to the tribe’s reservation after the younger child’s father, Aarin Nygaard, filed a suit seeking custody of his then-1-year-old daughter. She was arrested by the FBI a few months later in connection with the kidnapping, but the children remained on the reservation in the custody of Taylor’s brother, Ted Taylor Jr. Tricia was later convicted of parental kidnapping,
Both Nygaard and the older child’s father, Terrance Stanley, soon obtained custody of their respective children from North Dakota state courts. Ted Taylor, meanwhile, sought a custody decree from a tribal court, which ultimately awarded custody of both children to Tricia Taylor’s sister, Jessica Ducheneaux.
At the Eighth Circuit, attorneys for Nygaard and Stanley argued to overturn that ruling before a panel of two George W. Bush appointees – U.S. Circuit Judges Steven Colloton and Duane Benton – and a Barack Obama appointee, U.S. Circuit Judge Jane Kelly.
Nygaard’s attorney, Stacy Hegge of the South Dakota firm Gunderson, Palmer, Nelson and Ashmore, argued that while the Parental Kidnapping Prevention Act doesn’t mention tribal reservations, they should be included in its definition of “state,” which includes “a territory or possession of the United States.”
“To conclude otherwise would conflict directly with the act’s stated purpose,” Hegge said.
Pressed by Benton for her “best Supreme Court case,” she cited Oklahoma v. Castro-Huerta, a 2022 decision which counted reservations as part of a state’s “territory” in its finding that Oklahoma had jurisdiction over crimes committed by non-tribe members against tribe members in that state’s Indian Country.
“A general-applicability statute applies to everyone,” she added, “unless you say it doesn’t apply to tribes.”
Steven Gunn, a law professor at Washington University in St. Louis, argued on behalf of the Taylors and tribal authorities.
“We’re not talking about geographic areas,” he said of Hegge’s territories argument. “We’re talking about political entities.”
Benton prodded Gunn with a question about an 1855 decision by the Supreme Court, Mackey v. Coxe. In that ruling, the court found that Cherokee Nation courts were courts of a “territory,” and should thus be recognized as such. Benton noted that while Native American-related policy from that era has largely been cast aside, he wasn’t certain whether Mackey was ever explicitly overturned.
Gunn conceded that point, but noted several aspects of the case had been rewritten, including the idea that tribal sovereignty derives from the constitution rather than from treaties – in this case, the two Fort Laramie treaties of 1851 and 1868.
After the arguments, Stanley and members of the Nygaard family spoke briefly on the case. Rita Nygaard, Aarin Nygaard’s mother, pointed out that the temporary custody granted to Taylor family members had lasted nearly 10 years, with no visitation from the fathers. She said the wrangling over jurisdiction obscured the day-to-day parenting struggles. Tribal police, she said, had refused to enforce orders requiring the Taylors to allow visitation.
“They ain’t got time for this,’” she said. “That’s what they said.”
Stanley, too, was distraught.
“I just want to bring my daughter home safely,” he said. “All that I’ve ever wanted was to be a dad, and that’s been stripped from me.”
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