Aarin Nygaard Petitioner - Appellant Terrance Stanley v. Tricia Taylor

United States Court of Appeals
For the Eighth Circuit
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No. 22-2277
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Aarin Nygaard
Petitioner - Appellant
Terrance Stanley
Petitioner
v.
Tricia Taylor; Ted Taylor, Jr.; Jessica Ducheneaux; Ed Ducheneaux; Cheyenne
River Sioux Tribal Court; Brenda D. Claymore, in her official capacity as Chief
Judge, Cheyenne River Sioux Tribal Court of Appeals
Respondents - Appellees
Frank Pommersheim, in his official capacity as Chief Justice
Respondent
The South Dakota Department of Social Services; Todd Waldo, in his official
capacity as social worker; Jenny Farlee, in her official capacity as social worker;
Cheyenne River Sioux Tribal Court of Appeals; Franklin Ducheneaux, Acting
Chief Justice of Cheyenne River Sioux Tribal Court of Appeals in his official
capacity
Respondents - Appellees
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Appeal from United States District Court
for the District of South Dakota - Central
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Submitted: February 15, 2023
Filed: August 15, 2023
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Before COLLOTON, BENTON, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Aarin Nygaard filed a petition for a writ of habeas corpus in the District of
South Dakota challenging the Cheyenne River Sioux Tribal Court’s exercise of
jurisdiction in a custody matter involving his minor daughter, C.S.N. Nygaard
claimed that the Tribal Court’s refusal to recognize and enforce North Dakota state-
court orders awarding him custody of C.S.N. violated the Parental Kidnapping
Prevention Act (PKPA), 28 U.S.C. § 1738A. The district court1 granted summary
judgment to the Tribal Court after concluding that the PKPA does not apply to Indian
tribes. Nygaard appeals, and we affirm.
I.
This appeal follows more than nine years of overlapping litigation in state,
federal, and tribal courts. The district court deftly summarized that extensive
procedural history in its order granting summary judgment to the Tribal Court
respondents.2 See Nygaard v. Taylor, 602 F. Supp. 3d 1172, 1174–84 (D.S.D. 2022).
Here, we recount only those facts that are most relevant to this appeal.
1 The Honorable Roberto A. Lange, Chief Judge, United States District Court
for the District of South Dakota.
2 Among the respondents Nygaard named in the underlying habeas action were
the following tribal entities and representatives: the Cheyenne River Sioux Tribal
Court; the Cheyenne River Sioux Tribal Court of Appeals; the Chief Judge of the
Tribal Court, in her official capacity; and the Chief Justice of the Tribal Court of
Appeals, in his official capacity. The first two were dismissed from the case on

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A.
C.S.N. is the daughter of Nygaard and Tricia Taylor. Taylor and C.S.N. are
both enrolled members of the Cheyenne River Sioux Tribe, and Nygaard is non-
Indian. C.S.N. was born in 2013 in Fargo, North Dakota, where Nygaard and Taylor
resided at the time. In March 2014, Nygaard sought “primary residential
responsibility” of C.S.N. in North Dakota state court, which Taylor opposed.
Following mediation, the state court entered an interim order in July 2014 providing,
among other things, that Nygaard and Taylor would equally share decision-making
and residential responsibility for C.S.N. during the pendency of custody
proceedings. The interim order also required each parent to notify the other of his
or her “intent to travel out of state” with C.S.N. “at least 24 hours in advance.”
On August 28, 2014, however, Taylor took C.S.N. to the Cheyenne River
Indian Reservation in South Dakota without court approval and without notifying
Nygaard.3 Nygaard promptly sought relief from the North Dakota court overseeing
C.S.N.’s custody proceedings, and that court issued an ex parte order on
September 12 granting Nygaard temporary custody of C.S.N. and directing Taylor
to “immediately return” the child to North Dakota. On October 3, the same court
found Taylor in contempt for having “abscond[ed]” with C.S.N. to South Dakota
and ordered that a warrant be issued for Taylor’s arrest if she failed to “turn over”
C.S.N. to Nygaard within five days. Taylor did not comply with that order, and a
bench warrant for her arrest was issued on October 20. A state prosecutor also
sovereign immunity grounds. For brevity, we collectively refer to the remaining
tribal respondents as “the Tribal Court” or “the Tribal Court respondents.”
3 Taylor also brought along her then-seven-year-old daughter, T.R.S. T.R.S.’s
non-Indian father, Terrance Stanley, sought custody of T.R.S. in North Dakota state
court beginning in July 2014, and those proceedings paralleled Nygaard’s pursuit of
custody of C.S.N. Indeed, Nygaard and Stanley were the named petitioners in the
habeas action that gave rise to this appeal. But only Nygaard appeals the district
court’s grant of summary judgment to the Tribal Court respondents.

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charged Taylor with parental kidnapping, see N.D. Cent. Code § 12.1-18-05, and an
arrest warrant for that charge was issued as well.
Taylor was arrested by the FBI on November 26, 2014, at the home of her
brother, Ted Taylor, Jr., on the Cheyenne River Indian Reservation. On the day of
Taylor’s arrest, social workers with the South Dakota Department of Social Services
(DSS) placed C.S.N. in the custody of Ted Taylor, Jr. without contacting Nygaard.
Taylor was transported back to North Dakota, where she remained in detention until
she pleaded guilty to parental kidnapping and was sentenced to a two-year term of
imprisonment.4
Taylor, Jr. subsequently filed a petition in the Cheyenne River Sioux Tribal
Court asking that C.S.N. be placed in the temporary custody of her maternal aunt,
Jessica Ducheneaux. The Tribal Court held a hearing on January 12, 2015. And in
an order issued the next day, the Tribal Court determined that it had “personal and
subject matter jurisdiction” over C.S.N.’s custody case under tribal law and awarded
custody of C.S.N. to Ducheneaux “until further orders of the court.” Nygaard did
not receive notice of the January 12 hearing, and he did not learn of the Tribal
Court’s temporary custody order until several weeks after it was issued.
Nygaard appealed the January 13, 2015, temporary custody order to the Tribal
Court of Appeals, and that appeal was followed by several years of remands, further
appeals, and additional proceedings in tribal court.5 As relevant here, Nygaard
4 Taylor was sentenced in April 2015 to five years of imprisonment with three
years suspended. She was released on parole in November 2015 but was
immediately rearrested and placed in custody for being in contempt of several orders
issued by the North Dakota court overseeing C.S.N.’s state-court custody
proceedings. Taylor challenged her contempt-related detention multiple times over
the ensuing months, and she remained in custody until the North Dakota Supreme
Court ordered her release in September 2017.
5 Nygaard also sought relief in federal court during this timeframe. He filed a
petition for a writ of habeas corpus in the District of North Dakota in

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argued that the Tribal Court custody proceedings should be dismissed for lack of
jurisdiction. He contended in pertinent part that the first-in-time North Dakota court
orders awarding him temporary custody of C.S.N.—which were superseded in
September 2015 by a state-court judgment awarding him permanent custody—were
“entitled to full faith and credit and enforcement by” the Tribal Court pursuant to the
PKPA, see 28 U.S.C. § 1738A(a). The Tribal Court ultimately agreed, concluding
in an April 2018 order that the Cheyenne River Sioux Tribe was bound by the PKPA
under tribal law, and that the Tribal Court was therefore obligated under the statute
to recognize and enforce the North Dakota custody orders. Accordingly, the Tribal
Court dismissed C.S.N.’s custody proceedings for lack of jurisdiction.
Ducheneaux appealed the Tribal Court’s dismissal order, and the Tribal Court
of Appeals reversed on February 25, 2019. The Tribal Court of Appeals held in
relevant part that the PKPA does not apply to Indian tribes as a general matter. It
also held that the PKPA does not apply to the Cheyenne River Sioux Tribe as a
matter of tribal law, meaning that the statute did not mandate that the Tribal Court
enforce the North Dakota court orders awarding custody of C.S.N. to Nygaard. The
Tribal Court of Appeals ordered that C.S.N.’s custody case be “resolved” in the
Tribal Court “according to the requirements of Cheyenne River Sioux Tribal law,”
and that an “immediate hearing” be held on remand to determine whether the award
of temporary custody of C.S.N. to Ducheneaux “continue[d]” to be in C.S.N.’s “best
interests.”6
November 2016, which the Tribal Court respondents moved to dismiss for lack of
jurisdiction. The district court granted that motion in May 2017 after concluding
that Nygaard had failed to exhaust his tribal court remedies.
6 The Tribal Court custody proceedings have since been stayed pending
resolution of the present federal habeas matter.

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B.
Nygaard filed a petition for a writ of habeas corpus in the District of South
Dakota in August 2019, followed by an “Amended Petition” in July 2020. See 25
U.S.C. § 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.”). Nygaard sought a writ of habeas corpus “to remedy” C.S.N.’s
“unlawful detention” on the Cheyenne River Indian Reservation and asked the
district court “to immediately return” C.S.N. to him pursuant to the North Dakota
court orders awarding him custody. As relevant here, Nygaard alleged that the Tribal
Court’s “assertion of jurisdiction” over C.S.N.’s custody case and its “refusal to
give . . . full faith and credit” to the North Dakota custody orders amounted to a
“clear violation” of the PKPA. The Tribal Court respondents moved to dismiss
Nygaard’s petition for lack of jurisdiction and for failure to exhaust tribal remedies,
which the district court denied.
The parties then filed cross-motions for summary judgment on the
“strictly . . . legal issue” of whether the PKPA applies to Indian tribes. On May 11,
2022, the district court granted summary judgment to the Tribal Court.7 Following
a thorough review of the PKPA’s text, similar statutes, and relevant cases from
federal, state, and tribal courts, the district court concluded that the PKPA does not
extend to Indian tribes and dismissed Nygaard’s habeas petition. Nygaard now
appeals.
II.
The question raised in this appeal is a matter of first impression in our circuit:
whether the PKPA applies to Indian tribes. The district court determined that it does
not, and we review that legal conclusion de novo. See Am. Growers Ins. Co. v. Fed.
7 The district court also dismissed as respondents the South Dakota DSS and
the two DSS social workers who placed C.S.N. with her uncle following Taylor’s
November 2014 arrest. Nygaard does not challenge that decision on appeal.

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Crop Ins. Corp., 532 F.3d 797, 803 (8th Cir. 2008) (“We review questions of
statutory interpretation de novo.”); see also Green v. Byrd, 972 F.3d 997, 1000 (8th
Cir. 2020) (“We review de novo a district court’s ruling on cross motions for
summary judgment.”).
The PKPA was enacted in 1980 to “facilitate the enforcement” of child
custody orders across state lines and to “deter interstate abductions . . . of children
undertaken” by parents “to obtain” a more favorable custody determination in
another jurisdiction. Parental Kidnapping Prevention Act of 1980, Pub. L.
No. 96-611, § 7(c), 94 Stat. 3566, 3569. The statute provides in relevant part that
“[t]he appropriate authorities of every State shall enforce according to its
terms . . . any custody determination . . . made consistently with the provisions of
[the Act] by a court of another State.” 28 U.S.C. § 1738A(a). The PKPA, in short,
“extend[s] full faith and credit requirements to child custody orders,” Thompson v.
Thompson, 484 U.S. 174, 187 (1988), and thus “imposes a duty on states to enforce
a valid child custody determination entered by a sister state,” DeMent v. Oglala
Sioux Tribal Ct., 874 F.2d 510, 513 n.3 (8th Cir. 1989).
A child custody order is “consistent with,” and therefore enforceable under,
the PKPA if (1) the issuing state court “has jurisdiction” over the subject custody
proceedings under state law and (2) one of five enumerated conditions is met. 28
U.S.C. § 1738A(c). The relevant condition in this case is that the “child’s home is
or recently has been in the State.” Thompson, 484 U.S. at 177; see 28 U.S.C.
§ 1738A(c)(2)(A). Once a state court enters a custody determination “consistently
with” the PKPA, that state’s jurisdiction over the subject custody proceedings
“continues as long as . . . such State remains the residence of the child” or of any
person, “including a parent or grandparent, who claims a right to custody” of the
child. 28 U.S.C. § 1738A(b)(2), (d). That means, in turn, that “no other State may
exercise concurrent jurisdiction over the custody dispute, even if it would have been
empowered to take jurisdiction in the first instance.” Thompson, 484 U.S. at 177
(citation omitted); see 28 U.S.C. § 1738A(g). And “all States must accord full faith
and credit to” any “ensuing custody decree” issued by the “first State[].” Thompson,

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484 U.S. at 177; see DeMent, 874 F.2d at 513 n.3 (“Once a state exercises
jurisdiction over a custody dispute, no other state may exercise concurrent
jurisdiction and all states must accord full faith and credit to a sister state’s custody
decree.”).
The parties do not dispute that if Nygaard were seeking to enforce the North
Dakota court orders awarding him custody of C.S.N. in another state, that state’s
courts would be obligated under the PKPA to afford the orders full faith and credit.
There is also no dispute that, as a general matter, the Cheyenne River Sioux Tribal
Court has the authority to make custody determinations involving minors like C.S.N.
who are enrolled members of the Tribe.8 See Ysleta Del Sur Pueblo v. Texas, 142
S. Ct. 1929, 1934 (2022) (“Native American Tribes possess inherent sovereign
authority over their members and territories.” (cleaned up)); United States v. Cooley,
141 S. Ct. 1638, 1642 (2021) (“Indian tribes may . . . regulate domestic affairs
among tribal members . . . .”). We must determine, then, whether the PKPA requires
the Tribal Court to recognize and enforce the first-in-time North Dakota custody
orders to the same extent it requires state courts to do so, see 28 U.S.C. § 1738A(a),
or whether, as the district court explained below, the Tribal Court may instead
“exercise independent jurisdiction to reach a different result than what the North
Dakota state court has ruled.”
We agree with the district court that the PKPA does not apply to Indian tribes.
We start with the statute’s text. The PKPA provides that “[t]he appropriate
authorities of every State shall enforce” valid custody determinations made “by a
court of another State.” 28 U.S.C. § 1738A(a) (emphasis added). “State” is defined
8 The Cheyenne River Sioux Tribe’s constitution provides that the Tribal Court
“shall [be] establish[ed] . . . for the adjudication of claims or disputes arising among
or affecting the . . . Tribe.” Under the Tribe’s Children’s Code, moreover, the Tribal
Court has personal jurisdiction “over any child who is a member” of the Tribe “no
matter where domiciled, residing or found,” as well as “exclusive original
jurisdiction” over proceedings “[t]o determine custody of, or to appoint a custodian
or guardian for[,] a child.”

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in turn to “mean[] a State of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, or a territory or possession of the United States.”
Id. § 1738A(b)(8). Absent from this list are Indian tribes. This is significant because
“[s]pecific Indian rights”—including the Cheyenne River Sioux Tribe’s inherent
sovereign authority to determine custody of its minor members, see Cooley, 141 S.
Ct. at 1642—“will not be deemed to have been abrogated or limited” by a federal
statute “absent a ‘clear and plain’ congressional intent.” Scalia v. Red Lake Nation
Fisheries, Inc., 982 F.3d 533, 535 (8th Cir. 2020) (quoting EEOC v. Fond du Lac
Heavy Equip. & Constr. Co., 986 F.2d 246, 248 (8th Cir. 1993)); see Michigan v.
Bay Mills Indian Cmty., 572 U.S. 782, 790 (2014) (recognizing the “enduring
principle of Indian law” that “courts will not lightly assume that Congress in fact
intends to undermine Indian self-government”).
Nygaard nonetheless argues that the PKPA’s definition of “State” “plainly
includes” Indian tribes. He does not contend that tribes are “State[s] of the United
States,” 28 U.S.C. § 1738A(b)(8). He instead suggests that tribes are encompassed
by the PKPA’s reference to “a territory . . . of the United States,” id., because they
are “located within” the United States’ “geographic boundaries.”
It is true that Indian reservations are “physically within the territory of the
United States.” United States v. Wheeler, 435 U.S. 313, 322 (1978) (emphasis
added). The PKPA’s definition of “State,” however, includes “a territory . . . of the
United States,” 28 U.S.C. § 1738A(b)(8) (emphasis added), which is most naturally
understood to mean a political entity that is not a state but is still “[a] part of the
United States . . . with a separate legislature (such as Guam and the U.S. Virgin
Islands).” Territory, Black’s Law Dictionary (11th ed. 2019); see, e.g., 48 U.S.C.
§ 1541(a) (“The Virgin Islands . . . are declared an unincorporated territory of the
United States of America.”). And the Supreme Court has made clear that within our
constitutional order, such “territories” are distinct from Indian tribes. For instance,
the Court has explained that “a territorial government is entirely the creation of
Congress” and thus acts “not . . . as an independent political community like a State,
but as ‘an agency of the federal government.’” Wheeler, 435 U.S. at 321 (quoting

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Domenech v. Nat’l City Bank, 294 U.S. 199, 204–05 (1935)); see id. (“Territory and
Nation[] are not two separate sovereigns to whom the citizen owes separate
allegiance in any meaningful sense, but one alone.”); see also Puerto Rico v. Sanchez
Valle, 579 U.S. 59, 72 (2016) (“U.S. territories . . . are not sovereigns distinct from
the United States.”). Indian tribes, in contrast, “remain ‘a separate people, with the
power of regulating their internal and social relations,’” and when tribes exercise
this power of self-governance, they do so “as part of [their] retained sovereignty and
not as an arm of the Federal Government.” Wheeler, 435 U.S. at 322, 328 (quoting
United States v. Kagama, 118 U.S. 375, 381–82 (1886)). Unlike territories,
moreover, tribes possess “historic sovereign authority” that predates the
Constitution. Bay Mills Indian Cmty., 572 U.S. at 788.
Our conclusion that the PKPA does not apply to Indian tribes is further
supported by the fact that when Congress intends for tribes to be subject to statutory
full-faith-and-credit requirements, it expressly says so. The Indian Child Welfare
Act (ICWA), for example—which was enacted two years before the PKPA—
provides that “[t]he United States, every State, every territory or possession of the
United States, and every Indian tribe” shall extend full faith and credit to “the public
acts, records, and judicial proceedings of any Indian tribe applicable to Indian child
custody proceedings.” 25 U.S.C. § 1911(d) (emphasis added). The Full Faith and
Credit for Child Support Orders Act of 1994 similarly provides that “[t]he
appropriate authorities of each State . . . shall enforce . . . a child support order”
issued “by a court of another State” and defines “State” to “mean[] a State of the
United States, the District of Columbia, the Commonwealth of Puerto Rico, the
territories and possessions of the United States, and Indian country.” 28 U.S.C.
§ 1738B(a), (b)(9) (emphasis added). And the Violence Against Women Act of
1994 states that “[a]ny protection order issued . . . by the court of one State, Indian
tribe, or territory . . . shall be accorded full faith and credit by the court of another
State, Indian tribe, or territory.” 18 U.S.C. § 2265(a) (emphasis added).
Congress “clearly underst[ands] how to” subject Indian tribes to full-faith-
and-credit provisions “when it wishe[s] to do so.” Ysleta Del Sur Pueblo, 142 S. Ct.

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at 1940–41. That the PKPA makes no mention of tribes is a strong indication that
the statute does not apply to them. See Wilson v. Marchington, 127 F.3d 805, 809
(9th Cir. 1997) (observing that “if Congress had specifically intended to include
Indian tribes under the umbrella of 28 U.S.C. § 1738,” the statute implementing the
Constitution’s Full Faith and Credit Clause, “it could have easily done so . . . by
specifically referencing them”); see also id. (“Further, the separate listing of
territories, possessions and Indian tribes in [ICWA] provides an indication that
Congress did not view these terms as synonymous.”).
Nygaard notes that the PKPA “was enacted by Congress to prevent the very
situation” he now faces—namely, one where the other parent kidnaps a child and
“abscond[s] to a new jurisdiction” to avoid an unfavorable custody determination.
And he suggests that excluding Indian tribes from the PKPA’s ambit would
undermine the statute’s core purpose. “It is not our place,” however, “to question
whether Congress adopted the wisest or most workable policy.” Ysleta Del Sur
Pueblo, 142 S. Ct. at 1943. We must instead take the PKPA as it is written. See Bay
Mills Indian Cmty., 572 U.S. at 794 (“This Court has no roving license, in even
ordinary cases of statutory interpretation, to disregard clear language simply on the
view that . . . Congress ‘must have intended’ something broader.”). And any
concerns about the statute’s reach should be addressed to, and must ultimately be
resolved by, Congress. See Wilson, 127 F.3d at 809 (“Certainly, there are policy
reasons which could support an extension of full faith and credit to Indian tribes.
Those decisions, however, are within the province of Congress . . . .”).
For the reasons explained above, we conclude that the PKPA does not apply
to Indian tribes. As a result, the Cheyenne River Sioux Tribal Court is not obligated
under that statute to enforce the North Dakota court orders awarding custody of
C.S.N. to Nygaard. The district court properly granted summary judgment to the
Tribal Court.

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III.
We affirm the judgment of the district court.
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