Howe v. Ellenbecker

• Decision Date: 11 August 1992
• Docket Number: Civ. No. 90-3007.
• Citation: 796 F. Supp. 1276
• Parties: Velda HOWE, Theresa Taken Alive, on behalf of themselves, their children and all others similarly situated, Plaintiffs, v. James ELLENBECKER, in his capacity as Secretary of the South Dakota Department of Social Services, Terry Walter, in his capacity as Program Administrator, South Dakota Office of Child Support Enforcement, and Louis Sullivan, in his capacity as Secretary of the United States Department of Health and Human Services, Defendants.
• Court: U.S. District Court — District of South Dakota

796 F. Supp. 1276

Velda HOWE, Theresa Taken Alive, on behalf of themselves, their children and all others similarly situated, Plaintiffs, v. James ELLENBECKER, in his capacity as Secretary of the South Dakota Department of Social Services, Terry Walter, in his capacity as Program Administrator, South Dakota Office of Child Support Enforcement, and Louis Sullivan, in his capacity as Secretary of the United States Department of Health and Human Services, Defendants.

Civ. No. 90-3007.

United States District Court, D. South Dakota, C.D.

August 11, 1992.

Krista Clark, Dakota Plains Legal Services, Mission, S.D. and B.J. Jones, Dakota Plains Legal Services, Fort Yates, N.D. for plaintiffs.

Mark L. Bratt, Asst. Atty. Gen. and David L. Braun, Sp. Asst. Atty. Gen., Office of Legal Services/Dept. of Social Services, Pierre, S.D., for James Ellenbecker.

David L. Zuercher, Asst. U.S. Atty., Pierre, S.D. and Lucille Meis, Office of Chief Counsel, Health and Human Services, Denver, Colo., for federal defendant.

MEMORANDUM ORDER

DONALD J. PORTER, Senior District Judge.

The federal defendant in the abovecaptioned case has filed a Motion for Reconsideration and Request for Stay Pending Reconsideration. Federal defendant strongly opposes this Court's order filed March 27, 1992, in which the Department of Health and Human Services (HHS) was ordered to negotiate directly with the nine tribes located in South Dakota and to propose to them the possibility of implementing a Tribal Plan that would provide for child support enforcement services on the reservation. This Court had concluded that because the federal statute and regulations refer only to State Plans, neither Congress nor HHS considered the possibility of a semi-sovereign Indian nation existing within the boundaries of a state. The Department of Health and Human Services is the entity that ultimately must approve or disapprove a state's plan based on its degree of compliance with federal law. Because of this role, as well as the State's apparent unsuccessful attempts to provide services to plaintiffs, this Court found that the most efficient and effective approach was to order direct negotiation between the tribes and HHS. Federal defendant asserts that the Court's approach is contrary to law. Specifically, Federal defendant argues that the statute and regulations refer specifically to State Plans, that Congress intended the Title IV-D program to be implemented as a "coherent whole" within the state, and that Congress authorized payment of federal monies only to states, not to tribes.

Federal defendant also expresses concern about tribal sovereignty. A Tribal Plan, federal defendant asserts, would have to comply with each and every requirement of Title IV-D and would therefore infringe upon the tribe's right of self-government. State defendants have, on several occasions during the course of this litigation, expressed similar concerns. The State has asserted that neither the State nor this Court can force the tribes to enter agreements or change their tribal laws.

The Court shares these concerns about tribal sovereignty and both recognizes and respects the independent, semi-sovereign status of the nine Indian tribes located within the State of South Dakota. As a result, the March 27, 1992, memorandum order was addressed to the federal defendant, not to the Indian tribes themselves. At no time has the Court suggested it has the authority or the jurisdiction to order a tribe to enter a cooperative agreement or to modify its tribal laws. The inability of this Court to order specific action on the part of the tribes does not, however, leave plaintiffs without avenues for relief. Any order issued from the Court in this case is simply addressed to the parties before it, not to the tribes or tribal officials who lie outside the Court's jurisdiction.

Federal defendant strongly objects to negotiating with the tribes in the manner proposed by the Court's order filed March 27, 1992, on the basis that to do so would be contrary to law. Federal defendant asserts instead that cooperative agreements between the state and the tribal entities are contemplated by § 454(7) of the Social Security Act, 42 U.S.C. § 654(7), and 45 C.F.R. § 303.107 (1990). See Federal defendant's Response to Brief of Plaintiffs (Requesting Additional Relief) at 2. The Court appreciates the attempt to seek a solution within the language of the statute itself. The Court finds, however, that just as Tribal Plans were not specifically contemplated by Congress when enacting the statute or by the agency when promulgating the regulations, neither were such state-tribal agreements. The statute and accompanying regulations anticipate cooperative agreements between a state and its own state courts, courts in which state law would necessarily be followed.¹ The statute and regulations simply do not take into account the possibility that these services might be provided in courts, such as tribal courts located within the State of South Dakota, that are not answerable to state law.

Federal defendant also argues vehemently that Congress authorized funding only for states, not for tribes. The initial requirements regarding the necessary laws that must be passed in order to receive funding are the burden of the state, the entity receiving the funding. Federal defendant suggests that as a result of the limited funding authorization, a tribal entity may be party only to a cooperative agreement and not to its own Tribal Plan. As a result, however, the tribe, to which no federal money flows directly and which has no Plan of its own, should not be required to change its tribal laws. A tribal entity, as a party to a cooperative agreement and thus acting more like a state court than the state itself for the purposes of Title IV-D, would need only recognize those federal mandates that apply to the services covered by its particular cooperative agreement.

Finally, Federal defendant objects to the Court's Tribal Plan proposal on the grounds that the semi-sovereign, independent status of the Indian tribes, in part, prevents the implementation of any Tribal Plan as proposed by this Court. Federal defendant contends that under the Court's proposed scheme the tribes would be required to comply with all the federal requirements already mandated of the states rather than simply "picking and choosing" among the several Title IV-D program services applicable to its own particularized cooperative agreement with the state.

The Court notes that State defendants initially took a very different position regarding the requirements a tribe would have to meet before obtaining Title IV-D services. This earlier position was the focus of significant dispute among the parties:

As has been emphasized by the State and Federal Defendants throughout this litigation, before any child support enforcement services can be provided as requested by Plaintiffs herein, the various Indian tribes must meet any and all requirements of Title IV-D of the Social Security Act, as the State Defendants have been required to do. In other words, before the State Defendants can avail themselves to the benefits of Title IV-D, including the federal funding as requested by Plaintiffs herein, the State Defendants were, and still are, required to comply with all Title IV-D mandates and requirements. It is the State Defendants' position herein that the tribes must be required to do likewise.

State defendants' letter filed November 14, 1991, in response to Court order filed November 4, 1991 (emphasis original). Nevertheless, the Court finds that the distinction Federal defendant currently makes regarding the requirements a tribal entity must meet provides a sufficient justification for negotiating state-tribal cooperative agreements rather than Tribal Plans in the effort to grant plaintiffs relief. According to the applicable law, the services provided pursuant to cooperative arrangements or agreements must conform with Title IV-D requirements. See 45 C.F.R. § 304.22; Howe v. Ellenbecker, 774 F.Supp. 1224, 1233 (D.S.D.1991). Federal defendant has stated it is prepared to provide federal funding for "cooperative arrangements with tribal...