United States District Court, W.D. Arkansas, Fort Smith Division
ERIN FISHER, et al. PLAINTIFFS
JASON COOK, et al. DEFENDANTS
OPINION AND ORDER
HOLMES, III, U.S. DISTRICT JUDGE.
the Court is Plaintiffs' motion (Doc. 22) for a temporary
restraining order and brief (Doc. 23) in support. Separate
Defendants Assistant Secretary-Indian Affairs Tara Sweeney,
Secretary of the Interior David Bernhardt, and the Bureau of
Indian Affairs (collectively, the “Federal
Defendants”) and the Cherokee Nation have filed
responses (Docs. 26 and 28). Plaintiffs have filed a reply
(Doc. 32) with leave of Court and a motion (Doc. 33) for a
hearing. No. response to the motion for hearing is necessary.
The motions will be denied.
filed this action asking the Court to declare that provisions
of the Indian Child Welfare Act (ICWA) do not apply to
private actions for termination of parental rights and
stepparent adoptions, and additionally that applying ICWA in
such cases is unconstitutional. Plaintiffs earlier filed
petitions in the state courts of Arkansas to terminate
Defendant Jason Cook's parental rights to A.C., Plaintiff
Erin Fisher's minor child, and allow Plaintiff Richard
Fisher to adopt A.C. After the state court determined ICWA
would apply to the action because A.C. and Cook, who is
A.C.'s biological father, are registered members of the
Cherokee Nation, Plaintiffs voluntarily dismissed their
petition and brought this action.
Jason Cook subsequently filed a motion in the state courts of
Arkansas seeking to reinstate his visitation rights with A.C.
Plaintiffs now ask the Court to enter a temporary restraining
order either declaring that ICWA does not require visitation
or alternatively preventing Cook from seeking visitation
until this Court determines the constitutionality of
Court will not issue a preliminary declaration regarding the
applicability of ICWA to visitation proceedings. As the
Federal Defendants point out in their brief in response,
“[s]uch a declaration would be purely advisory.”
(Doc. 28, p. 4). A preliminary injunction or temporary
restraining order must require or restrain acts by people and
may bind only the parties or their “officers, agents,
servants, employees, and attorneys, ” or anyone
“in active concert or participation” with those
people. Fed.R.Civ.P. 65(d). A general preliminary declaration
about what the law is does not specifically bind anyone and
such relief is not appropriate under Rule 65.
Court also will not enjoin Cook from proceeding in state
court with his motion to modify his visitation rights with
A.C. because doing so impermissibly enlarges the exceptions
to the Anti-Injunction Act (AIA). “A court of the
United States may not grant an injunction to stay proceedings
in a State court except as expressly authorized by Act of
Congress, or where necessary in aid of its jurisdiction, or
to protect or effectuate its judgments.” 28 U.S.C.
§ 2283. “[T]hose exceptions, though designed for
important purposes, ‘are narrow and are not to be
enlarged by loose statutory construction.'”
Smith v. Bayer Corp., 564 U.S. 299, 306 (2011)
(quoting Chick Kam Choo v. Exxon Corp., 486 U.S.
140, 146 (1988)).
to Plaintiffs' argument that there are no ongoing state
judicial proceedings, an Arkansas State court has entered a
visitation order (Doc. 22-3) explicitly retaining
jurisdiction to enter further orders, following the current
laws of the State of Arkansas and its longstanding practice.
See Ark. Code Ann. § 9-19-202(a) (“Except
as otherwise provided in § 9-19-204, a court of this
state which has made a child-custody determination . . . has
exclusive, continuing jurisdiction over the determination . .
. .”); Ark. Code Ann. § 9-2-102(2) (including
visitation decrees and orders within the definition of
“child-custody determination”); Robbins v.
Robbins, 328 S.W.2d 498, 500 (Ark. 1959) (“As in
all child custody cases, the trial court retains jurisdiction
to make any change in visitation rights which future
circumstances might dictate.”). Cook has filed a
petition (Doc. 32-1) in that case to resume visitation with
A.C., and based on Erin Fisher's affidavits (Docs. 22-1,
32-1) regarding the harm she believes a change to visitation
would inflict on A.C., she is likely to contest Cook's
petition if this Court does not enjoin the proceedings.
Regardless of the parties' hypothetical potential to
amicably settle that dispute, there is no question that it
will involve “litigation” or “legal
controversies” and is exactly the type of judicial
proceeding that this Court may not enjoin, absent an AIA
exception. See Roudebush v. Hartke, 405 U.S. 15,
20-21 (1972) (distinguishing judicial proceedings from a
state court's more administrative or pro forma duties).
exception is present here. Plaintiffs have not identified an
express Congressional authorization for an injunction;
whatever jurisdiction lies in this Court will not be divested
by any activity in state visitation proceedings; and no
judgment has yet been entered in this case. The Court cannot
enjoin Cook's state court visitation proceedings.
argument in their reply brief that a preliminary injunction
from this Court need not stop state court proceedings to
enforce visitation but only enjoin any actual visitation
allowed by those proceedings is unworthy of substantial
analysis at this time, except to say that Cook currently does
not have any visitation rights with A.C. (Doc. 32-1, p. 1).
Until an order from some other court allows such visitation
to occur, then regardless of whether the other factors to be
considered might weigh in favor of injunction, any harm from
visitation is entirely too speculative for the threat of
irreparable harm to outweigh those factors.
THEREFORE ORDERED that Plaintiffs' motions (Docs. 22, 33)
 Because Cook is appearing in this
action and has been served with the motion, under Federal
Rule of Civil Procedure 65 the Court considers whether a
preliminary inunction, rather than a ...