Indian Law Bulletins  |  State Courts  |  Archives July-September 2004

September

J & M Aircraft Mobile T Hangars, Inc. v. Johnson County Airport Authority
269 Ga.App. 800, Docket No. A04A1646
Court of Appeals of Georgia, Sept. 30, 2004

Subjects: Treaty of New Echota (1835); Law -- Georgia; Cherokee Nation -- Members -- Georgia; Tribal courts -- Indian Country (Georgia); Courts -- North Carolina; Debtor and creditor.

*Synopsis: Judgment creditor filed the North Carolina default judgment for enforcement in Georgia. The State Court, Carroll County, ordered enforcement of the consent order providing for joint and several liability of judgment debtor and its principal and former officer under the default judgment. Principal and former officer appealed.

*Holding: The Court of Appeals, Eldridge, J. held that:
(1) by Treaty of New Echota of 1835 members of the Cherokee nation who remained in Georgia were made subject to Georgia state law;
(2) principal and former officer who were non-reservation Indians allegedly living on traditional tribal territory were not entitled to have action removed to Tribal Court of Georgia Tribe of the Eastern Cherokee; and
(3) consent order providing for termination of the stay it granted upon vacation of the stay by North Carolina court was enforceable when North Carolina court vacated the stay. Affirmed.

State of New Mexico v. Barnham
136 N.M. 579, Docket No. 24,309
Court of Appeals of New Mexico, September 30, 2004.

Subjects: Form of contract; United States. Bureau of Indian Affairs -- Officials and employees; New Mexico -- Officials and employees; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico -- Officials and employees; Police patrol -- State supervision -- On Indian reservations -- Mescalero Apache Tribe of the Mescalero Reservation, New Mexico.

*Synopsis: Defendant filed motion to suppress evidence, which the District Court, Otero County, Jerry H. Ritter Jr., D.J., granted. State appealed.

*Holding: The Court of Appeals, Wechsler, C.J., held that:
(1) federal statute governing Indian law enforcement responsibilities did not authorize verbal agreement that allegedly existed between Bureau of Indian Affairs (BIA) officer, who also served as chief of police of Indian tribe, and state and county police, for state and county police officers to patrol highways on Indian reservation;
(2) Mutual Aid Act did not authorize such verbal agreement; and
(3) traffic stop of defendant for speeding while he was driving within boundaries of Indian reservation was not justified, as officer lacked authority to enforce Indian tribal traffic ordinances.
Affirmed.

Diepenbrock v. Merkel
33 Kan.App.2d 97, Docket No. 90,708
Court of Appeals of Kansas, Sept. 24, 2004

Subjects: Harrah's Kansas Casino Corp; Prairie Band of Potawatomi Indians, Kansas; Jurisdiction -- Prairie Band of Potawatomi Indians, Kansas; Wrongful death -- Kansas; Myocardial infarction.

*Synopsis: Personal representative of casino patron's estate brought wrongful death action against casino personnel and ambulance for allegedly negligent emergency treatment rendered when patient had heart attack. The Douglas District Court, Jack A. Murphy, J., granted defendants' motion to dismiss for lack of subject matter jurisdiction, and personal representative appealed.

*Holding: The Court of Appeals, Green, P.J., held that tribal court had exclusive subject matter jurisdiction over claim arising from events occurring on tribal property. Affirmed.

Nielson v. Brocksmith
323 Mont. 98, 99 P.3d 181, Docket No. 03-660
Supreme Court of Montana, Sept. 21, 2004

Subjects: Jurisdiction -- Montana; Jurisdiction -- Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana -- Members; Brocksmith Land and Livestock (Mont.); Due process of law; Frivolous suits (Civil procedure); Dealers (Retail trade).

*Synopsis: Enrolled Indian tribe member brought action against closely-held company and its directors, alleging various claims based upon or arising out of alleged buy-sell agreements. Company and directors brought motion to dismiss for lack of jurisdiction, as they had filed complaint in tribal court. Seventeenth Judicial District Court, Valley County, John C. McKeon, J., conditionally granted the directors' motion to dismiss. Enrolled member appealed. The Supreme Court, 321 Mont. 37, 88 P.3d 1269, affirmed. While appeal was pending, plaintiff filed second complaint to enforce settlement allegedly reached during mandatory mediation on appeal. Seventeenth Judicial District Court, Valley County, John C. McKeon, J., dismissed complaint on grounds it lacked jurisdiction while appeal was pending. Enrolled member appealed.

*Holding: The Supreme Court, John Warner, J., held that:
(1) trial court lacked jurisdiction to consider complaint;
(2) lack of jurisdiction did not deprive plaintiff of a remedy in violation of her due process rights; and
(3) defendants were not entitled to sanctions for frivolous appeal.
Affirmed.

Fresno County Department of Children and Family Services v. Superior Court
122 Cal.App.4th 626, 19 Cal.Rptr.3d 155
, Docket No. F045698
Court of Appeal, Fifth District, California, Sept. 21, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Fresno County (Calif.). Dept. of Children and Family Services; Cold Springs Rancheria of Mono Indians of California.

*Synopsis: In dependency proceeding in which termination of parental rights was not disputed, Indian tribe, joined by county department of children and family services and children's mother, petitioned juvenile court to place two young half-siblings, one of whom was Indian child within meaning of Indian Child Welfare Act (ICWA), with an Indian family, but children's attorney objected. The Superior Court, Fresno County, No. 03CEJ30030, Martin C. Suits, Commissioner, denied petition, finding that there was good cause to disregard ICWA preference for substantial evidence supported finding of good cause to disregard ICWA preference for Indian family placement of these two children; and (4) juvenile court did not exceed its authority by ordering department to explain any subsequent change in placement with Indian family, and ordered department to explain to court any subsequent change in children's current placement. Department filed petition for extraordinary writ.

*Holding: The Court of Appeal, Vartabedian, Acting P.J., held that:
(1) ICWA did not restrict juvenile court, in making good cause determination, to considerations contained in federal guidelines and state rule of court;
(2) good cause finding under ICWA was subject to substantial evidence standard of appellate review;
(3) substantial evidence supported finding of good cause to disregard ICWA preference for placement of these two children; and
(4) juvenile court did not exceed its authority by ordering department to explain any subsequent change in placement.
Petition denied.

In re Christopher W
19 Cal.Rptr.3d 296, Docket No. E035622
Court of Appeal, Fourth District, Division 2, California, Sep. 15, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Adoption.

*Synopsis: Order terminating parents' parental rights to their one-year-old son was entered in the Superior Court, Riverside County, No. RIJ102896, Robert W. Nagby, Temporary Judge. Parents appealed.

*Holding: The Court of Appeal, Richli, J., held that:
(1) notice under the Indian Child Welfare Act (ICWA) was not required, and
(2) "parental relationship" exception to adoption as permanent plan did not apply. Affirmed.

In re Merrick V. et al.
122 Cal.App.4th 235, Docket No. D043261
Court of Appeal, Fourth District, Division 1, California, Sep 13 , 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Grandparents.

*Synopsis: Twin brothers and their half-brother were declared dependent children, in the Superior Court of San Diego County, No. J514824A-C, Susan D. Huguenor, J., because of neglect. Maternal grandmother appealed.

*Holding: The Court of Appeal, Aaron, J., held that:
(1) whether Indian Child Welfare Act (ICWA) applied could not be determined in absence of social service agency's submission of proof of ICWA notices;
(2) grandmother was entitled to challenge by appeal juvenile court's order terminating her guardianships;
(3) grandmother was not entitled to reunification services;
(4) Probate Code guardianships could be terminated before reunification services were offered;
(5) substantial evidence supported orders terminating grandmother's guardianships;
(6) grandmother failed to show ineffective assistance of counsel; and
(7) grandmother was not entitled to de facto parent status.
Affirmed in part, dismissed in part, reversed in part, and remanded with directions.

In re A.R.
690 N.W.2d 699, Docket No. 04-0745
Court of Appeals of Iowa, September 9, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.

*Synopsis: (from the opinion) Dorothy, the mother of Anthony, born May 29, 1992, and Jesus, born September 6, 1993, filed a petition on appeal contending (1) the State failed to provide active efforts to prevent the break up of her Native American family, (2) the juvenile court should not have terminated her parental rights to the two children, (3) the State did not prove the grounds for termination beyond a reasonable doubt, and (4) the State failed to prove beyond a reasonable doubt that her parental rights should be terminated under Iowa Code sections 232.116(1)(d), (e), and (f) (2003). We ordered full briefing by the appellant and the State on the issue of active efforts.

*Holding:not available

Horn v. Lewis Equipment Co., LLC
37 Conn. L. Rptr. 783, Docket No. X04CV030104509S
Superior Court of Connecticut, Judicial District of Middlesex, Sep. 3, 2004

Subjects: Wrongful death -- Connecticut; Sovereignty -- Mohegan Indian Tribe of Connecticut; Liability for industrial accidents; Mohegan Sun Hotel (Conn.); M.V. Farinola, Inc.; Corporations, Foreign; Building inspectors.

*Synopsis: (from the opinion) The main case concerns the operation and maintenance of a personnel and materials hoist at the Mohegan Sun Hotel, from which the plaintiff's decedent, John Horn, fell to his death. The apportionment defendant Farinola inspected the hoist prior to the fall. In the apportionment complaint, Lewis alleges that if the hoist was unsafe, Farinola may be liable to it for Farinola's failure to inspect the hoist adequately...
For purposes of this case and because the Mohegan Tribe's sovereignty is not implicated, the court concludes that Connecticut may exercise jurisdiction. The court finds that the Mohegan Sun Hotel is located within the boundaries of the State of Connecticut and denies the motion to dismiss.

*Holding: not available

Fragoza v. Clark
2004 WL 2222374 Docket No. 567985
Superior Court of Connecticut, Judicial District of New London, Sept. 2, 2004

Subjects: Traffic accidents -- On Indian reservations -- Mashantucket Pequot Tribe of Connecticut; Employees -- Defined; Mashantucket Pequot Gaming Enterprise -- Officials and employees; Auto Rental Corp. (Conn.) -- Officials and employees; Sovereign immunity; Jurisdiction -- Connecticut.

*Synopsis: (from the opinion) Before the court is the defendants' motion to dismiss on the ground that the plaintiff's cause of action is barred by the doctrine of sovereign immunity...
The motion to dismiss speaks solely to the question of whether the complaint, as it is written, has been filed in the proper court. Since the complaint purports to state a claim against parties that are not employed by nor officials of the Gaming Enterprise, jurisdiction in the Superior Court is proper. Until the complaint is amended to reflect the correct employment affiliation and relationships between and among the relevant parties to this action, this court must retain jurisdiction of this case. Accordingly, the motion to dismiss is denied.

*Holding: not available

August

The Mattaponi Indian Tribe v. Commonwealth of Virgnia, Dept. of Env. Quality
601 S.E.2d 667, Docket Nos. 2338-03-1, 2469-03-1
Court of Appeals of Virginia, Aug 31 , 2004

Subjects: Virginia. State Water Control Board; Environmental permits; Water; Reservoirs -- Newport News (Va.); Mattaponi Indian Tribe, Virginia; Virginia. Dept. of Environmental Quality; Standing to sue; Virginia Administrative Procedure Act; Sovereign immunity -- Virginia; Jurisdiction.

*Synopsis: Environmental conservation organizations and two landowners appealed from decision of State Water Control Board (SWCB) to grant a water protection permit (WPP) to city for reservoir project. The Circuit Court, City of Newport News, Robert W. Curran, J., dismissed appeal for lack of standing. Organizations and landowners appealed. The Court of Appeals, affirmed. Organizations and landowners appealed. In separate action, Indian tribe appealed from SWCB's issuance of WPP to city. The Circuit Court, City of Newport News, Robert W. Curran, J., sustained Commonwealth and city's demurrers. Tribe appealed. The Court of Appeals, affirmed, and tribe appealed. On consolidated appeals, the Supreme Court, reversed. On remand, the Circuit Court affirmed SWCB's permit decision under Virginia Administrative Procedure Act (VAPA) and dismissed non-VAPA treaty claim. Tribe and organizations appealed.

*Holding: The Court of Appeals, D. Arthur Kelsey, J., held that:
(1) Commonwealth's sovereign immunity was waived;
(2) SWCB lacked jurisdiction over freestanding treaty claim;
(3) Supreme Court had exclusive jurisdiction over judgment of the trial court in its non-VAPA jurisdiction; and
(4) substantial evidence supported issuance of permit for construction of reservoir. Affirmed in part and transferred in part.

In re Marriage of Jacobsen
18 Cal.Rptr.3d 162, Docket No. B161615
Court of Appeal, Second District, Division 6, California, Aug 26 , 2004

Subjects: Alimony; Tribal members; Jurisdiction -- California.

*Synopsis: Husband filed motion seeking temporary spousal support from wife, who was a member of an Indian tribe. The Superior Court, Santa Barbara County, No. 1008103, James B. Jennings, J., ordered that wife pay husband monthly temporary spousal support. Wife appealed, and husband cross-appealed.

*Holding: The Court of Appeal, Gilbert, P.J., held that family law court had jurisdiction to order member of Indian tribe to pay temporary spousal support to nonmember. Affirmed.

Guardianship of J.C.D.
686 N.W.2d 647, Docket No. 22998
Supreme Court of South Dakota, August 25, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- South Dakota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Jurisdiction -- Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota.

*Synopsis: Paternal grandparents petitioned for permanent guardianship of grandchild, and mother filed a motion to transfer jurisdiction to tribal court. The Circuit Court of the First Judicial Circuit, Clay County, Arthur L. Rusch, J., denied the motion. Mother appealed.

*Holding: The Supreme Court, Konenkamp, J., held that:
(1) the Indian Child Welfare Act (ICWA) applied to proceeding in which paternal grandparents sought permanent guardianship of grandchild, and
(2) good cause did not exist to prevent transfer of paternal grandparent's petition for permanent guardianship of Indian grandchild to tribal court.
Reversed.

In the matter of adoption of Baby Boy C.
686 N.W.2d 647, Docket No. A-5913/04
Family Court, New York County, New York, August 24, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- New York; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Adoption; Jurisdiction -- Tohono O'odham Nation of Arizona; Tohono O'odham Nation of Arizona -- Membership; Tribal members -- Tohono O'odham Nation of Arizona.

*Synopsis: Indian tribe filed motion to intervene in adoption proceeding involving child, whose biological mother was member of tribe and who was placed with non-Indian adoptive parents. Adoptive parents moved to have tribe's counsel disqualified.

*Holding: The Family Court, New York County, Mary E. Bednar, J., held that:
(1) existing Indian Family (EIF) doctrine is necessary to uphold constitutionality of Indian Child Welfare Act (ICWA), and
(2) information adoptive parent provided to tribe's counsel did not warrant disqualification of counsel.
Ordered accordingly.

In re S.R., R.R., and G.R. Jr.
97 P.3d 559Docket No. 03-758
Supreme Court of Montana, Aug. 24, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- Montana; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.

*Synopsis: Father's parental rights to Indian children were terminated by Thirteenth Judicial District Court, County of Yellowstone, G. Todd Baugh, P.J., and father appealed.

*Holding: The Supreme Court, W. William Leaphart, J., held that termination of father's parental rights was in best interests of children. Affirmed.

In re Child of E.M.D.
2004 WL 1728610, Docket No. A04-157
Court of Appeals of Minnesota, Aug. 3, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- Minnesota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Foster home care.

*Synopsis: (from the opinion) E.M.D. appeals from an order adjudicating her son a child in need of protection or services (CHIPS). E.M.D. argues that the CHIPS adjudication must be reversed because (1) the petition sought long-term foster care rather than a CHIPS adjudication, and relief may not be based on issues that are neither pleaded nor litigated; (2) the county failed to provide her with a written out-of-home-placement plan, in violation of Minn.Stat. § 260C.212, subd. 1(a) (2002); (3) the evidence does not support a CHIPS adjudication; (4) the county violated the requirements of the Indian Child Welfare Act (ICWA) by failing to make active efforts to provide her services and programs to prevent the breakup of the family; and (5) the court erred in concluding that the tribal social worker qualified as an expert for ICWA purposes. By notice of review, respondent Grand Portage Band of Chippewa challenges the denial of the petition for long-term foster care, claiming that the law requires permanency in this case because the total out-of-home-placement time exceeds the maximum permitted before the matter reaches permanency. We affirm the CHIPS adjudication and the denial of the petition for long-term foster care, but we reverse the portion of the district court's order placing C.L.D. in foster care for an indeterminate period of time pending a disposition hearing, and remand for a permanency determination consistent with Minn.Stat. § 260C.201, subd. 11(d) (2002).

*Holding: not available

Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe
2004 WL 3153206, Docket No. 03CA0517
Arapahoe County District Court, Colorado, August 12, 2004

Subjects: Debtor and creditor; Contracts; Breach of Contract; Jurisdiction -- Colorado; Sovereign immunity -- Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah; Rush Creek Solutions (Colo.); Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah.

*Synopsis: Provider of computer services sued Indian tribe for breach of contract, unjust enrichment, and promissory estoppel. Tribe moved to dismiss the complaint, challenging subject matter jurisdiction based on sovereign immunity. The District Court, Arapahoe County, No. 02CV2720, John P. Leopold, J., denied the motion to dismiss the complaint. Tribe appealed.

*Holding: The Court of Appeals, Casebolt, J., held that tribe's Chief Financial Office (CFO) had apparent authority to sign contract with provider and waive sovereign immunity.
Affirmed and remanded.

July

Taxpayers of Michigan Against Casinos v. State
471 Mich. 306, 685 N.W.2d 221, Docket No. 122830
Supreme Court of Michigan, July 30, 2004

Subjects: Intergovernmental agreements; Governors -- Michigan -- Rights and responsibilities; Indian gaming -- Michigan; Gambling on Indian reservations -- Michigan; Michigan. Constitution (1963); Exclusive and concurrent legislative powers -- Michigan; Michigan. Legislature; Tribes -- Michigan.

*Synopsis: Taxpayers filed petition against the State alleging that the submission of compacts between the Governor and Indian tribes authorizing the tribes to operate casinos on reservations through joint resolution process instead of legislative process violated provisions of the state Constitution. The Ingham Circuit Court, Peter D. Houk, J., determined that legislative approval, by resolution, of the compacts violated certain provisions of the Michigan Constitution. The State appealed. The Court of Appeals, 254 Mich.App. 23, 657 N.W.2d 503, affirmed in part and reversed in part. Taxpayers sought leave to appeal.

*Holding: The Supreme Court, Corrigan, C.J., held that:
(1) Legislature's approval of compacts did not constitute "legislation";
(2) concurrent resolution was an appropriate method for Legislature to approve compacts; and
(3) resolution did not violate "local acts" provision of Michigan Constitution. Affirmed in part and remanded in part.


In the interest of D.M., R.M. III, and T.B.C

685 N.W.2d 768, Docket No. 23060
Supreme Court of South Dakota, July 28, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- South Dakota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Jurisdiction -- Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota.

*Synopsis: Termination of parental rights proceedings were initiated for Native American children. Native American tribe moved to intervene and to transfer jurisdiction to tribal court. The Circuit Court, Seventh Judicial Circuit, Fall River County, Thomas L. Trimble J., denied transfer and terminated parental rights. On parents' appeal, the Supreme Court, 661 N.W.2d 768, 2003 SD 49, initially affirmed, but on rehearing, 665 N.W.2d 83, 2003 SD 49, remanded to circuit court for limited purpose of hearing on tribe's motion to transfer. On remand, the Circuit Court, Seventh Judicial District, Fall River County, Thomas L. Trimble, J., denied tribe's motion to transfer proceedings to tribal court. Parents appealed

*Holding: The Supreme Court, Sabers, J., held that: good cause existed to deny transfer of proceeding to tribal court. Affirmed.

In the interest of D.H. a minor child M.H
688 N.W.2d 491, Docket No. 4-359 / 04-0743
Court of Appeals of Iowa, July 28, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Process.

*Synopsis: Petition was filed to terminate father's parental rights to child. The District Court, Polk County, Odell G. McGhee, II, J., terminated parental rights. Father appealed.

*Holding: The Court of Appeals, Vaitheswaran, J., held that:
(1) trial court was not required to determine whether child was an "Indian child," for the purpose of the Iowa Indian Child Welfare Act;
(2) the record supported finding that father was properly served with the petition for termination of parental rights; and
(3) termination of father's parental rights to child was in the best interest of child. Affirmed.

In re Elizabeth W.
120 Cal.App.4th 900, Docket No. B172202
Court of Appeal, Second District, Division 1, California, July 21, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.

*Synopsis: Minor was found to be adoptable, and the Superior Court, Los Angeles County, No. LK030022, Irwin H. Garfinkel, Temporary Judge, terminated parental rights of both parents. Father appealed.

*Holding: The Court of Appeal, Vogel, J., held that:
(1) county agency failed to comply with notice requirements of Indian Child Welfare Act (ICWA), and
(2) conditional reversal of final order was required.
Affirmed in part, conditionally reversed in part, and remanded with directions.

Dontigney v. Conneticut Bureau of Indian Affairs
2004 WL 1673835, Docket No. CV030830534S
Superior Court of Connecticut, June 30, 2004

Subjects: Tribes -- Connecticut; Tribal membership -- Indian Country (Conn.); Mohegan Indians; Connecticut Indian Affairs Council; Connecticut; Jurisdiction -- Connecticut.

*Synopsis: (from the opinion) RULING ON MOTIONS TO DISMISS
The pro se plaintiff, Jeffrey "Stepstrong" Dontigney, alleges that he is a native American, more particularly Mohegan, and in his complaint he seeks the vindication of claimed rights. As explained at oral argument, quite articulately, Mr. Dontigney claims that he has been denied membership in his tribe and seeks monetary and equitable relief including the ability to participate as a member of the Connecticut Indian Affairs Council. The defendants are the council, several Connecticut officials including the governor, and representatives of four Connecticut tribes. The defendants have moved to dismiss the complaints for several reasons; it is fair to say that the fundamental claim is that this court simply has no authority to decide disputes regarding membership in tribes...At oral argument, Mr. Dontigney made a plea for recognition. This is understandable. The reality, however, is that this court cannot offer the relief sought, and each of the motions to dismiss is therefore granted for lack of subject matter jurisdiction.

*Holding: not available

Johnson v. Wright
682 N.W.2d 671, Docket No. A03-1511
Court of Appeals of Minnesota, July 13, 2004

Subjects: Jurisdiction -- Minnesota; Promissory notes; Contracts.

*Synopsis: Lender sued borrower to enforce promissory note and assignment agreements, under which lender financed borrower's legal actions in exchange for a percentage of proceeds if actions were successful. The District Court, Dakota County, Martha M. Simonett, J., granted summary judgment in favor of lender, and borrower appealed.

*Holding: The Court of Appeals, Forsberg, J., serving by appointment, held that:
(1) note was a valid agreement between parties;
(2) assignment agreements were champertous and void as against public policy; and
(3) state court had jurisdiction over issue of validity of assignment of portion of proceeds paid to borrower's daughter after enrollment as a member of Indian tribe. Affirmed in part and reversed in part.

In the Interest of D.C.
32 Kan.App.2d 962, Docket No. 91419
Court of Appeals of Kansas, July 9, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- Kansas; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Adoption; Uncles; Aunts.

*Synopsis: Child's aunt and uncle, who lived in Arizona and sought to adopt child, challenged decision of the Department of Social and Rehabilitative Services and its contracting agency to place the child with her foster parents for adoption. After a full evidentiary hearing, the Labette District Court, Daniel L. Brewster, J., ruled that the Department and contracting agency had not used reasonable efforts in placing child and ordered placement of child with the aunt and uncle. Department and foster parents appealed.

*Holding: The Court of Appeals, Rulon, C.J., held that:
(1) District Court had statutory authority to review the adoptive placement decision and determine whether Department and agency had made "reasonable efforts";
(2) term "reasonable efforts" meant more than the efficiency of finding suitable adoptive placement;
(3) Department and agency failed to exercise reasonable efforts in making adoptive placement decision; and
(4) District Court improperly discounted the emotional bond between child and her foster parents when making placement decision.

In re Miguel E.
120 Cal.App.4th 521, Docket Nos. D042403, D042787, D043040
Court of Appeal, Fourth District, Division 1, California, July 8, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Grandparents.

*Synopsis: On supplemental dependency petition by county health and services agency, the Superior Court, San Diego County, No. EJ1991A-C, Gary Bubis, Referee, entered order removing three minors from their grandmother. One minor, mother, and grandparents appealed, and one minor filed petition for writ of habeas corpus.

*Holding: The Court of Appeal, Huffman, J., held that:
(1) minor's appeal from order was timely;
(2) grandparents had no standing to appeal;
(3) county agency's rescission of its approval of placement in grandparents' residence was not substantial evidence that placement was ineffective in protecting children; and
(4) juvenile court failed to comply with notice requirement of the Indian Child Welfare Act (ICWA).
Petition denied, grandparents' appeal dismissed, and orders reversed and matter remanded with directions.

Dalton v. Pataki
11 A.D.3d 62, 780 N.Y.S.2d 47, Docket No. 91419
Supreme Court, Appellate Division, Third Department, New York, July 7, 2004

Subjects: Intergovernmental agreements; Governors -- New York -- Rights and responsibilities; Indian gaming -- New York; Gambling on Indian reservations -- New York; Separation of powers -- New York; New York. Constitution; Video lottery terminals.

*Synopsis: In consolidated actions by group of citizen taxpayers, two state legislators, nonprofit organizations and unincorporated association opposed to spread of gambling, seeking judgment declaring certain provisions of law governing gaming to be unconstitutional, the Supreme Court, Albany County, Teresi, J., granted summary judgment in favor of governor dismissing complaints. Plaintiffs appealed

*Holding: The Supreme Court, Appellate Division, Mercure, J., held that:
(1) provision which authorized governor to enter compact with tribes for casino gaming on Indian lands was proper;
(2) video lottery terminals (VLT), which provision directed Division of Lottery to license and implement at pari-mutuel racetracks, fell within exception to general ban on gambling;
(3) provision regarding VLT vendor fees violated constitutional requirement that net proceeds of state-run lottery be applied to education; and
(4) provision authorizing Division to participate in multi-state lottery did not violate constitutional requirement that lotteries be operated by the state.
Affirmed as modified.

Willman v. Washington Utilities and Transportation Commission
122 Wash.App. 194, 93 P.3d 909, Docket No. 22411-2-III
Court of Appeals Washington, Div. III, July 1, 2004

Subjects:Washington Utilities and Transportation Commission; Confederated Tribes and Bands of the Yakama Indian Nation of the Yakima Reservation, Washington; Municipal franchises -- On Indian reservations; Fees, Administrative; Public utilities -- Washington.

*Synopsis: Non-Indian living on fee land within Indian reservation and citizens' group petitioned for declaratory and injunctive relief, challenging decision of Utilities and Transportation Commission (UTC) allowing utilities which were operating on reservation to pass on cost of "franchise fee" exacted by Tribal Council to all ratepayers within the reservation, including non-Indians. The Superior Court, Yakima County, granted utilities' motions for summary judgment. Non-Indian and group appealed.

*Holding: The Court of Appeals, Kato, C.J., held that UTC determination was not arbitrary and capricious.
Affirmed.

Minnesota v. Mannypenny
682 N.W.2d 143, Docket No. CX-02-855
Supreme Court of Minnesota, July 1, 2004

Subjects: Evidence (Law); Assault and battery; Peace officers; Intergovernmental agreements -- Becker County (Minn.); Intergovernmental agreements; White Earth Band of Chippewa Indians; Exclusive jurisdiction; Criminal jurisdiction.

*Synopsis: Defendant was convicted in the District Court, Becker County, William E. Walker, J., of fourth-degree assault of a tribal peace officer on tribal land, obstructing legal process, and disorderly conduct. Defendant appealed. The Court of Appeals affirmed, 662 N.W.2d 183. Defendant appealed.

*Holding: The Supreme Court, Blatz, C.J., held that:
(1) cooperative agreement between county and Indian tribe for regulation of law enforcement services on reservation property, which was entered pursuant to statute, was not preempted by federal Public Law 280, which granted State criminal jurisdiction over all Indian country in the state with the exception of the Red Lake Reservation, and
(2) State did not unlawfully retrocede its jurisdiction under Public Law 280.
Affirmed.

 

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