Indian Law Bulletins  |  State Courts  |  Archives January - March 2004

March

In the Interest of K.B. and K.A.
682 N.W.2d 81, Docket No. 3-693 / 03-0530
Court of Appeals, Iowa, March 24, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Tribal members; Non-members of a tribe; Non-Indians; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Jurisdiction -- Sac & Fox Tribe of the Mississippi in Iowa.

*Synopsis: After termination of parental rights of Indian mother and non- Indian father as to first child, and during pendency of State's petition to terminate parental rights as to parents' second child, Indian tribe filed motion to intervene in both termination cases. The District Court, Marshall County, Victor G. Lathrop, Associate Juvenile Judge, denied motion. Indian Tribe appealed.

*Holding: The Court of Appeals, Zimmer, J., held that: (1) when Indian tribe has statutory right of intervention under Indian Child Welfare Act (ICWA), state-law doctrines of estoppel may not be applied to deprive it of that right, and (2) tribe failed to establish that children were eligible for tribal membership as would support determination that children were Indian children under ICWA.

Bonnette v. Tunica-Biloxi Indians
873 So.2d 1, Docket Nos. 02-919, 02-920, 02-921.
Court of Appeal of Louisiana, Third Circuit, March 24, 2004

Subjects: Paragon Casino Resort; Indian business enterprises -- Tunica-Biloxi Indian Tribe of Louisiana; Sovereign immunity -- Tunica-Biloxi Indian Tribe of Louisiana; Molds (Fungi); Tunica-Biloxi Construction Company; Hotels -- Design and construction.

*Synopsis: Employees of child care facility within tribe's casino resort, employees of casino, and parents of children at facility brought personal injury action against tribe, and various entities involved in construction of resort, arising from alleged injuries resulting from exposure to toxic mold. The Twelfth Judicial District Court, Parish of Avoyelles, No.2002-2905, William Bennett, J., granted motion to consolidate, granted tribe's exception to subject matter jurisdiction, and granted remaining defendants' exceptions of failure to join an indispensible party. Plaintiffs appealed.

*Holding: On grant of rehearing, the Court of Appeal, Michael G. Sullivan, J., held that:
(1) tribe did not waive sovereign immunity to suit by a third party in state court; (2) remaining defendants were joint and divisible obligors in suit; (3) tribe was an indispensible party, and thus, dismissal against remaining defendants was not error; and (4) plaintiffs failed to demonstrate how consolidation would have prejudiced their rights or prevented a fair trial. Affirmed.

Michael Minnis & Associates, P.C. v. Kaw Nation
90 P.3d 1009, Docket No. 99,565
Court of Civil Appeals of Oklahoma, Div. No. 3, March 19, 2004

Subjects: Kaw Nation, Oklahoma; Lawyers -- Fees; Sovereign immunity -- Kaw Nation, Oklahoma.

*Synopsis: Law firm brought action against indian tribe to collect attorney fees for acting as tribe's general counsel. The District Court, Oklahoma County, Carolyn R. Ricks, J., dismissed action. Law firm appealed.

*Holding: The Court of Civil Appeals, Larry Joplin, C.J., held that tribe had sovereign immunity from suit in state court. Affirmed.

Dontigney v. Brown
842 A.2d. 597, Docket No. 23629
Appellate Court of Connecticut, March 16, 2004

Subjects: Jurisdiction -- Connecticut; Tribal members -- Defined; Tribal membership -- Mohegan Indian Tribe of Connecticut; Sovereign immunity -- Mohegan Indian Tribe of Connecticut.

*Synopsis: Alleged member of Indian tribe brought action against tribe members, asserting that alleged member was in fact a member of tribe. The Superior Court, Judicial District of New Haven, Blue, J., granted defendant's motion to dismiss. Alleged member appealed.

*Holding: The Appellate Court, DiPentima, J., held that: (1) alleged member's failure to comply with statute governing tribal membership disputes resulted in trial court lacking subject-matter jurisdiction, and (2) alleged member's claims against tribe for damages were barred by doctrine of sovereign immunity. Affirmed.

In re Christopher Lashea Golightly Jr. Minor
2004 WL 515553, Docket No. 248304.
Court of Appeals, Michigan, March 16, 2004.

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

*Synopsis: Respondent-appellant appeals as of right from the circuit court order terminating his parental rights to the minor child. The circuit court did not clearly err in determining that at least one statutory ground for termination was established by clear and convincing evidence. The condition leading to adjudication was the parents' lack of a satisfactory explanation for the severe brain damage, blindness and other injuries the child suffered when severely shaken by an unknown perpetrator, which resulted in permanent, severe medical conditions that require round-the-clock monitoring. The condition to be rectified was not the child's injury, which would never be remedied, but respondent-appellant's inability to properly care for a child with such extreme medical needs and deficits, who requires constant monitoring.

*Holding: not available

Dontigney v. Brown
82 Conn.App. 11, Docket No. 23629
Appellate Court of Connecticut, March 16, 2004

Subjects: Mohegan Indian Tribe of Connecticut -- Membership; Tribal members -- Mohegan Indian Tribe of Connecticut; Jurisdiction; Sovereign immunity -- Mohegan Indian Tribe of Connecticut.

*Synopsis: Alleged member of Indian tribe brought action against tribe members, asserting that alleged member was in fact a member of tribe. The Superior Court, Judicial District of New Haven, Blue, J., granted defendant's motion to dismiss. Alleged member appealed.

*Holding: The Appellate Court, DiPentima, J., held that: (1) alleged member's failure to comply with statute governing tribal membership disputes resulted in trial court lacking subject-matter jurisdiction, and (2) alleged member's claims against tribe for damages were barred by doctrine of sovereign immunity. Affirmed.

Native Village of Eklutna v. Alaska Railroad Corp.
87 P.3d 41, Docket No. S-10270, S-10279
Supreme Court of Alaska, March 12, 2004

Subjects: Alaska Railroad Corporation; Eklutna Native Village; Sacred sites -- Anchorage (Alaska); Sand and gravel plants -- Licenses; Anchorage (Alaska).

*Synopsis: Native village sought to enjoin state railroad's quarry operation on culturally significant land, and municipality intervened as plaintiff, with both plaintiffs objecting that railroad had failed to obtain conditional use permit in violation of municipal zoning ordinance. The Superior Court, Third Judicial District, Anchorage, Mark Rindner, J., denied injunction and entered judgment in favor of railroad. Native village appealed and municipality cross-appealed.

*Holding: The Supreme Court, Fabe, C.J., held that:
(1) state legislature did not clearly express intent to exempt state railroad from local zoning laws;
(2) as matter of first impression, "balancing of interests" test was proper test for determining whether legislature intended such exemption;
(3) balancing test would not be applied until railroad made good faith effort to comply with local regulations; and
(4) Interstate Commerce Commission Termination Act (ICCTA) did not preempt such local regulations.
Reversed and remanded.

Hill v. Eppolito
5 A.D.3d 854
Supreme Court, Appellate Div., Third Department, New York, March 4, 2004

Subjects: Oneida Nation of New York -- Members; Harassment -- On or near Indian reservations -- Oneida Nation of New York; Tribal courts -- Oneida Nation of New York; Municipal courts -- Oneida (N.Y.).

*Synopsis: (from the opinion) On July 11, 2002 petitioner, a member of the Oneida Indian Nation, was charged in Oneida City Court with the crime of harassment in the second degree. The charge arose out of an altercation between petitioner and another Oneida Indian that took place on Indian Nation property. While that charge was pending, a criminal complaint was filed against petitioner in the Nation tribal court charging petitioner with assault, harassment and disorderly conduct arising out of the same transaction giving rise to the City Court charge.

*Holding: not available

Whittington v. Paragon Casino Resort
867 So.2d 174, Docket No. WCA 03-1286
Court of Appeal of Louisiana, third circuit, March 3, 2004

Subjects: Workers' compensation; Paragon Casino Resort (La.); Jurisdiction -- Louisiana; Louisiana. Office of Worker's Compensation Administration.

*Synopsis: (from the opinion) This case involves the issue of whether the Office of Workers' Compensation has subject matter jurisdiction to hear a claim filed by an employee of the Tunica Biloxi Indians of Louisiana d/b/a Paragon Casino. Finding that this specific issue has been recently addressed by this court, we affirm.

*Holding: not available

Bordelon v. Tunica Biloxi Indian Tribe of LA
867 So.2d 172, Docket No. 2003-1223
Court of Appeal of Louisiana, March 3, 2004

Subjects: Workers' compensation; Paragon Casino Resort (La.); Jurisdiction -- Tunica-Biloxi Indian Tribe of Louisiana; Sovereign immunity -- Tunica-Biloxi Indian Tribe of Louisiana.

*Synopsis: (from the opinion) The plaintiff, Pamela Bordelon, appeals the judgment of the workers' compensation judge granting an exception of subject matter jurisdiction in favor of the defendant, Tunica Biloxi Indian Tribe of LA, d/b/a Paragon Casino and Resort, dismissing her workers' compensation claim with prejudice. Tunica Biloxi filed the exception claiming that it was immune from suit in the Louisiana Department of Labor, Office of Workers' Compensation, due to its sovereign status as an Indian nation.

*Holding: The judgment of the workers' compensation judge granting Tunica Biloxi's exception of lack of subject matter jurisdiction is affirmed. The costs of this matter are assessed to the plaintiff-appellant, Pamela Bordelon. Affirmed.

Stelly v. Paragon Casino and Resort
867 So.2d 173, Docket No. 03-1222.
Court of Appeals, Louisiana, Third Circuit, March 3, 2004.

Subjects: Workers' compensation claims; Jursidiction -- Louisiana; Paragon Casino Resort -- Tunica-Biloxi Indian Tribe of Louisiana; Sovereign immunity -- Paragon Casino Resort; Louisiana. Dept. of Labor; Indian gaming; Gambling on Indian reservations.

*Synopsis: (from the opinion) In this workers' compensation case, Defendant filed an exception of lack of subject matter jurisdiction, claiming that it was immune from suit in the Louisiana Department of Labor, Office of Workers' Compensation, due to its sovereign status as an Indian nation. The workers' compensation judge sustained the exception and dismissed Plaintiff's suit. After reviewing the law and the evidence, we conclude that the issues in this case are essentially identical to those in our recent decision of Ortego v. Tunica Biloxi Indians of La. d/b/a Paragon Casino, 03-1001 (La.App. 3 Cir. 2/4/04), --- So.2d ----. Finding Ortego controlling, we affirm the dismissal of Plaintiff's suit.

*Holding: The judgment of the Office of Workers' Compensation granting Defendant's exception of lack of subject matter jurisdiction is affirmed. Costs of this appeal are assessed to Plaintiff-Appellant, Laura Stelly. Affirmed.

Agua Caliente Band of Cahuilla Indians v. Superior Court
10 Cal.Rptr.3d 679, Docket No.C043716
Court of Appeals,Third District, California, March 3, 2004

Subjects: Agua Caliente Band of Cahuilla Indians of the Agua Caliente Indian Reservation, California; California. Fair Political Practices Commission; California. Political Reform Act of 1974; Campaign funds; Jurisdiction -- California; Sovereign immunity -- Agua Caliente Band of Cahuilla Indians of the Agua Caliente Indian Reservation, California.

*Synopsis: The Fair Political Practices Commission sued an Indian tribe to force it to comply with reporting requirements for campaign contributions contained in the Political Reform Act. The tribe filed a motion to quash service of summons for lack of personal jurisdiction, on the ground that it was immune from suit under the doctrine of tribal sovereign immunity. The Superior Court, Sacramento County, Loren E. McMaster, J., denied the tribe's motion. The tribe filed a petition for writ of mandate, and the Court of Appeal denied the petition. The California Supreme Court granted the tribe's petition for review and transferred the matter to the Court of Appeal.

*Holding: The Court of Appeal, Sims, J., held that: the state, through the Fair Political Practices Commission, could rely on the constitutional Guarantee Clause, together with the state's reserved right under Tenth Amendment, to bring suit against the tribe. Petition denied.

Related news stories: State Can Sue Tribes, Court Rules (LA Times) 03/04

February

Moses v. Kalama-Scott
192 Or.App. 302, Docket Nos. 98CV 003133; A117071
Court of Appeals, Oregon, Feb. 25, 2004

Subjects: Quiet title actions; Real property -- On Indian reservations; Indian allotments -- Warm Springs Reservation, Confederated Tribes of the, Oregon; Tribal courts.

*Synopsis: Plaintiffs brought action to quiet title to real property located on Indian reservation. The Circuit Court, Jefferson County, Gary S. Thompson, J., granted defendants' motion for directed verdict against plaintiffs' adverse possession claim, and granted summary judgment for defendants with regard to plaintiffs' claim seeking full faith and credit to a judgment by tribal court regarding the property. Plaintiffs appealed.

*Holding: The Court of Appeals, Wollheim, J., held that: (1) failure to include notice of tribal court's proceedings in the appellate record prevented finding that trial court erred, and (2) plaintiffs' argument regarding claim of adverse possession was expressly waived by plaintiffs in trial court. Affirmed.

In re Interest of Adrian C. et al.
2004 WL 330086, Docket Nos. A-03-529 through A-03-531
Court of Appeals, Nebraska, February 24, 2004.

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

*Synopsis: (from the opinion) Robin C. appeals from the decision of the county court for Scotts Bluff County, Nebraska, sitting as a juvenile court, which terminated her parental rights to her three children under the Nebraska Indian Child Welfare Act. For the reasons set forth herein, we affirm.

*Holding: The court holds that while the juvenile court did err by failing to properly apply § 43-1505(4), that error was harmless because there was sufficient evidence presented to show that "active efforts" were taken to prevent the breakup of Robin's family. Further, we find that sufficient evidence was presented to terminate Robin's parental rights, and we affirm the decision of the juvenile court.

Herald Company, Inc. v. Fuerstein
779 N.Y.S.2d 333, Docket Nos.
Supreme Court, New York County, New York, Feb. 23, 2004

Subjects: New York Herald Company; Newspapers -- New York; New York State Racing and Wagering Board; Indian gaming; Gambling on Indian Reservations; United States. Indian Gaming Regulatory Act; Freedom of information -- New York; Oneida Nation of New York; Casinos -- Oneida Nation of New York.

*Synopsis: Newspaper petitioned for review of a final determination of Racing and Wagering Board to deny its Freedom of Information Law (FOIL) request, and sought order requiring production of daily inspection reports and patron complaints collected by the Board from Indian gaming commission with regard to casino governed by tribal-state gaming compact pursuant to Indian Gaming Regulation Act (IGRA). Board filed cross-motion to dismiss the petition.

*Holding:The Supreme Court, New York County, Ronald A. Zweibel, J., held that:
(1) Board was plainly an "agency" under FOIL, and inspection reports and patron complaints filed with it were clearly "records" under FOIL;
(2) state or federal statute exemption of FOIL did not apply to Board's denial of newspaper's information request;
(3) possibility that Board's release of reports and complaints would violate tribal-state gaming compact did not support Board's denial of newspaper's request for records under FOIL;
(4) federal preemption doctrine did not prevent Board's compliance with FOIL;
(5) tribal nation's absence from action did not require dismissal of action for failure to join indispensible party; and
(6) newspaper was not entitled to attorney fees, given that record did not demonstrate that Board lacked reasonable basis to withhold documents.
Petition granted; defendant's motion denied.

In the Interest of J.J.G., DOB: 01/15/91.
32 Kan.App.2d 448, Docket No. 89,841
Court of Appeals, Kansas, Feb. 13, 2004

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

*Synopsis: After child in need of care (CINC) petition was filed for minor child of mother, who was member of Indian tribe, and father, who was non- Indiana, the District Court, Sedgwick County, Timothy H. Henderson, J., terminated father's parental rights. Father appealed.

*Holding: The Court of Appeals, Greene, P.J., held that: (1) literal compliance with requirement under Indian Child Welfare Act (ICWA) that Tribe be given notice of termination of parental rights of non- Indian father was not necessary; (2) literal compliance with evidentiary requirement under ICWA that parental termination be supported by evidence beyond reasonable doubt was unnecessary; (3) fact that father's multiple convictions for rape and sexual exploitation of his own daughter had not yet been affirmed on appeal, did not prevent convictions from serving as presumptive evidence that father was unfit for parenthood; and (4) even if father's incarceration prevented him from attending parenting classes, or maintaining visitation, termination of father's parental rights was justified for numerous reasons that were supported by substantial competent evidence. Affirmed.

Commanche Nation v. Fox
128 SW 3d. 745, Docket No. 03-03-00151-CV
Court of Appeal of Texas, February 12, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- Texas; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; New trials; Comanche Nation, Oklahoma (formerly the Comanche Indian Tribe).

*Synopsis: In post-judgment child custody dispute paternal grandparents were appointed sole managing conservators of child. Indian tribe and mother intervened and moved for new trial alleging transfer to tribal court was required under Indian Child Welfare Act. The County Court at Law No. 1, Williamson County, Kevin Henderson, J., denied motions. Tribe and mother appealed.

*Holding: The Court of Appeals, Bea Ann Smith, J., held that:
(1) mother satisfied "mistake" element of new trial test;
(2) mother satisfied meritorious defense element of new trial test;
(3) mother demonstrated new trial would not result in delay or injure grandparents;
(4) Indian tribe satisfied elements of new trial test; and
(5) Indian Child Welfare Act did not apply to child custody modification proceedings.
Reversed and remanded for new trial.

In the Interest of C.H.
680 N.W.2d 379 , Docket No. 03-1966
Court of Appeals, Iowa, Feb. 11, 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; Cherokee Indians; Heritage.

*Synopsis: State filed petition to terminate mother's parental rights with respect to her two minor children. The District Court, Polk County, William Price, J., granted petition, and mother appealed.

*Holding: The Court of Appeals, Vogel, J., held that trial court was required to follow strict notice requirements of federal and state Indian Child Welfare Acts (ICWA). Reversed and remanded.

Ortego v.Tunica Biloxi Indians of LA
865 So.2d 985, Docket No. 2003-1001.
Court of Appeal of Louisiana, Third Circuit, Feb. 4, 2004.

Subjects: Workers' compensation claims -- Tunica-Biloxi Indian Tribe of Louisiana; Casinos -- Accidents -- Tunica-Biloxi Indian Tribe of Louisiana; Jurisdiction -- Tribal courts; Jurisdiction -- Louisiana.

*Synopsis: Casino employee filed a disputed-claim form contesting termination of workers' compensation benefits by Native American Tribe that owned casino. The Office of Workers' Compensation No. 2, Parish of Rapides, James L. Braddock, Workers' Compensation Judge, granted Tribe's exception of lack of subject matter jurisdiction, and employee appealed.

*Holding: The Court of Appeal, Marc T. Amy, J., held that: (1) Tribe did not waive its sovereign immunity over workers' compensation claims as a result of silence in compact between Tribe and State of Louisiana regarding workers' compensation claims; (2) compact between the Tribe and the State did not evince an intent to waive sovereign immunity over workers' compensation claims; (3) ordinance passed by the Tribe regarding its intention to exercise jurisdiction over workers' compensation claims did not have to be signed by Tribal chairman and Governor of Louisiana, and approved by Secretary of the Interior, in order to be effective; and (4) workers' compensation claim would be dismissed on ground of sovereign immunity rather than exhaustion of Tribal remedies. Affirmed.

January

Alaska Native Tribal Health Consortium v. Settlement Funds Held for or to Be Paid on Behalf of E.R.
84 P.3d 418, Docket Nos. S-10662, S-10696, S-10785

Supreme Court of Alaska, January 30 , 2004

Subjects: Foreclosure; Alaska Native Tribal Health Consortium; Alaska; Alaska Natives -- Hospitals; Alaska Natives -- Medical care; Lawyers -- Fees; Third parties (Law).

*Synopsis: Tribal organization, which operated hospital that treated Alaskan natives for free, brought action seeking to foreclose on health care provider liens against settlement funds received by patients who were treated by hospital, and patients' attorneys sought to have organization's lien recovery reduced by percentage in contingency fee agreements with patients. The Superior Court, Third Judicial District, Anchorage, John Reese and Eric T. Sanders, JJ., allowed organization to foreclose on liens, but reduced lien amounts for attorney fees.

*Holding: On cross-appeals, the Supreme Court, Fabe, J., held that:
(1) tribal organization was entitled to enforce health care provider liens;
(2) organization's notice of lien was sufficient;
(3) federal statute prohibiting state law from hindering the right of recovery of a tribal organization did not apply to the reduction of lien by a pro rata share of attorney fees; and
(4) organization was required to pay pro rata share of attorney fees from lien funds. Affirmed.

Runyon v.Association of Village Council Presidents
84 P.3d 437, Docket Nos. S-10772, S-10838
Supreme Court of Alaska, Jan. 30, 2004

Subjects: Association of Village Council Presidents; Sovereign immunity; Tribes -- Alaska; Torts; Head Start Program (U.S.) -- Alaska; Alaska Native students.

*Synopsis: Parents of two students brought tort actions against Association of Village Council Presidents (AVCP) to recover for students' injuries allegedly stemming from the inadequate training and supervision of Head Start teachers. The Superior Court, Fourth Judicial District, Bethel, Dale O. Curda, J., dismissed the claims based on sovereign immunity of member tribes. Parents appealed.

*Holding:The Supreme Court, Fabe, J., held that the AVCP was not entitled to the protection of member villages' tribal sovereign immunity. Reversed and remanded.

Winer v. Penny Enterprises, Inc
674 N.W.2d 9, Docket No. 20030114.
Supreme Court of North Dakota, Jan. 28, 2004

Subjects: North Dakota; Automobile drivers; Tribal members; Non-Indians; Traffic accidents -- Spirit Lake Tribe, North Dakota (formerly known as the Devils Lake Sioux Tribe); Traffic accidents -- On Indian reservations; Jurisdiction -- North Dakota; District courts -- North Dakota.

*Synopsis: Non-Indian motorist brought action against Indian motorist to recover for injuries sustained in automobile accident on state highway within exterior boundaries of Indian reservation. The District Court, Benson County, Northeast Judicial District, Lee A. Christofferson, J., dismissed action for lack of subject-matter jurisdiction. Non-Indian motorist appealed.

*Holding: The Supreme Court, Neumann, J., held that: (1) district court's judgment was appealable, even though action was dismissed without prejudice, and (2) district court did not have subject-matter jurisdiction over action. Affirmed.

State v. Romero
135 N.M. 53, Docket No. 22,836
Court of Appeals, New Mexico, Jan. 20, 2004

Subjects: Assault and battery -- New Mexico; Taos (N.M.); Indian Country (New Mexico) -- Defined; Jurisdiction -- New Mexico; Tribal members -- Pueblo of Taos, New Mexico.

*Synopsis: Del E. Romero, was indicted by a Taos County grand jury on one count of aggravated battery, stemming from an incident at the Pueblo Allegre Mall in the town of Taos, New Mexico. Defendant moved to dismiss the charge against him on the ground that he is an Indian, that the Pueblo Allegre Mall is located in Indian country, and that New Mexico lacked subject matter jurisdiction to prosecute criminal charges against an Indian for an offense committed in Indian country. Defendant requested an evidentiary hearing on his motion to dismiss.

*Holding: The court holds that by operation of federal law, the land on which the alleged crime occurred is no longer Indian country, and that the State has jurisdiction to prosecute Defendant.

Related News Stories: Indian Country’ Rulings Create Jurisdiction Questions (Daily Times) 04/19

Gerber v. Eastman
673 N.W.2d 854, Docket No. A03-811
Court of Appeals, Minnesota, Jan. 20, 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; Non-Indians; Jurisdiction -- Beltrami County (Minn.); Jurisdiction -- Red Lake Band of Chippewa Indians of the Red Lake Reservation, Minnesota.

*Synopsis: Non-Indian father filed motion for modification of custody, seeking sole legal and physical custody of Indian child, custody of whom had previously been awarded to Indian maternal grandmother. The District Court, Beltrami County, determined that it had jurisdiction over father's motion, and that the Indian Child Welfare Act (ICWA) did not apply. Grandmother appealed.

*Holding: The Court of Appeals, Gordon W. Shumaker, J., held that: (1) proceeding was not a child custody proceeding within meaning of ICWA; (2) district court, rather than tribal court, had exclusive jurisdiction over proceeding; and (3) mother was not an indispensable party. Affirmed.

State v. Kenaitze Indian Tribe
83 P.3d 1060, Docket No. S-10388.
Supreme Court of Alaska, Jan. 16, 2004

Subjects: Fish populations -- Management -- Alaska; Ninilchik Village (AK); Eklutna Native Village; Knik Tribe; Kenaitze Indian Tribe (AK); Subsistence rights; Fishing rights; Hunting rights; Constitutional law.

*Synopsis: Indian tribes brought action challenging constitutionality of subsistence hunting and fishing statute, for declaration that state was not managing fish stocks in area in accordance with subsistence priority, and for injunction barring state from restricting ability to engage in subsistence uses of fish. The Superior Court, Third Judicial District, Anchorage, Dana Fabe, J., ruled that portions of statute were unconstitutional. On appeal, the Supreme Court reversed and remanded, 894 P.2d 632. After the Superior Court stayed the case for several years, the indian tribes moved for summary judgment on statutory claims. The Superior Court, Third Judicial District, Anchorage, Mark Rindner, J., entered judgment declaring portion of nonsubsistence area invalid and remainder valid. State appealed, and indian tribe cross-appealed.

*Holding: The Supreme Court, Eastaugh, J., held that: (1) Joint Boards of Fisheries and Game could draw starting boundaries of nonsubsistence areas before applying statutory criteria to identify those areas; (2) Joint Boards could include communities within large geographical area when applying criteria to identify nonsubsistence areas; (3) regulation's inclusion of two indian communities within nonsubsistence area was reasonable and not arbitrary; (4) regulation's inclusion of other indian community within nonsubsistence area was reasonable and not arbitrary; and (5) regulations inclusion of peninsula in nonsubsistence area was reasonable and not arbitrary. Affirmed in part, reversed in part.

Ellis v. Allied Snow Plowing, Removal and Sanding Services Corp. et al
81 Conn.App. 110, Docket No. 23496
Apellate Court of CT, Jan. 13, 2004

Subjects: Snow removal -- Mashantucket Pequot Tribe of Connecticut; Roads -- Snow and ice control -- Mashantucket Pequot Tribe of Connecticut; Sovereign immunity -- Mashantucket Pequot Tribe of Connecticut; Contracts; Contractors; Negligence; Sovereign immunity; Jurisdiction -- Connecticut.

*Synopsis: Bus driver filed claim against contractor providing snow removal service on tribally owned parking lot for injuries sustained in slip and fall due to contractor's alleged negligence. The Superior Court, Judicial District of New London at Norwich, D. Michael Hurly, Judge Trial Referee, denied contractor's motion to dismiss. Contractor appealed.

*Holding: The Appellate Court, Peters, J., held that the tribal court did not have exclusive jurisdiction to adjudicate the negligence claim against contractor on basis of tribal sovereign immunity. Affirmed.

Rodriguez v. Wong
119 Wash.App. 636, Docket No. 51727-9-I.
Court of Appeals of Washington, Division 1, Jan. 12, 2004

Subjects: Jurisdiction -- Washington; Muckleshoot Gaming Commission (Wash.) -- Employees; Jurisdiction -- Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Non-members of a tribe.

*Synopsis: The question here is whether a state court has jurisdiction over a claim arising out of the employment of a non Indian employee of the Muckleshoot Gaming Commission. Because the tribe exercised its sovereign authority over its relationship with its employees, state courts have no jurisdiction over this matter, and the trial court properly granted summary judgment to the defendants. The Gaming Commission grievance procedure is set forth in its personnel manual. Rodriquez believed he had been wrongly treated by Wong, and pursuant to the procedure in the manual, he filed a formal grievance alleging several instances of misconduct. The Commission's Grievance Committee held a hearing and issued a written report in which it found some, but not all, of Rodriquez's allegations had merit. The Committee referred the matter "to the Tribal Council for its review and action." The Tribal Council "decided to retain a Management Consultant to help resolve these difficulties."

*Holding: The Court of Appeals, Ellington, J., held that: (1) state lacked subject matter jurisdiction over action arising out of consensual employment relationship with Indian tribe; (2) state jurisdiction over action arising out of employment relationship with Indian tribe would impermissibly affect tribe's political integrity; and (3) state lacked concurrent jurisdiction with Indian tribe. Affirmed.

In re Liliana S.
115 Cal.App.4th 585, Docket No. D042428.
Court of Appeals, Fourth District, Division 1, California, Jan. 9, 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; Agua Caliente Band of Cahuilla Indians of the Agua Caliente Indian Reservation, California.

*Synopsis: County department of health and human services petitioned to have two children of Indian ancestry placed in foster care. The Superior Court, San Diego County, Nos. NJ12496A/B, Harry M. Elias, J., ordered the children placed with their paternal grandmother. Indian tribe appealed.

*Holding: The Court of Appeal, O'Rourke, J., held that Indian tribe waived issue of children's placement with paternal grandmother, who was not Indian, but was employed by tribe and lived close to reservation. Affirmed.

Pourier v. South Dakota Dept. Revenue
674 N.W.2d 314, Docket No. 22221
Superme Court of SD, Jan. 7, 2004

Subjects: Motor fuels -- Taxation -- South Dakota; Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; South Dakota. Dept. of Revenue; Muddy Creek Oil and Gas; Tax refunds -- South Dakota.

*Synopsis: Gas corporation and its sole shareholder, an enrolled member of an Indian tribe, brought action against state Department of Revenue to protest state motor fuel tax imposed on corporation. The Circuit Court, Sixth Judicial Circuit, Hughes County, Steven L. Zinter, J., affirmed the Department's decision. Corporation and shareholder appealed. The Supreme Court, 2003 SD 21, 658 N.W.2d 395, reversed and remanded.

*Holding: On grant of application for rehearing, the Supreme Court, Konenkamp, J., held that: Fifteen-month limitations period imposed by motor fuel taxation scheme applied to claims for refund of motor fuel tax. Reversed and remanded as modified.

Related News Stories: Supreme Court Limits Fuel-tax Refunds (Rapid City Journal) 01/09
http://www.rapidcityjournal.com/articles/2004/01/09/news/local/news04.txt

Francis v. Dana-Cummings v. Pleasant Point Passamaquoddy Housing Authority
840 A.2d 708, Docket No. WAS-03-158
Supreme Judicial Court of Maine, Jan. 6, 2004

Subjects: Maine. Civil Rights Act; Trials (Trespass); Trials (Eviction); Jurisdiction -- Maine; Jurisdiction -- Tribal courts; Passamaquoddy Tribe of Maine; Pleasant Point Passamaquoddy Housing Authority (Me.).

*Synopsis: Alleged owner of private residence on Indian tribe's reservation brought claims against executive director of reservation's housing authority for violation of Maine Civil Rights Act, trespass, and illegal eviction, and executive director filed third-party complaint against the authority. The Superior Court, Washington County, Mead, J., granted authority's motion to dismiss the third-party complaint and sua sponte dismissed the underlying complaint based on failure to state a claim and lack of subject matter jurisdiction. Alleged owner appealed.

*Holding: The Supreme Judicial Court, Rudman, J., held that whether the action involved an internal tribal matter, so that state courts lacked subject matter jurisdiction, could not be resolved at motion to dismiss phase. Vacated and remanded.

 

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