January- March 2004 State Court Cases
March
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.
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.
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
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.