Indian Law Bulletins  |  State Courts  |  Archives 2005

December

Clement v. Four Winds Tribe-Louisiana
921 So.2d 193, Docket No. 05-652
Court of Appeal of Louisiana, Third Circuit, December 30, 2005

Subjects: Contested elections -- Four Winds Tribe - Louisiana Cherokee Confederacy, Inc.; Tribal government -- Four Winds Tribe - Louisiana Cherokee Confederacy, Inc.

*Synopsis: Members of Indian tribe brought quo warranto action against persons purporting to be tribe's governing body. After a bench trial, the District Court removed such persons from office, appointed an interim board of directors, and ordered a new election. After election was held, same tribe members filed declaratory judgment action seeking to have the election results declared null and void due to irregularities in the process. After a bench trial, the Thirtieth Judicial District Court, Vernon Parish, No. 67,931, John C. Ford, J., upheld the election. Tribe members appealed both trial court judgments.

*Holding: The Court of Appeal, Decuir, J., held that:
(1) tribe members acquiesced in trial court's original judgment, and
(2) tribe members failed to establish that new election was rendered invalid by fraud or irregularities.
Affirmed.

In re the Interest of A.B. and M.B.
707 N.W.2d 75, Docket No. 20050223
Supreme Court of North Dakota, December 20, 2005.

Subjects: Parent and child (Law); Trials (Custody of children) -- North Dakota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Intervention (Civil procedure) -- White Earth Band of Chippewa (Minn.).

*Synopsis: In child deprivation case, the Juvenile Court, Cass County, East Central Judicial District, Wade L. Webb, J., entered order granting Indian tribe's motion to intervene. County social worker appealed.

*Holding: The Supreme Court, Kapsner, J., held that order granting motion to intervene was not final, appealable order.
Appeal dismissed.

Smith v. Hall
707 N.W.2d 247, Docket No. 20050270
Supreme Court of North Dakota, December 20, 2005.

Subjects: Parent and child (Law); Indian children -- Legal status, laws, etc.; Child support -- North Dakota; Judicial opinions -- Recording and registration -- Standing Rock Sioux Tribe of North & South Dakota.

*Synopsis: Adjudicated father of child born out-of-wedlock filed motion to vacate the registration of a tribal court order requiring him to pay $250 per month in child support for enforcement in the District Court. The District Court, Burleigh County, South Central Judicial District, Bruce A. Romanick, J., denied motion. Adjudicated father appealed.

*Holding: The Supreme Court, Carol Ronning Kapsner, J., held that adjudicated father's failure to object in district court to registration in district court of tribal court order precluded him from contesting registration of tribal court order on appeal.
Affirmed.

In the Interest of A.B. and M.B. Children
707 N.W.2d 75, Docket No. 20050223
Supreme Court of North Dakota, December 20, 2005.

Subjects: Parent and child (Law); Trials (Custody of children) -- North Dakota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Intervention (Civil procedure) -- White Earth Band of Chippewa (Minn.).

*Synopsis: In child deprivation case, the Juvenile Court, Cass County, East Central Judicial District, Wade L. Webb, J., entered order granting Indian tribe's motion to intervene. County social worker appealed.

*Holding: The Supreme Court, Kapsner, J., held that order granting motion to intervene was not final, appealable order.
Appeal dismissed.

Welch Contracting v. North Carolina Dept. Transportation
622 S.E.2d 691, Docket No. COA05-100
Court of Appeals of North Carolina, December 20, 2005.

Subjects: Breach of contract -- North Carolina. Dept. of Transportation; Letting of contracts -- North Carolina. Dept. of Transportation; Breach of contracts -- Eastern Band of Cherokee Indians of North Carolina; Letting of contracts -- Eastern Band of Cherokee Indians of North Carolina; Sovereign immunity -- North Carolina; Sovereign immunity -- Eastern Band of Cherokee Indians of North Carolina.

*Synopsis: Highway subcontractor brought breach of contract and breach of state bidding requirements action against North Carolina Department of Transportation (NCDOT) and Eastern Band of Cherokee Indians (EBCI). The Superior Court, Swain County, James U. Downs, J., dismissed the action for lack of subject matter jurisdiction, and subcontractor appealed.

*Holding: The Court of Appeals, McGee, J., held that:
(1) NCDOT did not waive its sovereign immunity from breach of contract and breach of state bidding procedures claims brought by subcontractor when NCDOT entered into a construction agreement with EBCI;
(2) EBCI did not waive its tribal sovereign immunity as a result of incorporating under the laws of North Carolina; and
(3) EBCI did not waive its tribal sovereign immunity from subcontractor's claims by entering into a contract with NCDOT, absent claim that such contract unequivocally expressed such a waiver.
Affirmed.

Marriage of Wyatt
330 Mont. 400, Docket No. 05-010
Supreme Court of Montana, December 19, 2005.

Subjects: Divorce -- Montana; Divorce -- Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Jurisdiction -- Montana; Jurisdiction -- Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana.

*Synopsis: Husband filed petition for dissolution of marriage. The Eighth Judicial District Court, County of Cascade, Thomas M. McKittrick, J., declined to exercise jurisdiction as matter of comity in light of finding that tribal court had concurrent jurisdiction and dismissed petition. Husband appealed.

*Holding: The Supreme Court, John Warner, J., held that dismissal of divorce petition on grounds that tribal court had concurrent jurisdiction, as matter of comity, was not abuse of discretion.
Affirmed.

John v. Baker
125 P.3d 323, Docket No. S-11176
Supreme Court of Alaska, December 16, 2005.

Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Concurrent jurisdiction -- Alaska; Concurrent jurisdiction -- Northway Village (AK); Comity; Child support.

*Synopsis: After tribal court entered order granting both parents shared custody of children, the trial court granted primary physical custody of children to father and ordered mother to pay child support. Mother appealed. The Supreme Court, 982 P.2d 738, reversed and remanded, holding that tribal and state superior courts share concurrent jurisdiction over child custody disputes concerning children eligible for tribe membership. On remand, the trial court denied comity to tribal court's custody order, and mother again appealed. The Supreme Court, 30 P.3d 68, reversed and remanded, On remand, the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, J., referred custody matter to tribal court, but concluded that its child support order remained valid. Mother appealed.

*Holding: The Supreme Court, Bryner, C.J., held that trial court retained jurisdiction over issue of child support, as remands following appeals had all been confined to issue of child custody, and there was no tribal child support order to which comity could be extended.
Affirmed.

Bradley v. Crow Tribe of Indians
124 P.3d 1143, Docket No. 04-229
Supreme Court of Montana, December 9, 2005.

Subjects: Jurisdiction -- Montana; Employees, Dismissal of -- Crow Tribe of Montana.

*Synopsis: Tribe member, as employee, sued Indian tribe in state court for breach of employment contract. Employee moved for summary judgment. The District Court, Thirteenth Judicial District, County of Yellowstone, Susan P. Watters, J., initially granted summary judgment, but later dismissed case for lack of subject matter jurisdiction on tribe's motion for relief from judgment. Employee appealed. The Supreme Court, 315 Mont. 75, 67 P.3d 306, reversed and remanded. On remand, The district court re-entered summary judgment for the employee, and tribe's motion to alter or amend judgment was denied by operation of law. Tribe appealed.

*Holding: The Supreme Court, Warner, J., held that:
(1) district court was required to conduct further proceedings on the merits of the case;
(2) district court erred in not granting relief from default summary judgment;
(3) genuine issue of fact existed as to whether employee was properly terminated; and
(4) assuming employee prevailed on issue of breach, genuine issue of fact existed as to amount of damages.
Reversed and remanded.

Murphy v. State of Oklahoma
124 P.3d 1198, Docket No. PCD-2004-321
Court of Criminal Appeals of Oklahoma, December 7, 2005.

Subjects: Criminal jurisdiction -- Oklahoma; Servitudes -- Defined -- Indian Country (Okla.); ; Indian Country (Okla.) -- Defined; Indian allotments -- Oklahoma; Muscogee (Creek) Nation, Oklahoma -- Boundaries; Offenders with mental disabilities -- Oklahoma.

*Synopsis: Defendant was convicted in the District Court, McIntosh County, Steven W. Taylor, J., of first-degree murder with two aggravating circumstances and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Lumpkin, P.J., 47 P.3d 876, affirmed. Defendant filed a second application for post-conviction relief, and the matter was remanded for evidentiary hearing.

*Holding: The Court of Criminal Appeals, Lumpkin, V.P.J., held that:
(1) state's interest in road where murder occurred on land allotted to Indian was an easement or right-of-way, not fee simple, for purposes of determining whether the murder occurred in Indian country and state had criminal jurisdiction;
(2) as a matter of first impression, one-twelfth interest that Indian citizen owned in mineral estate did not qualify the property as an Indian allotment;
(3) the road was not shown to be part of a Creek Nation reservation or a dependent Indian community; and
(4) defendant provided sufficient evidence to raise a fact question on mental retardation claim.
Application granted in part and denied in part; case remanded.
Questions answered.

In re Baby Boy C.
805 N.Y.S.2d 313, Docket No. Unknown
Supreme Court, Appellate Division, First Department, New York, December 6, 2005.

Subjects: Parent and child (Law); Trials (Custody of children) -- New York (State); Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Existing Indian family exception; Intervention (Civil procedure) -- Tohono O'odham Nation of Arizona.

*Synopsis: Adoption proceeding was filed. Tribe moved to intervene pursuant to Indian Child Welfare Act (ICWA). The Family Court, New York County, Mary E. Bednar, J., denied motion and directed adoption to proceed. Tribe appealed.

*Holding: The Supreme Court, Appellate Division, Gonzalez, J., held that:
(1) as a matter of first impression, Appellate Division would not adopt judicially created existing Indian family (EIF) exception to the Indian Child Welfare Act (ICWA);
(2) ICWA applied without EIF exception does not violate equal protection or substantive due process principles;
(3) tribe could not intervene as a matter of right pursuant to ICWA; but
(4) tribe would be permitted to intervene in proceeding under applicable state law.
Reversed and remanded.

November

Seneca Niagra Falls Gaming Inc. v. Klewin Buidling Co.
2005 WL 3510348, Docket No. 4004218
Superior Court of Connecticut, November 30, 2005.

Subjects: Seneca Niagra Falls Gaming Inc.; Klewin Building Co.; Sovereign immunity -- Seneca Niagra Falls Gaming Inc.; Law -- Connecticut..

*Synopsis: (from the opinion) The plaintiff has filed this motion to dismiss counterclaims and application for immediate temporary injunction on the basis that the claims asserted by the Klewin defendants are barred by the doctrine of sovereign immunity and on the basis that the Klewin defendants failed to establish jurisdiction for their claims as an application pursuant to Connecticut General Statutes § 52-422 because none of their claims are being arbitrated.

*Holding: not available

In re Termination of Parental Rights to Daniel R.S.
706 N.W.2d 269, Docket Nos. 2004AP1305, 2004AP1306
Supreme Court of Wisconsin, November 30, 2005.

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

*Synopsis: Petition was brought seeking termination of mother's parental rights. The Circuit Court, Brown County, J.D. McKay, J., granted petition. Mother appealed. The Court of Appeals affirmed. Mother appealed.

*Holding: The Supreme Court, Shirley S. Abrahamson, C.J., held that: (1) mother laid a proper foundation qualifying psychologist as an expert to testify regarding whether mother was likely to be able to meet the conditions for return of her children within twelve-month period; (2) trial court's error in precluding psychologist's expert opinion testimony denied mother her due process right to present a defense, and thus constituted reversible error; (3) reassignment of a case to a different judge because of docket congestion does not constitute disqualification of a judge; and (4) trial court did not improperly instruct jury that State law elements for termination of parental rights must be proven only by clear and convincing evidence.
Decision of Court of Appeals reversed; cause remanded.

In re Cole
2005 WL 3078191, Docket No. 262918
Court of Appeals of Michigan, November 17, 2005.

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; Parental rights -- Termination -- Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan -- Membership.

*Synopsis: (from the opinion) Respondent Cody BigJohn appeals as of right from the trial court order terminating his parental rights to the minor child, Angela Cole (d/o/b 2/6/04), under MCL 712A.19b(3)(g) (failure to provide proper care or custody). Because eligibility for Tribe membership is for the Tribe to determine, and because the trial court applied the incorrect standard in its termination of parental rights analysis, we reverse in part and remand; however, we do not disturb the trial court’s finding regarding the qualification of the expert witness in question.

*Holding: not available

Squirrel v. Bordertown Bingo
125 P.3d 680, Docket Nos. 101,818, 101,819
Court of Civil Appeals of Oklahoma, Division 1, November 11, 2005.

Subjects: Workers compensation claims -- Eastern Shawnee Tribe of Oklahoma; Bordertown Bingo; Jurisdiction -- Oklahoma; Sovereign immunity -- Eastern Shawnee Tribe of Oklahoma.

*Synopsis: Workers' compensation claimant, who was employee of Indian tribe's bingo hall, appealed from a decision of the Workers' Compensation Court finding that the Workers' Compensation Court lacked subject matter jurisdiction over claimant's benefit claims.

*Holding: The Court of Civil Appeals, Robert Dick Bell, J., held that tribe's insurer was estopped from asserting tribe's sovereign immunity in defense of workers' compensation claims brought by claimant.
Vacated.

State of Utah v. Reber
128 P.3d 1211, Docket No. 20040371-CA
Court of Appeals of Utah, November 10, 2005.

Subjects: Poaching -- Utah -- Uintah County; Deer hunting -- Indian Country (Utah); Jurisdiction -- Utah; FIsh and game licenses -- Utah.

*Synopsis: Defendant was convicted in a jury trial in the Eighth District, Vernal Department, A. Lynn Payne, J., of aiding or assisting in wanton destruction of protected wildlife, and two other defendants entered conditional guilty pleas to attempted wanton destruction of protected wildlife. Defendants appealed.

*Holding: The Court of Appeals, Bench, Associate P.J., held that state court lacked jurisdiction over hunting violations committed on Indian lands.
Vacated.

Related News Story: Appeals court overturns ruling of poaching in 'Indian Country' (Salt Lake Tribune) 11/11/05

In re Adoption of Sara J.
123 P.3d 1017, Docket Nos. S-11301, S-11312
Supreme Court of Alaska, November 10, 2005.

Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Kinship care; Brothers and sisters; Non-Indians; Interracial adoption.

*Synopsis: Non-Native woman petitioned to adopt three Native children who were siblings. The Superior Court, Fourth Judicial District, Bethel, Dale O. Curda, J., finding that good cause existed to deviate from the preferred placements mandated by Indian Child Welfare Act (ICWA), granted the petition. The Indian tribe with the most significant contacts to the children and the children's Native maternal uncle and aunt appealed.

*Holding: The Supreme Court, Eastaugh, J., held that:
(1) prevailing social and cultural standards of Indian community do not govern good cause determination under ICWA, except insofar such determination raises questions about suitability of proposed preferred placement, and
(2) evidence supported trial court's findings the good cause existed in this case.
Affirmed.

Alliance to Save the Mattaponi v. Commonwealth of Virginia, Department of Environmental Quality
621 S.E.2d 78, Docket Nos. 042196, 042198, 042826
Supreme Court of Virginia, November 4, 2005.

Subjects: Virginia. State Water Control Board; Permits -- Virginia -- Newport News; Treaty at Middle Plantation(1677); King William Reservoir project (Va.); Reservoirs -- Virginia; Dams -- Virginia; State recognized Indian tribes -- Mattaponi Indian Reservation (Virginia); Treaty rights -- Mattaponi Indian Reservation (Virginia); Mattaponi Indian Reservation (Virginia) -- Exclusion, Right of; Trials (Trespass); Evidence; Sovereign immunity -- Virginia.

*Synopsis: Environmental conservation organizations and landowners sought review of decision of State Water Control Board (SWCB) to issue a water protection permit to city for reservoir project. The Circuit Court, City of Newport News, Robert W. Curran, J., dismissed. Organizations and landowners appealed. The Court of Appeals, 30 Va.App. 690, 519 S.E.2d 413, affirmed. Organizations and landowners appealed. In separate action, Indian tribe appealed from SWCB's issuance of WPP to city. The Circuit Court sustained Commonwealth and city's demurrers. Tribe appealed. The Court of Appeals, 31 Va.App. 472, 524 S.E.2d 167, affirmed, and tribe appealed. On consolidated appeals, the Supreme Court, 261 Va. 366, 541 S.E.2d 920, reversed. On remand, the Circuit Court affirmed in part and dismissed in part. On appeal, the Court of Appeals, 43 Va.App. 690, 601 S.E.2d 667, affirmed in part and transferred in part.

*Holding: On consolidated appeals, the Supreme Court, Barbara Milano Keenan, J., held that:
(1) Board acted within its discretion in determining that permit conditions would provide adequate protection for affected wetlands;
(2) Board acted within its discretion in relying on a one-dimensional scientific model addressing potential salinity changes in river;
(3) Board satisfied its statutory obligation to prevent waste or unreasonable use of state waters;
(4) Board did not have authority to consider tribe's rights under a 1677 treaty with the British Crown;
(5) affected archaeological sites were not beneficial uses of water;
(6) treaty was not federal law;
(7) Commonwealth had sovereign immunity;
(8) Board's Executive Secretary had immunity from suit in his official capacity; and
(9) circuit court had jurisdiction to consider tribe's claims against city.
Affirmed; affirmed; affirmed in part, reversed in part, and remanded.

In re I.G.
35 Cal.Rptr.3d 427, Docket No. A106784
Court of Appeal, First District, Division 2, California, November 2, 2005.

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; Foster care placement -- California; Kinship care -- California.

*Synopsis: County department of human services filed dependency petition. The Superior Court, City and County of San Francisco, No. JD01-3236, Geraldine Rosen-Park, Commissioner, and Katherine Feinstein, J. terminated family reunification services, placed child with paternal aunt, ordered that parents have monthly supervised visits with child, and scheduled permanency planning hearing. Parents appealed.

*Holding: The Court of Appeal, Ruvolo, J., held that: (1) department failed to comply with notice provisions of Indian Child Welfare Act (ICWA), and (2) given inexcusable delay, in interests of justice, on remand further proceedings would be conducted before family court supervising judge.
Affirmed in part, and remanded.

Big Valley Band of Pomo Indians v. Superior Court of Lake County
133 Cal.App.4th 1185, Docket No. D047094
Court of Appeal, First District, Division 3, California, November 1, 2005

Subjects: Breach of contract -- Big Valley Band of Pomo Indians of the Big Valley Rancheria, California; Casinos -- Employees -- Big Valley Band of Pomo Indians of the Big Valley Rancheria, California; Sovereign immunity -- Big Valley Band of Pomo Indians of the Big Valley Rancheria, California; Arbitration agreements, Commercial -- Big Valley Band of Pomo Indians of the Big Valley Rancheria, California.

*Synopsis: Former employees of Indian casino sued the Tribe for breach of contract, and the Superior Court of Lake County, No. CV400621,Galen Hathaway, J., overruled Tribe's demurrer on grounds of sovereign immunity. Tribe petitioned for writ review.

*Holding: The Court of Appeal, Corrigan, Acting P.J., held that arbitration clause in employment contracts did not waive sovereign immunity.

October

State of Iowa v. Lasle
705 N.W.2d 481, Docket No. 03-1938
Supreme Court of Iowa, October 28, 2005.

Subjects: Jurisdiction -- Iowa; Jurisdiction -- Sac & Fox Tribe of the Mississippi in Iowa; Age (Law) -- Iowa; Minors -- Iowa; Tobacco -- Sac & Fox Tribe of the Mississippi in Iowa; Indian business enterprises -- Sac & Fox Tribe of the Mississippi in Iowa.

*Synopsis: Defendant, who was employed at store owned by Indian tribe, was charged with providing tobacco to an underaged person. Tribe filed motion to dismiss for lack of subject matter jurisdiction. The District Court, Tama County, John J. Willett, Magistrate, granted motion. State filed application for discretionary review.

*Holding: Upon grant of application, the Supreme Court, Lavorato, C.J., held that:
(1) discretionary review by Supreme Court of state's appeal of dismissal of charge was appropriate;
(2) statute prohibiting person from selling, giving, or otherwise supplying any tobacco, tobacco products, or cigarettes to a person under 18 years of age was criminal/prohibitory in nature, such that state had jurisdiction to enforce statute against defendant; and
(3) reinstatement of prosecution was not barred by prohibition against double jeopardy.
Reversed and remanded.

State of Idaho v. Ambro
123 P.3d 710, Docket No. 31181
Court of Appeals of Idaho, October 28, 2005.

Subjects: Jurisdiction -- Idaho; Criminal actions arising in Indian Country (Idaho) -- Coeur D'Alene Tribe of the Coeur D'Alene Reservation, Idaho; Jurisdiction -- United States; Jurisdiction -- Coeur D'Alene Tribe of the Coeur D'Alene Reservation, Idaho; Methamphetamine.

*Synopsis: Defendant pled guilty in the District Court, First Judicial District, Kootenai County, Charles W. Hosack, J., to possession of a controlled substance, reserving her right to appeal the district court's denial of her motion to dismiss and her motion for reconsideration. Defendant appealed.

*Holding: The Court of Appeals, Perry, C.J., held that state lacked subject matter jurisdiction to prosecute Indian for methamphetamine, possessed on reservation, even though it was found during traffic stop on state highway.

Arizona Minority Coalition for Fair Redistricting v. The Arizona Independent Redistricting Commission
121 P.3d 843, Docket No. 1 CA-CV 04-0061
Court of Appeals of Arizona, Division 1, Department C, October 21, 2005.

Subjects: Navajo Nation Arizona New Mexico Utah; Arizona Redistricting Commission; United States. Voting Rights Act of 1965; Election districts -- Arizona; Apportionment (Election law).

*Synopsis: After voters amended the Arizona Constitution and transferred the power to redraw lines for both legislative and congressional districts from the state legislature to an independent commission, actions were filed in the Superior Court in Maricopa County, No. CV 2002-004380, Kenneth Fields, J., against the commission by various parties challenging the redistricting plan. The trial court upheld certain challenges and rejected others. Commission and other parties appealed.

*Holding: The Court of Appeals held that:
(1) plan was not subject to strict scrutiny review;
(2) commission was not required to define terms in self-executing constitutional provision;
(3) competitiveness of districts was not an overriding goal;
(4) commission did not improperly consider residences of incumbents, and
(5) plan respected differing communities of interest of Indian Nation and Indian Tribe.
Affirmed in part, reversed in part, and remanded.

Big Valley Band of Pomo Indians v. Superior Court of Lake County
35 Cal.Rptr.3d 357, Docket No. A108615
Court of Appeal, First District, Division 3, California, October 12, 2005.

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; Notice (Law) -- United States.

*Synopsis: Former employees of Indian casino sued the Tribe for breach of contract, and the Superior Court of Lake County, No. CV400621, Galen Hathaway, J., overruled Tribe's demurrer on grounds of sovereign immunity. Tribe petitioned for writ review.

*Holding: The Court of Appeal, Corrigan, Acting P.J., held that arbitration clause in employment contracts did not waive sovereign immunity.
Writ granted.

September

Peterman v. Pataki
21 A.D.3d 1387
Court of Appeals of N.Y. September 30, 2005.
U.S. Supreme Court Petition for Certiorari Filed (October 2, 2006)

Subjects: Indian gaming -- Oneida Nation of New York; Gambling on Indian reservations -- New York (State); Sovereign immunity -- Oneida Nation of New York; New York (State). Governor -- Powers and duties; Intergovernmental agreements -- Oneida Nation of New York; Parties to actions.

*Synopsis: (from Westlaw) Appeal from a judgment (denominated order) of the Supreme Court, Oneida County (James W. McCarthy, A.J.), entered August 25, 2004. The judgment, insofar as appealed from, denied the motion of Oneida Indian Nation of New York and Ray Halbritter to dismiss the third amended complaint upon the grounds of failure to join an indispensable party and lack of a justiciable controversy.

*Holding: not available

Taxpayers of Michigan Against Casinos v. State of Michigan
708 N.W.2d 115, Docket No. 225017
Court of Appeals of Michigan, September 22, 2005.

Subjects: United States. Indian Gaming Regulatory Act; United States. Congress -- Powers and duties; Casinos -- Michigan; Gambling on Indian reservations -- Michigan; Michigan; Indian gaming -- Michigan; Tribes -- Michigan; Michigan -- Powers and duties; Michigan. Governor -- Powers and duties; Separation of powers -- Michigan; Intergovernmental agreements -- Michigan; Taxpayers of Michigan Against Casinos.

*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. The Supreme Court 471 Mich. 306, 685 N.W.2d 221, affirmed in part and remanded.

*Holding: On remand, the Court of Appeals, Schuette, J., held that amendment by Governor of gambling compact without legislative approval violated separation of powers clause in Michigan Constitution.
Circuit Court affirmed on issue presented on remand.

Bruner v. State of Oklahoma
130 P.3d 767, Docket No. 100,536
Court of Civil Appeals of Oklahoma, Division 2, September 20, 2005
U.S. Supreme Court Petition for Certiorari Filed (May 15, 2006)

Subjects: Mines and mineral resources -- Taxation -- Oklahoma; Mines and mineral resources -- Indian Country (Oklahoma); Indian allotments; Restricted lands; Five Civilized Tribes; Due process of law; United States. Constitution; Law -- United States.

*Synopsis: Taxpayer, who was a full-blood Creek Indian, sought review of order of the Oklahoma Tax Commission denying tax refund of gross production and petroleum excise taxes for oil production that was from restricted Indian land.

*Holding: The Court of Civil Appeals, Ronald J. Stubblefield, J., held that:
(1) taxpayer was not entitled to refund based on agreements between the United States government and the Creek Nation, and
(2) statute that exempted Indians from refund limitation only applied to income taxes.
Affirmed.

In re Advisory Opinion to the House of Representatives
885 A.2d 698, Docket No. 2005-134-M.P
Supreme Court of Rhode Island, September 19, 2005.

Subjects: Constitutional law -- Rhode Island; Casinos -- Law and legislation -- Rhode Island; Casinos -- State supervision -- Rhode Island.

*Synopsis: The House of Representatives sought advisory opinion regarding the constitutionality of proposed casino bill.

*Holding: The Supreme Court held that proposed casino bill violated State constitution provision that required State to have operational control over casinos.
Questions answered.

In re X.V.
33 Cal.Rptr.3d 893, Docket Nos. D045843, D046350
Court of Appeal, Fourth District, Division 1, California, September 13, 2005.

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; Family violence; Drug abuse; Parental rights -- Termination -- California; Jurisdiction -- California; Notice (Law).

*Synopsis: County health and human services agency filed child dependency petition due to domestic violence between parents and their history of drug abuse. The father advised the agency of his Indian heritage. The Superior Court, San Diego County, No. SJ10935A/B, Peter E. Riddle, J., terminated parental rights and ordered adoption as permanent plan. Mother appealed, and Court of Appeal conditionally reversed the judgment and remanded so that the agency could provide proper Indian Child Welfare Act (ICWA) notice. On remand, the court found the ICWA to be inapplicable, and reinstated the judgment terminating parental rights. Parents appealed, and also filed petition for writ of habeas corpus.

*Holding: The Court of Appeal, McConnell, P.J., held that:
(1) Court of Appeal lacked jurisdiction to review termination of father's rights to another child, as he did not timely appeal that separate judgment, and
(2) as matter of first impression, parents' failure to object to ICWA notice at hearing on remand following initial conditional reversal of judgment by appellate court precluded subsequent appellate review of ICWA notice issues during second appeal.
Appeal dismissed in part, judgment affirmed, and petition denied.

August

Astroga v. Wing
118 P.3d 1103, Docket No. 1 CA-SA 05-0153
Court of Appeals of Arizona, August 30, 2005.

Subjects: Cooperative agreements -- Navajo Nation Division of Social Services; Cooperative agreements -- Greer’s Scott Mortuary (Ariz.); Poor -- Navajo Nation, Arizona, New Mexico & Utah -- Members; Funeral homes -- Arizona; Manners and customs -- Navajo Nation, Arizona, New Mexico & Utah; Jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah; Jurisdiction -- Arizona.

*Synopsis: After Indian plaintiffs initially filed complaint against mortuary in tribal court for wrongful burial and other claims, they filed the present parallel action in state court. Plaintiffs then requested the superior court to stay proceedings pending a determination by the tribal court as to whether it had jurisdiction to hear the case. The Superior Court, CV 2003-0212, Thomas L. Wing, J., denied the motion to stay, and plaintiffs petitioned for special action

*Holding: The Court of Appeals, Snow, J., held that:
(1) court would accept special action jurisdiction, and
(2) plaintiffs were not entitled to stay.
Jurisdiction accepted; relief denied.

In re Alexis H.
33 Cal.Rptr.3d 242, Docket No. B177126.
Court of Appeal, Second District, California, August 22, 2005

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; Jurisdiction -- California; Notice (Law); Tribal membership.

*Synopsis: County department of children and family services filed dependency petition based on mother's failure to protect children and father's failure to care for children due to his being in prison. The Superior Court, Los Angeles County, No. CK54566, Stephen Marpet, Temporary Judge, declared children to be dependents, placed them with mother, and ordered provision of family reunification services. Father appealed.

*Holding: The Court of Appeal, Rubin, Acting P.J., held that:
(1) any deficiency in compliance with notice provisions of Indian Child Welfare Act was harmless error, and
(2) substantial evidence supported assumption of dependency jurisdiction.
Affirmed.

Squirrel v. Bordertown Bingo
2005 OK CIV APP 95, Docket Nos. 100,818, 101, 819
Court of Civil Appeals of Oklahoma, Div. No. 1, August 19, 2005.

Subjects: Workers compensation claims -- Eastern Shawnee Tribe of Oklahoma; Bordertown Bingo; Jurisdiction -- Oklahoma; Sovereign immunity -- Eastern Shawnee Tribe of Oklahoma.

*Synopsis: Workers' compensation claimant, who was employee of Indian tribe's bingo hall, appealed from a decision of the Workers' Compensation Court finding that the Workers' Compensation Court lacked subject matter jurisdiction over claimant's benefit claims.

*Holding: The Court of Civil Appeals, Robert Dick Bell, J., held that tribe's insurer was estopped from asserting tribe's sovereign immunity in defense of workers' compensation claims brought by claimant.
Vacated.

Kitras v. Town of Aquinnah
833 N.E.2d 157, Docket No. 04-P-472.
Appeals Court of Massachusetts, August 18, 2005

Subjects: Servitudes -- Massachusetts -- Aquinnah; Sovereign immunity -- United States; Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts; Land tenure -- Massachusetts -- Aquinnah; Sovereign immunity -- Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts.

*Synopsis: Owners of landlocked lots brought action for easement by necessity against neighbors, including United States, which held number of neighboring lots in trust for Native American Tribe, claiming easements by necessity. After United States was dismissed on sovereign immunity grounds, the Land Court Department, Suffolk, Mark V. Green, J., granted neighbors' motion to dismiss, and the court, Leon J. Lombardi, J., denied motion to amend to join Native American Tribe directly as a party and entered partial judgment.

*Holding: On appeal, the Appeals Court, Brown, J., held that:
(1) Commonwealth could not grant or reserve an interest in most neighboring lots because it did not own lots, and thus lack of unity of title in lots precluded landowners from obtaining implied easement by necessity over those lots;
(2) alleged implied easements by necessity were not required to traverse or otherwise burden neighboring land owned by Native American Tribe, such that United States was an indispensable party; and
(3) landowners could join Native American Tribe directly.
Reversed and remanded.

In re Joshua S.
32 Cal.Rptr.3d 693, Docket No. B170343.
Court of Appeal, Second District, California, August 15, 2005

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; Jurisdiction -- Termination -- California -- Los Angeles County; Grandmothers; Indians of North America -- Canada.

*Synopsis: Children appealed from order of the superior court terminating dependency jurisdiction after their indigent maternal grandmother with whom they lived on a Canadian Indian reservation was appointed their legal guardian. The Court of Appeal, 131 Cal.Rptr.2d 656, reversed and remanded, finding that juvenile court abused its discretion by terminating jurisdiction without considering whether termination was in children's best interests. Following remand, the Superior Court, Los Angeles County, No. CK23643, Sherri Sobel, Temporary Judge, again terminated jurisdiction. Children again appealed.

*Holding: The Court of Appeal, Rubin, J., held that:
(1) state funding for children was available, should placement be modified from guardianship to long-term foster care, and
(2) termination of dependency jurisdiction was abuse of discretion.
Reversed with directions.

Doe v. Santa Clara Pueblo
118 P.3d 203, Docket No. 25,125
Court of Appeals of New Mexico, June 28, 2005. Certiorari Granted, No. 29,350, Aug. 12, 2005.

Subjects: Kidnapping; Minors; Personal injuries; Casinos -- Pueblo of Santa Clara, New Mexico; Jurisdiction -- Pueblo of Santa Clara, New Mexico; Jurisdiction -- New Mexico; Gambling on Indian reservations -- New Mexico; Indian gaming -- Pueblo of Santa Clara, New Mexico; Intergovernmental agreements -- Pueblo of Santa Clara, New Mexico; Intergovernmental agreements -- New Mexico; United States. Indian Gaming Regulatory Act.

*Synopsis: Minor who was kidnapped from parking lot of casino on tribal land, by and through her parents and next friend, brought personal injury suit against Indian tribe. The District Court, Santa Fe County, Carol J. Vigil, D.J., denied tribe's motion to dismiss for lack of subject matter jurisdiction. Tribe brought interlocutory appeal.

*Holding: The Court of Appeals, Michael E. Vigil, J., held that:
(1) tribal-state compact which expressly shifted jurisdiction over visitors' personal injury claims to state courts was valid, and thus state court had jurisdiction over action, and
(2) state and Indian tribe acted within the scope of the Indian Gaming Regulatory Act when they formed compact which expressly shifted jurisdiction over visitors' personal injury claims to state courts.
Affirmed.

Willman v. Washington Utilities and Transportation Commission
117 P.3d 343, Docket No. 75821-2.
Supreme Court of Washington, August 11, 2005

Subjects: Public utilities -- Taxation -- Yakama Indian Nation of the Yakama Reservation, Washington; Confederated Tribes and Bands of the; Non-members of a tribe -- Yakama Indian Nation of the Yakama Reservation, Washington; Confederated Tribes and Bands of the; Washington Utilities and Transportation Commission; Franchises (Retail trade) ; Fees, Administrative.

*Synopsis: Non-Indian resident of Indian reservation and citizens' group petitioned for declaratory and injunctive relief to challenge decision of Utilities and Transportation Commission (UTC) allowing utilities which were operating on reservation to pass on cost of fee exacted by Tribal Council to all ratepayers within the reservation, including non-Indians. The Superior Court, Yakima County, Heather K. Van Nuys, J., granted utilities' motions for summary judgment. Resident and group appealed. The Court of Appeals, Kato, C.J., 122 Wash.App. 194, 93 P.3d 909, affirmed. Review was granted.

*Holding: The Supreme Court, C. Johnson, J., held that:
(1) determining that the tax was presumptively valid and could be passed on to ratepayers was not arbitrary and capricious;
(2) treating the fee as a tax was not arbitrary and capricious; and
(3) the tax did not violate statutory prohibition against discrimination.
Affirmed.

Lamere v. The Superior Court
31 Cal.Rptr.3d 880, Docket No. E036474.
Court of Appeal, Fourth District, Division 2, California, August 8, 2005
U.S. Supreme Court Petition for Certiorari Filed (March 15, 2006)

Subjects: Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation, California -- Members; Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation, California -- Membership; Disenrollment -- Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation, California; California -- Jurisdiction; United States. Public Law 280.

*Synopsis: Enrolled members of Indian band brought action alleging violation of band law and federal law against members of band's enrollment committee which had initiated disenrollment procedures against members. The Superior Court, Riverside County, No. RIC406255, Charles D. Field, J., overruled committee members' demurrer. Committee members petitioned for writ of mandate.

*Holding: The Court of Appeal, Richli, Acting P.J., held that state court had no jurisdiction under federal Public Law 280 over action.
Petition granted in part and denied in part.

In re the Children of J.L.W. and P.M.H.
2005 WL 1804833, Docket No. A05-20.
Court of Appeals of Minnesota, August 2, 2005

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; Parental rights -- Termination -- Minnesota; Evidence (Law); Family reunification -- Minnesota.

*Synopsis: (from the opinion) On appeal, appellant–father argues that the district court lacked sufficient evidence to terminate his parental rights. Specifically, he argues that the district court erred by (1) erroneously considering his incarceration status in determining that he had abandoned his children; (2) determining he had refused to comply with his parental duties; (3) determining that he was palpably unfit to parent; (4) finding that he exposed a child to egregious harm; and (5) determining that the children were neglected and in foster care. Appellant further argues that the district court erred in concluding that the county had provided active efforts, as required by the Indian Child Welfare Act, to reunify the family. Because the district court had sufficient evidence to terminate appellant’s parental rights and because the county’s efforts to unify the family were futile, we affirm.

*Holding: not available

July

Wendell C. II v. State of Alaska
118 P.3d 1, Docket Nos. S-11601, S-11604.
Supreme Court of Alaska, July 29, 2005

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

*Synopsis: Parents appealed judgment of the Superior Court, Second Judicial District, Kotzebue, Richard H. Erlich, J., terminating parental rights to their four children, who were Indian children for purposes of the Indian Child Welfare Act (ICWA).

*Holding: : The Supreme Court, Matthews, J., held that:
(1) admissible evidence supported finding that parents failed to remedy conduct and conditions within a reasonable time, and
(2) evidence supported finding that child protection department made active efforts to reunify parents with their children.
Affirmed.

State of Minnesota v. Jones
700 N.W.2d 556, Docket No. A05-365.
Court of Appeals of Minnesota, July 26, 2005.

Subjects: Jurisdiction -- Minnesota; Leech Lake Band (Minn.) -- Members; Indians of North America -- On Indian reservations -- Leech Lake Band (Minn.); Kidnapping; Criminal registers -- Minnesota.

*Synopsis: Native American previously convicted of kidnapping, who had been charged under predatory-offender registration statute with felonies of failing to notify Bureau of Criminal Apprehension (BCA) of his change of address and failing to complete, sign and return to the BCA the requisite address verification forms, moved to dismiss charges on ground that state courts lacked subject matter jurisdiction to enforce cited provisions of statute against him. The District Court, Cass County, John P. Smith, J., granted motion. State appealed.

*Holding: The Court of Appeals, Gordon W. Shumaker, J., held that state lacked subject-matter jurisdiction to enforce statute against Native American living on Indian reservation, as statute was "civil/regulatory" in nature.
Affirmed.

Citizens to Enforce CEQA v. City of Rohnert Park
33 Cal.Rptr.3d 208, Docket No. MMXCV054002923S.
Court of Appeal, First District, Division 1, California, July 25, 2005

Subjects: Citizens to Enforce CEQA; California. California Environmental Quality Act; Intergovernmental agreements -- Federated Indians of Graton Rancheria, California (formerly the Graton Rancheria); Intergovernmental agreements -- Rohnert Park (Calif.); Gambling on Indian reservations -- California; Indian gaming -- Federated Indians of Graton Rancheria, California (formerly the Graton Rancheria); Referendum -- Rohnert Park (Calif.); Casinos -- Design and construction -- Federated Indians of Graton Rancheria, California (formerly the Graton Rancheria).

*Synopsis: Citizens group and two individuals opposed to construction of casino by Indian tribe filed petition for writ of mandate, seeking to force city to comply with provisions of California Environmental Quality Act (CEQA) before entering into memorandum of understanding (MOU) with tribe regarding funding of possible public improvements. Developer was named real party in interest. The Superior Court, Sonoma County, No. 233809, Robert S. Boyd, P.J., sustained demurrers of city and developer and dismissed action. Plaintiffs appealed.

*Holding:The Court of Appeal, Marchiano, P.J., held that:
(1) MOU was not "project" requiring CEQA compliance;
(2) MOU was not preempted by federal or state law; and
(3) plaintiffs were not entitled to amend their petition.
Affirmed.

Beecher v. MTIC, LLC FKA
2005 WL 1971223, Docket No. MMXCV054002923S.
Superior Court of Connecticut, July 18, 2005

Subjects: Employees, Dismissal of -- Mohegan Indian Tribe of Connecticut; Sovereign immunity -- Mohegan Indian Tribe of Connecticut; Indian gaming -- Pennsylvania; Gambling on Indian Reservations -- Mohegan Indian Tribe of Connecticut.

*Synopsis: (from the opinion) The plaintiffs rely on Confederated Tribes of Colville Reservation Tribal Credit v. White, 139 F.3d 1268 (9th Cir.1998), for the proposition that a tribe, by filing an action, waives immunity from “inevitable consequences” of having filed the first action.

*Holding: not available

The People of South Dakota in the Interest of O.S.
701 N.W.2d 421, Docket No. 23420
Supreme Court of South Dakota, July 13, 2005.

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; Evidence, Expert -- South Dakota; Evidence (Law); Family reunification -- South Dakota.

*Synopsis: A petition was filed to terminate mother's parental rights to Indian child. The Circuit Court of the Seventh Judicial Circuit, Pennington County, Jeff W. Davis, J., terminated parental rights. Mother appealed.

*Holding: The Supreme Court, Meierhenry, J., held that:
(1) trial court qualification of State witness as an Indian Child Welfare Act (ICWA) expert was not an abuse of discretion;
(2) trial court exclusion of telephonic testimony at the final dispositional hearing was not an abuse of discretion; and
(3) evidence supported finding that mother's continued custody of child was likely to result in serious emotional or physical damage to child.
Affirmed.

In re Guardianship of Jane E. P.
700 N.W.2d 863, Docket No. 2003AP634
Supreme Court of Wisconsin, July 7, 2005.

Subjects: Parent and child (Law); Trials (Custody of children) -- Wisconsin; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Guardian and ward -- Wisconsin; Grant County (Wis.) -- Residency requirements; Iowa County (Wis.) -- Residency requirements.

*Synopsis: Petition for guardianship and protective placement was filed by county department of social services on behalf of proposed ward. The county unified board, which was agency responsible for administering community mental health and developmental disability programs, sought dismissal of petition. The Circuit Court, Grant County, Robert P. Van De Hey, J., dismissed petition, based upon proposed ward's non-residency. Department appealed. The Court of Appeals, 275 Wis.2d 680, 687 N.W.2d 72, reversed. Board petitioned for review.

*Holding: Upon grant of petition, the Supreme Court, Ann Walsh Bradley, J., held that:
(1) National Probate Court Standards set forth appropriate procedure for department to follow in seeking transfer of guardianship, and, in an opinion by N. Patrick Crooks, J.,
(2) protective placement statute was rationally related to protecting and preserving county's and state's ability to provide services to its own bona fide residents in preference to those persons who resided in other states, and, as such, statute did not violate ward's constitutional right to travel.

In re S.W.
32 Cal.Rptr.3d 192, Docket No. C045342.
Court of Appeal, Fourth District, Division 1, California, July 6, 2005

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; Foster care placement -- California; Grandmothers; Kinship care; Foster home care -- California.

*Synopsis: County agency filed dependency petition for child. The Superior Court, San Diego County, No. EJ002465, Gary M. Bubis, Referee, placed child in foster care, rather than with maternal grandmother, at dispositional hearing. Mother appealed.

*Holding: The Court of Appeal, Nares, J., held that juvenile court lacked authority to place child with grandmother, given agency's denial of exemption from grandmother's criminal record.
Affirmed.

June

Worthington v. City Council of the City of Rohnert Park
31 Cal.Rptr.3d 59, Docket No. A107547
Court of Appeal, First District, Division 1, California, June 30, 2005.

Subjects: Intergovernmental agreements -- Federated Indians of Graton Rancheria, California (formerly the Graton Rancheria); Intergovernmental agreements -- Rohnert Park (Calif.); Gambling on Indian reservations -- California; Indian gaming -- Federated Indians of Graton Rancheria, California (formerly the Graton Rancheria); Referendum -- Rohnert Park (Calif.); Casinos -- Design and construction -- Federated Indians of Graton Rancheria, California (formerly the Graton Rancheria).

*Synopsis: An individual and citizens group filed petition for writ of mandate to place referendum on ballot regarding city's action, after city adopted memorandum of understanding (MOU) with Indian tribe, which addressed mitigation of potential impacts of a future casino project. The Superior Court, Sonoma County, No. 234080, Laurence K. Sawyer, J., denied the petition, and plaintiffs appealed.

*Holding: The Court of Appeal, Marchiano, P.J., held that city's resolution adopting MOU was an administrative act not subject to referendum.
Affirmed.

In re S.B.
30 Cal.Rptr.3d 726, Docket No. E036823
Court of Appeal, Fourth District, Division 2, California, June 30, 2005.

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; Parental rights -- Termination -- California -- San Bernardino County; Cherokee Nation -- Members; Indian children -- Genealogy.

*Synopsis: The Superior Court of San Bernardino County, No. J185176, A. Rex Victor, J., entered an order terminating mother's parental rights to her daughter. At preceding hearing, social worker first learned child had Indian ancestry, Tribe was notified and child became member of Tribe, which approved her placement with Indian foster parents. Mother appealed.

*Holding: The Court of Appeal, Richli, J., held that:
(1) mother waived claim of belated compliance with Indian ancestry inquiry;
(2) evidence was sufficient that inquiry was made, and
(3) any error in child dependency hearing in removing child before child had been admitted into Indian Tribe was harmless.
Affirmed.

Bone Shirt v. Hazeltine
700 N.W.2d 746, Docket No. 23507
Supreme Court of South Dakota, June 29, 2005.

Subjects: United States. Voting Rights Act of 1965; Voting -- United States; Indians of North America; South Dakota; Apportionment (Election law); South Dakota. Legislature -- Election districts; Suffrage; Dilution. South Dakota. Constitution.

*Synopsis: After the United States District Court of South Dakota, 336 F.Supp.2d 976, found that South Dakota legislative redistricting plan violated Voting Rights Act, the District Court, Karen E. Schreier, J., granted State's request asking that question, whether the Legislature could engage in legislative apportionment in a year other than a year after a decennial census, be certified to the South Dakota Supreme Court.

*Holding: After accepting certification, the Supreme Court, Gilbertson, C.J., and Sabers, J., held that the Legislature had the continuing obligation and duty under the South Dakota Constitution to enact a valid apportionment plan following decision by United States District Court that original plan was invalid.
Certified question answered in the affirmative.

Chayoon v. Sherlock
877 A.2d 4, Docket No. 25450
Appellate Court of Connecticut, June 28, 2005.

Subjects: Mashantucket Pequot Gaming Enterprise -- Employees; Employees, Dismissal of -- Mashantucket Pequot Tribe of Connecticut; Casinos -- Mashantucket Pequot Tribe of Connecticut; Gambling on Indian reservations; Indian gaming -- Mashantucket Pequot Tribe of Connecticut; United States. Family and Medical Leave Act of 1993; Sovereign immunity -- Mashantucket Pequot Tribe of Connecticut.

*Synopsis: Former employee brought action against employees of Indian casino, alleging wrongful termination in violation of the Family Medical Leave Act (FMLA). The Superior Court, Judicial District of New London at Norwich, Martin, J., dismissed action. Former employee appealed.

*Holding: The Appellate Court, Bishop, J., held that:
(1) Indian tribe did not waive its sovereign immunity, and
(2) allegation that casino employees violated FMLA was insufficient to strip employees of the protections of tribal immunity.
Affirmed.

In the Interest of T.C.T., A.R.T., S.C.T., and C.K.T.
165 S.W.3d 529, Docket No. WD 64744
Missouri Court of Appeals, Western District, June 28, 2005.

Subjects: Parent and child (Law); Trials (Custody of children) -- Missouri; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- Missouri -- Jackson County; Fathers; Mothers.

*Synopsis: Termination of parental rights proceeding was brought. The Circuit Court, Jackson County, Jon R. Gray, J., terminated parental rights of father and mother. Father and mother appealed.

*Holding: The Court of Appeals, Ronald R. Holliger, P.J., held that father and mother's brief failed to comply with even minimal requirements for appellate brief, thus requiring dismissal of appeal.
Appeal dismissed.

In re Aaron R.
29 Cal.Rptr.3d 921, Docket No. A107639
Court of Appeal, First District, Division 1, California, June 23, 2005.

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; Parental rights -- Termination -- California -- San Francisco; Grandmothers; Mothers; Kinship care -- California; Tribal membership.

*Synopsis: County social services department filed dependency petition regarding three children of single mother. The Superior Court, San Francisco County, No. JD003340, William Gargano, Commissioner, entered orders terminating parental rights and freeing minors for adoption, and denying grandmother's petition for modification of previous order placing one minor in foster care. Mother and grandmother appealed.

*Holding: The Court of Appeal, Swager, J., held that:
(1) grandmother had standing to appeal denial of her petition to modify;
(2) grandmother failed to make prima facie case that change in custody order would be in best interests of minor; and
(3) obligation of court to determine whether minors were members of Indian tribe was not triggered.
Affirmed.

Seminole Tribe of Florida v. McCor
903 So.2d 353, Docket No. 2D04-4062
District Court of Appeal of Florida, Second District, June 15, 2005.

Subjects: Casinos -- Accidents -- Seminole Tribe of Florida, Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations; Seminole Tribe of Florida, Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations; Jurisdiction -- Florida; Sovereign immunity -- Seminole Tribe of Florida, Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations; Liability (Law).

*Synopsis: Casino patron brought negligence action against Indian tribe, seeking damages for injuries she allegedly sustained from being struck by a chair while she was at the Indian tribe's casino. The Circuit Court, Hillsborough County, William P. Levens, J., denied tribe's motion to dismiss or for summary judgment. Tribe sought certiorari review.

*Holding: The District Court of Appeal, Canady, J., held that purchase of liability insurance by tribe did not result in waiver of tribe's immunity.
Petition granted; order quashed.

Mary U. v. State of Alaska, Department of Health and Human Services
2005 WL 1415310, Docket No. S-11456
Supreme Court of Alaska, June 15, 2005.

Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- Alaska; Testimony -- Alaska; Evidence, Expert -- Alaska; Mothers -- Alcoholism -- Alaska; Evidence (Law).

*Synopsis: Mother appealed from a decision of the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, J., that terminated mother's parental rights to her three Alaska Native children.

*Holding: The Supreme Court held that: (1) evidence supported finding that mother had not remedied, within reasonable amount of time, conduct that placed her children at risk, and (2) trial court had adequate expert testimony to support finding, under Indian Child Welfare Act (ICWA), that state had proved beyond reasonable doubt that return of children to their mother would cause children to suffer serious physical and emotional harm.
Affirmed.

In re Fessler
2005 WL 1399323, Docket Nos. 254909, 255181, 257565
Court of Appeals of Michigan, June 14, 2005.

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; Parental rights -- Termination -- Michigan; Mothers.

*Synopsis: (from the opinion) In Docket No. 254909, we affirm the termination
of respondent mother’s parental rights relative to the Ollie children, but only conditionally affirm the termination of respondent mother’s parental rights relative to Johnathon and Loretta and remand for further proceedings to determine whether petitioner can establish the proper notice under the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq.

*Holding: not available

People v. Patterson
833 N.E.2d 223, Docket No. 91
Court of Appeals of New York, June 14, 2005.

Subjects: Ice fishing -- New York (State ) -- Niagara County; Wilson-Tuscarora State Park (N.Y.); Fishery law and legislation -- New York (State); Tuscarora Nation of New York -- Members.

*Synopsis: Defendant, a member of the Tuscarora Indian Nation, was convicted in the Town of Wilson Justice Court, Robert J. Botzer, J., of ice fishing without an identifying tag on his tip-up, and he appealed. The County Court, Niagara County, Sara S. Sperrazza, J., affirmed, and defendant was granted leave to appeal.

*Holding: The Court of Appeals, Rosenblatt, J., held that Treaty of Canandaigua did not vest members of the Tuscarora Indian Nation with off-reservation fishing rights on former Seneca lands demarcated by the Treaty.

State of Connecticut v. Rost
2005 WL 1670783, Docket No. LLI18WCR040114451S
Superior Court of Connecticut, June 13, 2005.

Subjects: Schaghticoke Tribal Nation (Conn.) -- Recognition; Federal recognition of Indian tribes -- United States; Stay of proceedings (Criminal procedure) -- Connecticut; Criminal actions arising in Indian Country (Conn.) -- Schaghticoke Tribal Nation (Conn.).

*Synopsis: (from the opinion) Defendant has filed a motion for Stay of Prosecution dated November 12, 2004, arguing that the Court should stay criminal proceedings against the defendant until such time as a final decision is issued by the United States Dept. of the Interior's Bureau of Affairs on the pending application for recognition of the Schaghticoke Tribal Nation.

*Holding: not available

State of Connecticut v. Russell
2005 WL 1757010, Docket No. LLI18WCR040114452S.
Superior Court of Connecticut, Judicial District of Litchfield, June 13, 2005.

Subjects: Schaghticoke Tribal Nation (Conn.) -- Recognition; Federal recognition of Indian tribes -- United States; Stay of proceedings (Criminal procedure) -- Connecticut; Criminal actions arising in Indian Country (Conn.) -- Schaghticoke Tribal Nation (Conn.).

*Synopsis: (from the opinion) Whether a state has criminal jurisdiction over crimes committed by the defendant on an Indian reservation is controlled by the federal Indian Civil Rights Act, 25 U.S.C. Sections 1301 through 1341. Specifically, the Act preempts any exercise of state authority over a federally acknowledged Indian tribe unless that tribe has consented to state jurisdiction by a majority vote.

*Holding: not available

In re the Interest of R.E.K.F.
698 N.W.2d 147, Docket No. 72 /04-1864 & 05-0251
Supreme Court of Iowa, June 10, 2005.

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; Fathers; Notice (Law).

*Synopsis: The State filed a petition to terminate putative father's parental rights to child. The District Court, Woodbury County, Mary J. Sokolovske, J., determined that the Iowa Indian Child Welfare Act (ICWA) did not apply and terminated father's parental rights to child. Father appealed. The Court of Appeals affirmed. Father sought review.

*Holding: The Supreme Court, Streit, J., held that:
(1) exhibits attached to father's review brief were required to be stricken;
(2) the State failed to adequately comply with the notice provisions of the Iowa ICWA; and
(3) conditional affirmance of juvenile court order terminating father's parental rights, and remand for compliance with tribal notification provisions of Iowa ICWA, was proper remedy.
Affirmed on condition and remanded.

State of Washington v. Adams
2005 WL 1345669, Docket No. 31961-6-II.
Court of Appeals of Washington, Division 2, June 7, 2005.

Subjects: Skokomish Indian Tribe of the Skokomish Reservation, Washington -- Members; Jurisdiction -- Washington; Skokomish Indian Tribe of the Skokomish Reservation, Washington -- Boundaries -- Defined.

*Synopsis: (from the opinion) As a member of the Skokomish Indian Tribe, Adams argues that the trial court lacked jurisdiction to enter convictions based on his guilty pleas. More specifically, he argues the trial court erred in ruling that (1) his crimes occurred outside his tribe's treaty area, (2) he should have asserted this jurisdictional defense before entering his guilty pleas, and (3) his motion was untimely. Finding no lack of jurisdiction or abuse of trial court discretion, we affirm.

*Holding: not available

Rolette County Social Service Board v. B.E.
697 N.W.2d 333, Docket No. 20040357
Supreme Court of North Dakota, June 2, 2005.

Subjects: Parent and child (Law); Trials (Custody of children) -- North Dakota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Child support; Mothers; Jurisdiction -- North Dakota; Jurisdiction -- Turtle Mountain Band of Chippewa Indians of North Dakota; Concurrent jurisdiction -- North Dakota; Concurrent jurisdiction -- Turtle Mountain Band of Chippewa Indians of North Dakota; Turtle Mountain Band of Chippewa Indians of North Dakota -- Members.

*Synopsis: State Department of Human Services and county social service board brought action against mother, seeking to establish child support obligation regarding children, who were members of Indian tribe. The District Court, Rolette County, Northeast Judicial District, Lester Ketterling, J., granted mother's motion to dismiss for lack of subject-matter jurisdiction. Board and Department appealed.

*Holding:The Supreme Court, Kapsner, J., held that:
(1) order that dismissed action without prejudice was final and appealable, and
(2) state court had concurrent jurisdiction with tribal court to establish mother's child support obligation.
Reversed and remanded.

Wells v. Wells
698 N.W.2d 504, Docket No. 23336
Supreme Court of South Dakota, June 1, 2005.

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; Child support; Jurisdiction -- South Dakota; Divorce suits -- South Dakota.

*Synopsis: After the Department of Social Services, Office of Child Support Enforcement began seeking past due child support from father, who was a member of an Indian tribe, father filed a motion to vacate divorce decree that awarded mother child support. The Circuit Court of the Seventh Judicial Circuit, Pennington County, John J. Delaney, J., denied the motion. Father appealed.

*Holding:The Supreme Court, Konenkamp, J., held that the issue of whether the Circuit Court had subject matter and personal jurisdiction over father during divorce proceeding was previously litigated and determined, and thus the child support judgment in divorce decree was res judicata.
Affirmed.

May

In re Fried
702 N.W. 2d 192, Docket No. 258432
Court of Appeals of Michigan, May 24, 2005

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; Parental rights -- Termination -- Michigan; Fathers; Michigan. Family Independence Agency; Family reunification; Conflict of interests.

*Synopsis: Family Independence Agency (FIA) petitioned to terminate father's parental rights. The Circuit Court, Ingham County, Albert J. Neukom, J., granted petition. Father appealed.

*Holding: The Court of Appeals, Kelly, P.J., held that:
(1) Indian Child Welfare Act (ICWA) was not applicable to termination proceeding;
(2) evidence supported finding that no reasonable likelihood existed that the conditions leading to adjudication of father's parental rights would be rectified in a reasonable time considering child's age;
(3) record supported finding that FIA made reasonable efforts were made to preserve and reunify the family prior to seeking termination of father's parental rights;
(4) record did not support finding that termination proceeding was influenced by a conflict of interest stemming from position of child's foster parent's position in the FIA; and
(5) evidence supported finding that termination of father's parental rights was in child's best interests.
Affirmed.

Wright v. Colville Tribal Enterprise Corporation
111 P.3d 1244, Docket No. 53950-7-I
Court of Appeals of Washington, Division 1, May 23, 2005

Subjects: Race discrimination -- Off Indian reservations -- Washington (State); Jurisdiction -- Washington (State); Sovereign immunity -- Colville Tribal Enterprise Corporation (Wash.); Sovereign immunity -- Colville Tribal Services Corporation (Wash.).

*Synopsis: Non-Indian employee brought action against his supervisor and two corporate Indian entities, alleging race discrimination, racial harassment, hostile work environment, negligent supervision, and negligent infliction of emotional distress. Defendants moved to dismiss, based on lack of subject matter jurisdiction, and tribal sovereign immunity. The Superior Court, Island County, Vickie Churchill, J., granted the motion to dismiss. Employee appealed.

*Holding: The Court of Appeals, Appelwick, J., held that:
(1) court had subject matter jurisdiction over employee's claims;
(2) corporate Indian entities did not enjoy Indian tribe's governmental sovereign immunity from suit; and
(3) supervisor did not enjoy tribe's governmental sovereign immunity from suit.
Reversed and remanded.

Foreman v. Department of Revenue
2005 WL 1432450, Docket No. TC-MD 040844D
Oregon Tax Court, Magistrate's Division, May 16, 2005

Subjects: Indian Country (Or.) -- Defined; Klamath Indian Tribe of Oregon -- Boundaries -- Defined; Restricted lands -- Defined -- Klamath Indian Tribe of Oregon; Trust lands -- Defined -- Klamath Indian Tribe of Oregon; Indian allotments -- Defined -- Klamath Indian Tribe of Oregon; Tax exemption -- Oregon.

*Synopsis: (from the opinion) After carefully reviewing the stipulated facts and analyzing the statutes in historical context with case law, the court finds that Plaintiffs do not live in Indian country because their Property is not within the Klamath Indian Tribe Reservation and is not a trust or restricted allotment. Now, therefore, IT IS THE DECISION OF THIS COURT that the income earned by Plaintiff, Allen Foreman, is not exempt from state taxation for tax years 2001 and 2002.

*Holding: not available

In re the Adoption of B.G.J.
111 P.3d 651, Docket No. 91,997
Court of Appeals of Kansas, May 13, 2005

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; Intervention (Civil procedure).

*Synopsis: In adoption proceeding, the District Court, Johnson County, Lawrence E. Sheppard, J., granted Indian tribe's motion to intervene, determined that Indian Child Welfare Act (ICWA) applied to child's placement, determined that prospective adoptive parents had satisfied their burden of establishing good cause for deviation from ICWA's placement preferences, and granted prospective adoptive parents' adoption petition. Tribe appealed.

*Holding: The Court of Appeals, Hill, J., held that:
(1) in a matter of first impression, Court of Appeals would apply abuse of discretion standard in reviewing trial court's finding that good cause existed to deviate from ICWA's placement preferences, and
(2) good cause existed for deviation from ICWA's adoptive placement preferences.
Affirmed.

Jonathon S. v. Tiffany S.
28 Cal.Rptr.3d 495, Docket No. E037183
Court of Appeal, Fourth District, Division 2, California, May 11, 2005

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; Mothers; Notice (Law); Jurisdiction -- California.

*Synopsis: Order terminating a mother's parental rights was entered in dependency proceedings in the Superior Court, Riverside County, Becky L. Dugan, J., and mother appealed.

*Holding:The Court of Appeal, Richli, J., held that:
(1) mother had standing to contend that juvenile court erred by failing to ensure that notice was given in accordance with Indian Child Welfare Act (ICWA), and
(2) Court of Appeal had jurisdiction to reverse only the order terminating mother's parental rights, and not any earlier orders.
Reversed and remanded.

Eastlander Group, LLC v. Severin Hills, LLC
2005 WL 1331206, Docket No. X06CV044003573S
Superior Court of Connecticut, May 10, 2005

Subjects: Eastlander Group, LLC; Severin Hills (LLC); Native American Gaming Fund; Contracts; Undue influence; Conspiracy; Sovereign immunity -- Schaghticoke Tribal Nation (Conn.); Schaghticoke Tribal Nation (Conn.) -- Recognition; Federal recognition of Indian tribes -- United States; Gambling on Indian reservations -- Connecticut; Indian gaming -- Schaghticoke Tribal Nation (Conn.).

*Synopsis: (from the opinion) The plaintiff Eastlander Group, LLC (Eastlander) has brought this action against the defendants Severin Hills, LLC (Severin Hills), The Native American Gaming Fund, Inc., and Dean Markham alleging that the defendants tortiously interfered with the plaintiff's contract with the Schaghticoke Tribal Nation pursuant to which the plaintiff was to assist the Tribe with achieving federal recognition in return for substantial monetary sums that would be generated from the expected gaming facility which would result. As the complaint alleges that he was acting as an agent for the Tribe, Markham has moved to dismiss the claims against him of tortious interference and civil conspiracy on the grounds that he is immune from suit due to the Tribe's sovereign immunity.

*Holding: not available

Alliance for Native American Indian Rights in Tennessee, Inc. v. Nicely
182 S.W.3d 333, Docket No. M2002-02555-COA-R3-CV
Court of Appeals of Tennessee, May 10, 2005

Subjects: Alliance for Native American Indian Rights in Tennessee; Burial sites -- Tennessee; Roads -- Design and construction -- Tennessee; Tennessee. Dept. of Transportation; Exhumation -- Tennessee; Burial sites -- Relocation -- Tennessee; Equality before the law -- United States; Due process of law -- United States; United States. Constitution. 14th Amendment.

*Synopsis: Four Native American individuals and non-profit organization dedicated to preserving Native American burial grounds brought § 1983 action against the Commissioner of Transportation, alleging that Department of Transportation's plans to reinter Native American remains discovered during construction to widen a road violated their rights under the Due Process and Equal Protection Clauses, and seeking an injunction. The Chancery Court, Davidson County, Irvin H. Kilcrease, Jr., Chancellor, dismissed complaint for failure to state a claim. Plaintiffs appealed.

*Holding: The Court of Appeals, William C. Koch, Jr., P.J., M.S., held that: (1) action was rendered moot by completion of construction project, and (2) plaintiffs failed to show that there was a demonstrable probability that controversy would reoccur, and thus capable of repetition yet evading review exception to mootness doctrine did not apply.
Appeal dismissed.

Dalton v. Pataki
835 N.E.2d 1180, Docket No. 2005AP020015
Court of Appeals of New York, May 3, 2005

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

*Synopsis: Consolidated actions were brought by group of citizen taxpayers, state legislators, and nonprofit organizations 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 for defendants, and plaintiffs appealed. The Supreme Court, Appellate Division, 11 A.D.3d 62, 780 N.Y.S.2d 47, affirmed but modified by declaring provision related to video lottery terminals (VLTs) unconstitutional. Plaintiffs appealed, and defendants cross-appealed.

*Holding: The Court of Appeals, Ciparick, J., held that:
(1) New York's constitutional proscription on commercial gaming was preempted by Indian Gaming Regulatory Act (IGRA) to extent that it would prohibit state legislature from authorizing governor to enter tribal-state gaming compacts;
(2) legislature could authorize governor to enter tribal-state compacts with unnamed Indian tribes on non-Indian lands;
(3) video lottery gaming was lottery within meaning of state constitution;
(4) statute permitting use of VLTs at certain racetracks, and allowing only certain local legislatures to vote to give prior approval for installation of VLTs, did not violate equal protection clause;
(5) reinvestment provision of statute permitting VLTs at racetracks was constitutional; and
(6) state's participation in multi-jurisdictional lottery was constitutional.
Affirmed as modified.

Amalgamated Industries, Inc. v. Historic Eastern Pequot Tribe
2005 WL 1273562, Docket No. X03CV034000287
Superior Court of Connecticut, District of New Britain, Complex Litigation Docket, May 2, 2005

Subjects: Breach of contract -- Paucatuck Eastern Pequot Indians of Connecticut; Paucatuck Eastern Pequot Indians of Connecticut; Amalgamated Industries; Casinos -- Design and construction -- Connecticut; Connecticut. Unfair Trade Practices Act; United States. Indian Gaming Regulatory Act; Indian gaming -- Connecticut; Gambling on Indian reservations -- Connecticut.

*Synopsis: (from the opinion)This action arises out of an alleged breach of contract by the defendants, the Paucatuck Eastern Pequots, a/k/a Paucatuck Eastern Pequot Tribal Nation (PEPs); James A. Cunha, Jr.; Frances M. Young; Agnes E. Cunha; Gina M. Hogan; Eugene R. Young, Jr.; Beverly Kilpatrick; James L. Williams, Sr.; and Christine C. Meisner (PEP councillors). FN1 The plaintiff, Amalgamated Industries, Inc., filed an eighteen-count complaint on July 10, 2003, alleging, inter alia, breach of contract (counts one through five), conversion (count six), breach of implied covenant of good faith and fair dealing (count seven), tortious interference with contract (count eight), tortious interference with business relations (count nine), commercial disparagement (count ten), civil conspiracy (count eleven), and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes 42-110a et seq. (count twelve). The plaintiff also sets forth five alternative claims against the defendants. As alternative grounds for recovery against the Historic Eastern Pequot Tribe, a/k/a Eastern Pequot Tribal Nation (Historics), including and consisting of the [PEPs] and Easterns, the plaintiff claims successor liability (count fourteen), breach of implied contract (count sixteen), quantum meruit/unjust enrichment (count seventeen), and promissory estoppel (count eighteen). As its remedies, the plaintiff seeks a mandatory injunction (count thirteen, reformation of contract (count fifteen), specific performance, a prohibitive injunction, money damages, punitive damages, attorneys fees and costs, reimbursement of sums paid for and on behalf of the defendants; and imposition of a constructive trust (count seventeen).

*Holding: not available

Trump Hotels and Casino Resorts Development Company, LLC v. Rosow
2005 WL 1273260, Docket No. X03CV034000160S See related opinions
2005 WL 1273521, Trump Hotels
2005 WL 1273574, Trump Hotels
2005 WL 1273574, Trump Hotels
Superior Court of Connecticut, Judicial District of New Britain, May 2, 2005

Subjects: Breach of contract -- Paucatuck Eastern Pequot Indians of Connecticut; Paucatuck Eastern Pequot Indians of Connecticut; Casinos -- Design and construction -- Connecticut; Connecticut. Unfair Trade Practices Act; United States. Indian Gaming Regulatory Act; Indian gaming -- Connecticut; Gambling on Indian reservations -- Connecticut; Trump Hotels and Casino Resorts Development Co., LLC.

*Synopsis: (from the opinion) This action arises out of an alleged breach of contract by the defendants, the Paucatuck Eastern Pequot Tribal Nation (PEPs) and members of its tribal council, James L. Williams, Sr., James A. Cunha, Jr., Frances M. Young, Agnes E. Cunha, Gina Hogan, Christine C. Meisner, Brenda L. Geer, Raymond A. Geer and Eugene R. Young, Jr. (PEP councillors). The plaintiff, Trump Hotels and Casino Resorts Development Company, LLC (Trump), filed a nine-count complaint on June 24, 2003, alleging violations of Connecticut Unfair Trade Practices Act (CUTPA), General Statutes 42-110a et seq. (count one), intentional interference with contractual, economic and business relationships (count two), civil conspiracy and fraud (count three), default payment (count four), breach of contract (count five), and fraud as against defendant Young (count seven). As its remedies, the plaintiff seeks specific performance (count six), a prohibitive injunction (count eight) and a mandatory injunction (count nine).

*Holding: not available

April

In re Lindsay Hortsmann
2005 WL 1038857, Docket No. 2005AP020015
Court of Appeals of Ohio, Fifth District, Tuscarawas County, April 29, 2005

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

*Synopsis: Department of Job and Family Services petitioned for temporary custody of Native American child, alleging that child was dependent. The Court of Common Pleas, No. 04JN00563, adjudicated child as dependent, and mother appealed.

*Holding: The Court of Appeals, Tuscarawas County, Sheila G. Farmer, J., held that:
(1) evidence supported adjudication of dependency, and
(2) trial court did not lack jurisdiction to preside over dependency proceedings.
Affirmed.

In re the Matter of A.D.L., J.S.L., C.L.L
612 S.E.2d 639, Docket No. COA03-1333
Court of Appeals of North Carolina, April 19, 2005.

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

*Synopsis: Department of social services filed petition to terminate mother's parental rights to her children. The District Court, Guilford County, Wendy M. Enochs, J., granted petition. Mother appealed.

*Holding: The Court of Appeals, Bryant, J., held that:
(1) trial court's error in failing to file adjudication and disposition orders within 30 days of termination hearing was harmless;
(2) failure of record to disclose guardian ad litem appointment papers did not necessitate reversal of decision to terminate mother's parental rights;
(3) Indian Child Welfare Act (ICWA) did not apply in proceeding to terminate mother's parental rights;
(4) factual allegations in petition to terminate mother's parental rights were sufficient to put her on notice regarding issues in petition, including issue of neglect;
(5) clear, competent, convincing evidence supported termination of mother's parental rights based on neglect; and
(6) termination of mother's parental rights to children was in children's best interests.
Affirmed.

Alaska Inter-Tribal Council v. State of Alaska
110 P.3d 947, Docket No. S-10844
Supreme Court of Alaska, April 15, 2005.

Subjects: Alaska Inter-Tribal Council; Alaska; Police services for Alaska Native villages; Law enforcement -- Alaska; Police, Rural -- Alaska; Alaska Native villages -- Off the road system; Constitutional law -- Alaska; Equality before the law -- Alaska; Constitutional law -- United States; Alaska. Dept. of Public Safety; Jurisdiction; Offenses against public safety -- Alaska -- Prevention; Alaska. Division of State Troopers; Resource allocation; Race discrimination.

*Synopsis: Residents of "off-road," predominantly Alaska Native communities, sued the state for allegedly violating their federal and state rights to equal protection of the law by adopting a discriminatory system of law enforcement that favored communities on the state road system. The state moved for summary judgment, and the Superior Court, Third Judicial District, Dillingham, Sharon L. Gleason and Karen L. Hunt, JJ., granted the motion in favor of the state as to residents' federal equal protection claims of disparate impact and de jure discrimination, and as to residents' state equal protection claim. Residents appealed.

*Holding: The Supreme Court, Eastaugh, J., held that:
(1) residents failed to prove that the state adopted or established a de jure discriminatory law enforcement system;
(2) residents failed to establish prima facie case of discrimination based on race; and
(3) residents failed to establish that they were similarly situated with communities on the state road system.
Affirmed.

State of Washington v. Posenjak
111 P.3d 1206, Docket No. 22856-8-III
Court of Appeals of Washington, Division 3, April 14, 2005.

Subjects: Big game animals -- Washington; Hunting; Elk; Kittitas County (Wash.); Hunting rights; Treaty of Point Elliott (1855); Treaty rights; Snoqualmoo Tribe (Wash.); Snoqualmoo Tribe (Wash.)-- Members.

*Synopsis: Defendant was convicted in a bench trial in the Superior Court, Douglas County, John Hotchkiss, J., of unlawful hunting of big game. Defendant appealed.

*Holding: The Court of Appeals, Kurtz, J., held that:
(1) defendant failed to establish that he had Indian treaty rights to hunt elk;
(2) police officer's testimony regarding elk carcass was admissible under open view doctrine; and
(3) defendant's incriminating statements were admissible.
Affirmed.

March

In re the Matter of A.G., W.G., T.A., J.A.
109 P.3d 756, Docket No. 04-357
Supreme Court of Montana, March 30, 2005

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; Indian children -- Defined.

*Synopsis: Following a hearing, the District Court, Fourth Judicial District, County of Missoula, Ed McLean, J., concluded that children were not "Indian children" under federal Indian Child Welfare Act (ICWA) and terminated mother's parental rights. Mother appealed.

*Holding: The Supreme Court, Brian Morris, J., held that absent conclusive determination by Indian tribes that children were not members or were not eligible for membership in tribes, mother's parental rights could not be terminated.
Reversed and remanded.

In re the Welfare of the Children of J.B. and G. A.-C., and T. F.
698 N.W.2d 160, Docket No. 2003AP634
Court of Appeals of Minnesota, March 30, 2005.

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; Fathers; Tribal membership; Evidence, Expert; Evidence (Law).

*Synopsis: Department of Children and Family Services (DCFS) sought to terminate father's parental rights to Indian child in accordance with the Indian Child Welfare Act (ICWA). The District Court, Hennepin County, terminated parental rights. Father appealed.

*Holding: The Court of Appeals, Poritsky, J., held that:
(1) father was not permitted to unenroll child from mother's tribe under ICWA;
(2) individual qualified as an expert under the ICWA;
(3) evidence was sufficient to support finding that termination of parental rights was in child's best interest;
(4) DCFS made active efforts to avoid breakup of Indian family;
(5) trial court did not abuse discretion in bifurcating mother and father's proceedings; and
(6) father's tribe received notice of proceeding.
Affirmed.

In re Jasmine G.
26 Cal.Rptr.3d 394, Docket No. G033900
Court of Appeal, Fourth District, California, March 28, 2005

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; Notice (Law); Law -- California.

*Synopsis: At selection and implementation hearing, the Superior Court, Orange County, No. DP008204, Dennis Keough, Temporary Judge, ordered termination of mother's parental rights with regard to her daughter. Mother appealed.

*Holding: The Court of Appeal, Bedsworth, Acting P.J., held that:
(1) mother was denied due process when her parental rights were terminated without notice of selection and implementation hearing, and
(2) evidence was sufficient to support the finding that Indian Child Welfare Act (ICWA) did not apply.
Reversed and remanded.

State of New Mexico v. Martinez
112 P.3d 293, Docket No. 24,470
Court of Appeals of New Mexico, March 23, 2005

Subjects: Drunk driving -- New Mexico; Suppression of evidence -- New Mexico; Cross-commissioned police -- New Mexico; Intergovernmental agreements -- Tribes -- New Mexico; Intergovernmental agreements -- New Mexico.

*Synopsis: Defendant entered conditional guilty plea was convicted in the District Court, McKinley County, Joseph L. Rich, D.J., of driving while intoxicated (DWI). Defendant appealed denial of motion to suppress evidence.

*Holding: The Court of Appeals, Pickard, J., held that:
(1) defendant waived claim that tribal officer who performed traffic stop on non-Indian land was not authorized to be cross-commissioned as a county deputy sheriff, and
(2) statute authorizing tribal officers to act as state peace officers by commission did not apply to commissions by county sheriffs.
Affirmed.

Columbia Falls Elementary School District No. 6 v. State
109 P.3d 257, Docket No. 04-390
Supreme Court of Montana, March 22, 2005

Subjects: Public schools -- Finance -- Montana; Columbia Schools Elementary School District (Mont.); Montana School Boards Association; Montana Rural Education Association; School Administrators of Montana; Indian students; American Indian education; Constitutional law.

*Synopsis:Coalition of schools, education groups, and parents brought action challenging administration and funding of state public school system, on state constitutional grounds. The District Court, First Judicial District, Lewis and Clark County, Jeffrey M. Sherlock, P.J., found that current system violated Public Schools Clause of state constitution. State appealed, and coalition cross-appealed.

*Holding: The Supreme Court, W. William Leaphart, J., held that:
(1) instant case presented justiciable issue, rather than non-justiciable political question;
(2) funding system for public schools established by state legislature was constitutionally inadequate;
(3) educational product of state public school system did not satisfy state constitutional requirement that state provide quality public education;
(4) it would defer to state legislature to provide threshold definition of state constitutional requirement that legislature fund a "quality" educational system; and
(5) vacation of district court's denial of attorney fees to coalition was required.
Affirmed in part; vacated in part; remanded with directions.

State v. Debrah F. (In re the Termination of parental rights to Branden F.)
695 N.W.2d 905, Docket No. 04-2560
Court of Appeals of Wisconsin, March 22, 2005

Subjects: Parent and child (Law); Trials (Custody of children) -- Wisconsin; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Jurisdiction -- White Earth Band of Chippewa (Minn.); Instructions to juries -- Wisconsin.

*Synopsis: (from the opinion) Debra F. appeals from an order terminating her parental rights to her son, Branden F., born October 20, 1998. She also appeals from an order denying her postdisposition motion. Debra claims: (1) the trial court erred when it denied the motion to transfer this termination case to the tribal court; (2) the trial court erred when it modified language from the Indian Child Welfare Act ("ICWA") in formulating jury instructions and the special verdict questions; and (3) her trial counsel provided ineffective assistance. Because each issue is resolved in favor of upholding the orders, this court affirms.

*Holding: not available

Kennewick Public Hospital District v. Pollution Control Hearings Board
2005 WL 697224, Docket Nos. 22741-3-III, 22742-1-III, 22758-8-III
Court of Appeals of Washington, Division Three, March 17, 2005

Subjects: Washington (State). Dept. of Ecology; Water rights -- Columbia River; Nez Perce Tribe of Idaho; Umatilla Reservation, Confederated Tribes of the, Oregon; Yakama Indian Nation of the Yakima Reservation, Washington; Washington (State). Pollution Control Hearings Board; Kennewick Irrigation District (Wash.); Mercer Ranches; Kennewick Public Hospital District (Wash.); Salmon; Steelhead (Fish); Wildlife conservation; United States. National Marine Fisheries Service; United States. Endangered Species Act of 1973; Confederated Tribes of the Warm Springs Reservation, Oregon; Columbia River.

*Synopsis: (from the opinion) The Department of Ecology (Ecology) approved five applications for surface water rights from the Columbia River. The Confederated Tribes of the Umatilla Indian Reservation (Umatilla Tribes), the Nez Perce Tribe, and the Yakama Nation appealed the approvals to the Pollution Control Hearings Board (PCHB). The PCHB reversed Ecology's approvals, finding it failed to adequately consult with the Indian tribes as required by WAC 173-531A-060 and WAC 173-563-020(4). The applicants, Kennewick Irrigation District (KID), Mercer Ranches (Mercer), and Kennewick Public Hospital District (KPHD), as well as Ecology, appeal. We affirm.

*Holding: not available

State v. Nona M. (In re Brittany C.)
693 N.W.2d 592, Docket Nos. A-04-820 through A-04-826
Court of Appeals of Nebraska, March 15, 2005

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

*Synopsis: Numerous petitions were filed by Department of Health and Human Services (DHHS) alleging that mother's four children were neglected. Mother applied to enroll children in Indian tribe. Following children's enrollment in tribe, the tribe filed motions to intervene in these matters. Trial court and parties treated hearing on tribe's request to intervene as hearing on transfer of cases to tribal court. The County Court, Scotts Bluff County, G. Glenn Camerer, J., denied request to transfer jurisdiction to tribe. Mother appealed.

*Holding: The Court of Appeals, Cassell, J., held that:
(1) orders denying mother's requests to transfer jurisdiction to tribal court were final, appealable orders, and
(2) trial court's decision not to transfer jurisdiction over neglect petitions to tribal court was not abuse of discretion.
Affirmed.

Hatcher v. Harrah's NC Casino Company, LLC
610 S.E.2d 210, Docket No. COA04-823
Court of Appeals of North Carolina, March 15, 2005

Subjects: Harrah's Cherokee Casino (N.C.); Casinos -- Eastern Band of Cherokee Indians of North Carolina; Prize money; Deception; Eastern Band of Cherokee Indians of North Carolina. Gaming Commission; Jurisdiction -- Jackson County (N.C.); United States. Indian Gaming Regulatory Act.

*Synopsis: Patron of Indian tribe's casino brought action against management company, alleging that company had refused to pay a jackpot he won from gaming machine, and alleging company had engaged in unfair and deceptive trade practice and fraud. The District Court, Jackson County, Danny E. Davis, J., granted company's motion to dismiss based on lack of subject matter jurisdiction. Patron appealed. The Court of Appeals, 151 N.C.App. 275, 565 S.E.2d 241, reversed in part and remanded. On remand, the District Court, Jackson County, Richlyn D. Holt, J., again granted company's motion to dismiss for lack of subject matter jurisdiction. Patron appealed.

*Holding:The Court of Appeals, Timmons-Goodson, J., held that:
(1) exercise of state court jurisdiction in action would unduly infringe on the self-governance of the tribe, and
(2) compact between Indian tribe and State did not grant civil jurisdiction to the State with respect to parties' dispute.
Affirmed.

In re Welfare of the Children of J.B.
698 N.W.2d 160, Docket No. A04-973
Court of Appeals of Minnesota, March 11, 2005

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; Witnesses; Expert testimony; Tribal membership.

*Synopsis: County sought to terminate parental rights of mother and father, who were Indian parent within the meaning of the Indian Child Welfare Act (ICWA) but from different tribes. The District Court, Hennepin County, terminated parental rights. Father appealed.

*Holding: The Court of Appeals, Poritsky, J., held that:
(1) trial court was required to treat child as a member of mother's tribe;
(2) witness was qualified as an expert for purposes of ICWA;
(3) expert's testimony regarding tribal child-rearing practices was within her area of expertise;
(4) court was not required to consider placement of child with father's extended family;
(5) father's tribe had adequate notice of proceedings; and
(6) court did not abuse its discretion in denying father a continuance.
Affirmed.

In re SNK: Northern Arapahoe Tribe v. The State of Wyoming
108 P.3d 836, Docket No. C-04-8
Supreme Court of Wyoming, March 10, 2005

Subjects: Parent and child (Law); Trials (Custody of children) -- Wyoming; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Northern Arapaho Tribe of the Wind River, Reservation, Wyoming; Northern Arapaho Tribe of the Wind River, Reservation, Wyoming -- Members; Foster home care.

*Synopsis: Indian tribe filed motion to vacate foster care placement of Indian child with her ex-stepfather. The District Court, Park County, Hunter Patrick, J., deemed the motion denied based on inaction. Tribe appealed, and state filed motion to dismiss appeal as moot.

*Holding: The Supreme Court, Voigt, J., held that removal of child from custody of her ex-stepfather and placement with her mother rendered tribe's appeal moot.
Appeal dismissed.

Francis v. Dana-Cummings
868 A.2d 196, Docket No. WAS-04-477
Supreme Judicial Court of Maine, March 10, 2005

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

*Synopsis: Tenant sued tribal housing authority to recover damages for an alleged illegal eviction, and brought separate action for the same relief against the housing authority's executive director. Actions were consolidated. The Superior Court, Washington County, Gorman, J., granted summary judgment in favor of executive director, but denied housing authority's motion for summary judgment. Housing authority and tenant appealed.

*Holding: The Supreme Judicial Court, Rudman, J., held that:
(1) the dispute between housing authority and tenant was not an "internal tribal matter" protected from state-court interference under the Maine Indian Claims Settlement Act, and
(2) executive director could not take advantage of the protection afforded by the Act's "internal tribal matters" provision.
Affirmed; vacated and remanded.

Taylor, Costine, and Carpenter v. Texas Department of Protective and Regulatory Services
160 S.W.3d 641
Docket No. 03-03-00467-CV
Court of Appeals of Texas, Austin, March 10, 2005.

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; Foster home care; Adoption; Grandparents.

*Synopsis: Department of Protective and Regulatory Services brought action to terminate parental rights of out-of-wedlock child. The 146th District Court, Bell County, Gordon G. Adams, J., terminated parental rights, denied conservatorship to paternal grandmother, and awarded sole conservatorship to Department of Protective and Regulatory Services. Parents and grandmother appealed.

*Holding: The Court of Appeals, Bob Pemberton, J., held that:
(1) evidence was sufficient to support termination of father's parental rights;
(2) error, if any, in submitting single broad-form question incorporating multiple alternative grounds for termination was harmless;
(3) social worker was sufficiently qualified to conduct court-ordered home study and testify; and
(4) evidence was sufficient to establish that grant of managing conservatorship to grandmother was not in best interest of child.
Affirmed.

In re Dependency of T.L.G. and C.L.G.
108 P.3d 156, Docket Nos. 53656-7-I, 53750-4-I, 53751-2-I, 53793-8-I
Court of Appeals of Washington, Division 1, March 7, 2005

Subjects: Parent and child (Law); Trials (Custody of children) -- Washington; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Notice (Law); Washington (State). Dept. of Social and Health Services; Indians of North America -- Washington (State) -- Services for.

*Synopsis: State department of social and health services filed dependency petitions on two siblings, the younger of whom had special medical needs owing to disabilities suffered since birth. The Superior Court, Snohomish County, Richard J. Thorpe, J., terminated parental rights. Parents appealed.

*Holding: The Court of Appeals, Ellington, A.C.J., held that:
(1) given possibility that children were Indian, failure to notify tribe or Bureau of Indian Affairs of dependency proceeding violated Indian Child Welfare Act;
(2) department failed to establish that parents were offered all reasonably available services necessary to correct parental deficiencies; and
(3) department failed to establish that parental deficiencies could not be remedied in the near future.
Reversed and remanded.

Mattaponi Indian Tribe v. Virginia Marine Resources Commission
609 S.E.2d 619, Record No. 0846-04-1
Court of Appeals of Virginia, Richmond, March 1, 2005

Subjects: Mattaponi Indian Tribe, Virginia; Virginia. Marine Resources Commission; Newport News (Va.); Intervention; Treaty rights -- Mattaponi Indian Tribe, Virginia; Water rights -- Mattaponi Indian Tribe, Virginia; Mattaponi River (Va.).

*Synopsis: Indian tribe appealed decision by the Circuit Court, City of Newport News, Marc Jacobson, J., denying motion to intervene in dispute that City and Marine Resources Commission settled.

*Holding: The Court of Appeals, Richmond Kelsey, J., held that the settlement rendered moot appellate review of earlier denial of tribe's motion for permissive intervention.
Appeal dismissed as moot.

February

Unalachtigo Band of the Nanticoke-Lenni Lenape Nation v. State
867 A.2d 1222, Docket No. C-131-01
Superior Court of New Jersey, Appellate Division, February 28, 2005

Subjects: Unalachtigo Band of the Nanticoke Lenni-Lenape Nation; New Jersey; Indian reservations -- Shamong (N.J. : Township); Indian reservations -- Burlington County (N.J.); Nanticoke Indians -- Land tenure -- New Jersey; Indian land transfers -- New Jersey; Brotherton Indian Reservation (N.J.); Treaties – Interpretation and construction; Jurisdiction -- Burlington County (N.J.).

*Synopsis: Native American group, claiming to be direct descendants of Native American tribe who lived on former reservation in New Jersey, and its tribal chairperson brought action against State and governor, seeking specific performance of colonial treaty that had barred the sale of the reservation land and prohibited non-Indians from settling on the reservation. The Superior Court, Chancery Division, Burlington County, dismissed complaint for lack of subject matter jurisdiction. Native American group and tribal chairperson appealed.

*Holding: The Superior Court, Appellate Division, Lefelt, J.A.D., held that:
(1) State courts lacked subject matter jurisdiction over the suit, and
(2) any contract created between the tribe and State through legislation that ratified the colonial treaty was later rescinded when both the State and the tribe agreed, for valuable consideration, to sell the reservation land.
Affirmed.

In the Interest of L.C.L.-A.
695 N.W.2d 505, Docket No. 4-580 / 03-2077 Court of Appeals of Iowa, February 24, 2005

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; Iowa. Indian Child Welfare Act; Constitutional law.

*Synopsis: (from the opinion) This appeal was initiated by a guardian ad litem following the juvenile court’s action in a combined adjudicational and dispositional order in a Child in Need of Assistance (CINA) proceeding which: a. rejected arguments by the guardian ad litem against the constitutionality of a portion of the Iowa Indian Child Welfare Act, Iowa Code section 232B.6 (Supp. 2003), providing for emergency removals of Indian children, and b. adopted the recommendation of the parties and the guardian ad litem regarding placement of the child involved.

*Holding: not available

In re Noah B.
2005 WL 648058, Docket No. CP00013544A
Superior Court of Connecticut, February 16, 2005

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

*Synopsis: (from the opinion) Because Noah B. is an Indian child, and because no appellate level decision yet addresses the interface of state and federal termination of parental rights law for such a child, this court has been called upon to assess the applicable adjudicatory and dispositional determinations aspects of Connecticut's TPR scheme; and also of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., as amended. The court finds no conflict between the state and federal provisions at issue. Accordingly, the court in reaching its decision herein, the court has applied both the statutory requirements of § 17a-112(j) and has further adhered to ICWA's requirements as set forth in 25 U.S.C. § 1912(d) and (f). Specifically, in addition to measuring the petitioner's compliance with Connecticut's TPR statutes, the court has also assessed whether she has presented evidence that establishes, "beyond a reasonable doubt including testimony of qualified expert witnesses, that the continued custody of the child by the parent of Indian custodian is likely to result in serious emotional or physical damage to the child." ......The court further finds that notwithstanding the respondent father's claim to the contrary, "ICWA does not require that [Connecticut's] statutory grounds for termination of parental rights be proven beyond a reasonable doubt. The ICWA does not preempt any state law grounds for termination of parental rights or impose a single burden of proof on all supporting findings in termination proceedings in which it applies. On the contrary, the ICWA expressly provides for continued viability of state laws that impose differing standards of protection to the rights of the parent or Indian."

*Holding: not available

Mann v. ND Tax Commissioner
692 N.W.2d 490, Docket No. 20040174
Supreme Court of North Dakota, February 16, 2005

Subjects: TEK Industries; Motor fuels -- Taxation -- North Dakota -- On Indian reservations; Excise taxes -- North Dakota -- On Indian reservations; North Dakota. Office of State Tax Commissioner; North Dakota. State Treasurer's Office; Tax collection -- North Dakota.

*Synopsis: Native Americans brought action against Tax Commissioner and Treasurer for declaratory and injunctive relief against imposition of motor fuels taxes on them on their reservations. The Northwest Judicial District Court, Mountrail County, Gary A. Holum, J., issued permanent injunction against collection, dismissed all plaintiffs except one, and denied motions for reconsideration. Appeal and cross-appeal were taken.

*Holding: The Supreme Court, Kapsner, J., held that:
(1) denial of state's motion for reconsideration was not appealable without certification as final;
(2) dismissal of all but one plaintiff without prejudice was not appealable without certification as final order; and
(3) decision not to exercise supervisory authority was warranted.
Appeals dismissed.

In re Brooke C.
25 Cal.Rptr.3d 590, Docket No. B175555
Court of Appeal, Second District, Division 2, California, February 1, 2005

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; Notice (Law); Family reunions.

*Synopsis: The Superior Court of Los Angeles County, No. CK36633, Thomas E. Grodin, Commissioner, entered an order denying reunification services to mother as a chronic drug abuser. Mother appealed.

*Holding: The Court of Appeal, Nott, Acting P.J., held that failure to comply with notice requirements of Indian Child Welfare Act (ICWA) was not jurisdictional and did not require reversal of order.
Affirmed and remanded.

In re A.N.
106 P.3d 556, Docket No. 04-364
Supreme Court of Montana, February 1, 2005.

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; Abused Indian children; Indian children -- Members -- Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Sex offenders -- Montana.

*Synopsis: The District Court, Thirteenth Judicial District, County of Yellowstone, Gregory R. Todd, J., terminated father's parental rights. Father appealed.

*Holding: The Supreme Court, W. William Leaphart, J., held that:
(1) efforts of state Department of Public Health and Human Services were sufficiently active to satisfy section of Indian Child Welfare Act (ICWA) requiring that state show that it made active efforts to provide remedial services and rehabilitative programs designed to prevent breakup of Indian family;
(2) state's ICWA expert witness was not required to meet personally with father or children; and
(3) father was not entitled to six-month continuance of temporary legal custody.
Affirmed.

January

Humes v. Fritz Companies, Inc.
105 P.3d 1000, Docket No. 53349-5-I
Court of Appeals of Washington, Division 1, Jan. 31, 2004

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

*Synopsis:Crane operator brought personal injury action against truck driver and trucking company, after truck driver drove away before crane cable was detached from container that crane had loaded into truck. Accident took place on Indian reservation land, and crane operator was injured when he jumped from crane to avoid risking injury or death in a flipover of crane. On pretrial motions for summary judgment, the Superior Court, King County, Nicole Macinnes, J., ruled that the trier of fact could not allocate fault for crane operator's injury to Indian tribe, and that crane operator was not contributorily negligence. The jury returned a verdict in favor of crane operator, and defendants appealed.

*Holding: The Court of Appeals, Coleman, J., held that:
(1) tribe's sovereign immunity did not bar allocation of fault to tribe;
(2) crane operator satisfied requirements of emergency doctrine;
(3) defendants were not entitled to instruction on contributory negligence; and
(4) trial court properly instructed jury on proximate causation. Reversed in part, affirmed in part, and remanded.

In re T.H.
105 P.3d 354, Docket No. 100,822
Court of Civil Appeals of Oklahoma, Division No. 1, Jan. 20, 2005

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

*Synopsis: State sought termination of mother's parental rights to three minor children. The District Court, Cleveland County, Stephen W. Bonner, J., granted termination. Mother appealed.

*Holding: The Court of Civil Appeals, Kenneth L. Buettner, P.J., held that:
(1) mother failed to protect her children from heinous and shocking abuse, thereby supporting the termination of her parental rights, and
(2) immediate termination of mother's parental rights could be ordered, even though Indian Child Welfare Act (ICWA) required the offering of remedial services.
Affirmed.

Cogger v. County of Becker
690 N.W.2d 739
Docket No. A04-713
Supreme Court of Minnesota, Jan. 20, 2005

Subjects: Real property -- Taxation -- White Earth Band of Chippewa (Minn.); Ad valorem tax; Law -- Minnesota; Real property -- Defined; Prefabricated houses.

*Synopsis: Taxpayers appealed assessment of ad valorem property tax on their property, including value of the land and value of manufactured home, which was located within boundaries of an Indian reservation. The Tax Court, Seventh Judicial District, Becker County, Sheryl A. Ramstad, J., held in favor of county. Taxpayers appealed by writ of certiorari.

*Holding: The Supreme Court, Meyer, J., held that county could apply state's definition of real property, under which, taxpayers' manufactured home and adjoining property located within boundaries of an Indian reservation would properly be classified as real property for ad valorem tax purposes, to taxpayers' property.
Affirmed.

In the Matter of S.M.H. and In the Matter of L.M.H.
103 P.3d 976, Docket Nos. 91,519, 91,520
Court of Appeals of Kansas, Jan. 14, 2005

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.

*Synopsis: State filed petitions alleging that Native American children were children in need of care (CINC). A magistrate concluded that clear and convincing evidence supported determination that mother was unable to provide adequate care and control necessary for physical, mental, or emotional health of children. The District Court, Pottawatomie County, Tracy D. Klinginsmith, J., affirmed the magistrate's ruling. Mother appealed.

*Holding: The Court of Appeals, Hill, P.J. held that:
(1) substantial competent evidence supported finding that children were without care and control necessary for their physical, mental, or emotional health, as necessary to support conclusion that they were CINC;
(2) trial court, in concluding that children were CINC, erred in failing to apply standards of proof set forth in Indian Child Welfare Act (ICWA); and
(3) error in failing to follow standard of proof set forth in ICWA in determining that Indian children were CINC was not harmless.
Reversed.

In the Interest of J.S.B., Jr., and Concerning J.S.B., Sr. and O.L.J.
691 N.W.2d 611
Docket No. 22907
Supreme Court of South Dakota, Jan. 5, 2005

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; United States. Adoption and Safe Families Act of 1997.

*Synopsis: Following hearing on abuse and neglect proceedings, the Circuit Court, Seventh Judicial Circuit, Pennington County, Jeff W. Davis, J., terminated parental rights of both parents. Father appealed.

*Holding: The Supreme Court, Konenkamp, J., held that:
(1) Adoption and Safe Families Act (ASFA) did not relieve Department of Social Services (DSS) of any duty it held under Indian Child Welfare Act (ICWA) to provide active efforts to reunite child with his father, and
(2) termination of father's parental rights was warranted.
Affirmed.

Related News Stories: High court rules in Indian child-abuse case (Aberdeen News) 1/7/05

In the Interest of M.H., L .U.H., W.H., Jr., L.S.H., and T.H., Concerning T.R.T., W.H., Sr., and M.M.
691 N.W.2d 622
Docket Nos. 23092, 23093.
Supreme Court of South Dakota, Jan. 5, 2005

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; Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota.

*Synopsis: State sought to terminate the parental rights of father and mother, who were Native American, and the Indian tribe intervened, after receiving notification of the matter as required by the Indian Child Welfare Act (ICWA). The Circuit Court, Second Judicial Circuit, Minnehaha County, Kathleen Caldwell, J., found that termination of parental rights was in the best interest of children. Mother, father, and tribe appealed.

*Holding: The Supreme Court, Gilbertson, C.J., held that attorney was not qualified as an expert under the ICWA to testify in termination proceeding.
Reversed and remanded.

 

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