Indian Law Bulletins  |  State Courts  |  Archives 2008

December

Gary K. v. State of Alaska, Office of Children's Services
2008 WL 5413693
No. S-13118
Supreme Court of Alaska, December 31, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Child welfare; Parental rights -- Termination.

*Synopsis: (from the opinion) A father who failed to establish paternity until his daughter was two years old but who expressed a desire to parent the child after paternity was established appeals the superior court's termination of his parental rights. We conclude the superior court's factual findings were not clearly erroneous and its legal rulings and application of the law were proper. We therefore affirm the superior court's termination of parental rights.

*Holding: not yet available

A.D.T. and L.D. v. Utah
2008 WL 5376534
No. 20070978-CA
Court of Appeal, Utah, December 26, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Utah; Child welfare; United States. Indian Child Welfare Act of 1978; Navajo Nation, Arizona, New Mexico & Utah -- Members.

*Synopsis: (from the opinion) This case requires us to interpret the federal Indian Child Welfare Act (the ICWA), see 25 U.S.C. §§ 1901-63 (2000), and determine its proper application within the framework of the abuse, neglect, and dependency provisions of Utah's Juvenile Court Act of 1996, see Utah Code Ann. §§ 78A-6-301 to -324 (Supp.2008). Mother and Grandfather appeal the juvenile court's December 5, 2007 Findings of Fact, Conclusions of Law, and Adjudication Order wherein custody and guardianship of C.D., A.D., J.T., and S.T. were granted to the Division of Child and Family Services. We affirm in part, reverse in part, and remand for further proceedings consistent with this decision.

*Holding: not yet available

State v. Beasley
2008 WL 5337079
No. 34698
Court of Appeals, Idaho, December 23, 2008

Subjects: Concurrent jurisdiction -- States; Concurrent jurisdiction -- Tribes; Jurisdiction -- Idaho; Criminal actions arising on Indian reservations; Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Law -- Tribes; Extradition.

*Synopsis: (from the opinion) The district court did not err by denying Beasley's motion to dismiss. Trooper Winans was not outside his jurisdiction when he arrested Beasley, as the state and the Shoshone-Bannock tribes share concurrent jurisdiction over Interstate 15 where it crosses the Fort Hall Indian Reservation. Furthermore, the tribal extradition code does not apply to arrests by state agents in areas of concurrent jurisdiction. Therefore, the arrest was not illegal and the district court was not required to relinquish jurisdiction over Beasley. Beasley's judgment of conviction is affirmed.

*Holding: not yet available

In re H. E.
2008 WL 5340972
No. A120903
Court of Appeal, First District, Division 2, California, December 23, 2008

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

*Synopsis: County Department of Health and Human Services sought order declaring children dependents of the juvenile court and maintaining them in foster care. The Superior Court, Humboldt County, No. JV070221-1-2, Christopher G. Wilson, J., granted order. Mother appealed.

*Holding: The Court of Appeal, Lambden, J., held that: (1) removal of children from mother was warranted to protect children from serious emotional harm, and (2) department of health and human services made reasonable efforts to prevent removal. Affirmed.

In the Interest of A.P. and S.T.
2008 WL 5234364
No. 08-0439
Court of Appeal, Iowa, December 17, 2008

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

*Synopsis: (from the opinion) The Sac and Fox Tribe of the Mississippi in Iowa (Tribe) appeals from the juvenile court's denial of its motion to intervene in children in need of assistance (CINA) proceedings that involve two children it alleges are Indian children within the meaning of Iowa's Indian Child Welfare Act (Iowa ICWA), Iowa Code chapter 232B (2007). Upon our review, we affirm the judgment of the juvenile court.

*Holding: not yet available

Ameriloan v. The Superior Court of Los Angeles County
2008 WL 5206483
No. B203548
Court of Appeal, Second District, California, December 15, 2008

Subjects: Payday loans; Sovereign immunity -- Indian business enterprises; Business transactions -- Non-Indians; Law -- California; United States. Constitution. 10th Amendment; Internet business enterprises; Indian business enterprises -- Miami Tribe of Oklahoma.

*Synopsis: Department of Corporations brought action against payday loan companies for violations of Deferred Deposit Transaction Law (DDTL). Companies appeared specially and moved to quash on basis that they were immune from suit under doctrine of tribal sovereign immunity. The Superior Court, Los Angeles County, No. BC373536, Joseph R. Kalin, J., denied motion. Companies filed petition for writ of mandate. The Court of Appeal denied petition. Companies filed petition for review. The Supreme Court granted petition and transferred the matter to the Court of Appeal.

*Holding: The Court of Appeal, Perluss, P.J., held that:
(1) tribal sovereign immunity applies to commercial activities of a tribe's for-profit business entities conducted off of a reservation;
(2) companies' waiver of tribal sovereign immunity for suits “upon any contract or obligation” did not authorize Department's action; and (
3) companies' waiver of tribal sovereign immunity for arbitration with customers did not authorize Department's action; but
(4) fact issue existed as to whether the companies were acting on behalf of tribes.
Petition granted in part and denied in part.

Adoption of A.A.T.
2008 WL 5191468
No. 98,740
Supreme Court of Kansas, December 12, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Kansas; Child welfare; Adoption.

*Synopsis: Natural father, who had been deceived by the mother, brought action to set aside adoption of his newborn child. The Sedwick District Court ordered DNA testing, and adoptive parents appealed. The Court of Appeals affirmed. After DNA testing confirmed natural father's paternity and following a bench trial, the District Court, Richard T. Ballinger, J., refused to set aside the adoption. Natural father appealed.

*Holding: After the appeal was transferred, the Supreme Court, Luckert, J., held that:
(1) evidence was sufficient to establish that father should have know that the mother was still pregnant despite mother's claims she had an abortion and that if he had taken action he would have been able to protect his rights;
(2) father failed to grasp the opportunity to establish a firm commitment to parenting and thus did not have a liberty interest in parenting his newborn child protected by the Due Process Clause;
(3) mother was not an “adverse party,” for purposes of statute entitling a party to relief from a judgment when the judgment was obtained by the fraud of an adverse party; and
(4) trial court did not abuse its discretion by finding that father could have discovered mother's lies by the use of reasonable diligence, and thus was not entitled to relief from the judgment based on newly discovered evidence.
Affirmed.

Francis v. Dana-Cummings
2008 WL 5173182
No. WAS-08-223
Supreme Judicial Court of Maine, December 11, 2008

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. Maine Civil Rights Act; Jurisdiction -- Passamaquoddy Tribe of Maine.

*Synopsis: Alleged owner of private residence on Indian tribe's reservation brought claims against executive director of tribal housing authority for violation of Maine Civil Rights Act, trespass, and illegal eviction, and executive director filed third-party complaint against authority. The Superior Court, Washington County, Mead, J., 2002 WL 32068355, granted authority's motion to dismiss third-party complaint and sua sponte dismissed underlying complaint based on failure to state a claim and lack of subject matter jurisdiction. Alleged owner appealed. The Supreme Judicial Court issued opinions, 840 A.2d 708, 868 A.2d 196, and 915 A.2d 412, vacating and affirming various trial court rulings and remanded case. On remand, the Superior Court, Washington County, Hunter, J., entered summary judgment in favor of executive director, tribe, and authority. Alleged owner appealed.

*Holding: The Supreme Judicial Court, Alexander, J., held that dispute was internal tribal matter over which tribe and tribal court had exclusive jurisdiction not subject to regulation by the state. Affirmed.

State v. Priest
196 P.3d 763
No. 26463-7-III
Court of Appeals of Washington,Division 3, December 4, 2008

Subjects:

*Synopsis: Defendant was convicted, in the Superior Court, Okanogan County, John
E. Bridges, J., of first-degree theft and second-degree theft. Defendant appealed.

*Holding: The Court of Appeals, Brown, J., held that:
(1) State established that defendant's prior conviction for bail jumping was a felony rather than a misdemeanor, for purposes of calculating defendant's offender score at sentencing, and
(2) State established existence of defendant's prior federal conviction for theft on Indian reservation, for purposes of calculating defendant's offender score at sentencing.
Affirmed.

November

Havasupai Tribe of the Havasupai Reservation v. Arizona Board of Regents
2008 WL 5047641
No. 1 CA-CV 07-0454, 1 CA-CV 07-0801
Court of Appeals of Arizona, Division 1, November 28, 2008

Subjects: Genetics -- Research; Human experimentation in medicine; Science -- Moral and ethical aspects; Havasupai Tribe of the Havasupai Reservation, Arizona -- Members; Arizona State University -- Officials and employees; Anthropology -- Research.

*Synopsis: Indian tribe and individual members filed actions alleging state and federal claims against Arizona Board of Regents and others in connection with alleged misuse of members' blood samples. Following removal of actions to federal court, dismissal of federal claims, and remand of remaining claims to state court, defendants moved for summary judgment. The Superior Court, Maricopa County, No. CV2005-013190, 2007 WL 1891490, Janet E. Barton, J., entered summary judgment dismissing actions. Tribe and individual members appealed.

*Holding: The Court of Appeals, Johnsen, J., held that:
(1) statutory requirement that notice-of-claim letter to a public entity contain “facts supporting” settlement demand does not require claimant to set forth facts sufficient to support the demand;
(2) notice-of-claim letters from tribe and individual members met requirement of stating facts supporting settlement demands;
(3) question of fact as to whether notices of tribe's cause of action were served within 180 days of date on which claims accrued precluded a summary judgment dismissing claims on limitations grounds;
(4) general counsel for university and assistant Attorney General were appropriate legal officers representing Board of Regents on whom service of notice of tribe's claim could be effected;
(5) notices of claims were not required to make separate settlement demands on each of the various alleged individual wrongdoers.
Reversed and remanded.

Related News Stories: Court ruling on Havasupai blood case good news for tiny tribe (Phoenix New Times) 12/15/08

Mudarri v. State
196 P.3d 153
No. 36130-2-II
Court of Appeals of Washington, Division 2, November 18, 2008

Subjects: Equality before the law; Indian gaming; Gambling on Indian reservations -- Washington (State); Intergovernmental agreements -- Indian gaming; Casinos -- Puyallup Tribe of the Puyallup Reservation, Washington; Electronic games; Scratch-off lottery tickets.

*Synopsis: Private casino owner filed declaratory judgment action against state, seeking authorization to operate electronic scratch ticket lottery games at his private casino, or, alternatively, invalidation of compact between state and tribe, under which tribe had exclusive right to operate electronic scratch ticket games at its nearby casino. Parties filed cross-motions for summary judgment, and state filed motion to dismiss for failure to join tribe as an indispensable party. The Superior Court, Thurston County, William Thomas McPhee, J., granted motion to dismiss in part, and granted state's motion for summary judgment in part. Owner appealed.

*Holding: The Court of Appeals, Hunt, J., held that:
(1) tribe was indispensable party to claims directly challenging validity of compact;
(2) tribe was indispensable party to claims indirectly challenging validity of compact;
(3) Gambling and Lottery Commission lacked authority to authorize private casino owner's proposed electronic scratch ticket lottery game;
(4) statutes prohibiting non-Native American tribe electronic scratch ticket games and the Gambling and Lottery Commission's enforcement of this legislative prohibition did not violate owner's equal protection rights; and
(5) owner's rights under Privileges and Immunities Clause of State Constitution were not violated.
Affirmed.

State v. Cayenne
195 P.3d 521
No. 80499-I
Supreme Court of Washington , En Banc, November 13, 2008

Subjects: Fishing nets -- Law and legislation -- Washington (State) -- Application -- Indian Country (U.S.); Confederated Tribes of the Chehalis Reservation, Washington -- Members; Gillnetting.

*Synopsis: Following a jury trial, defendant, a member of Indian tribe, was convicted in the Superior Court, Grays Harbor County, David E. Foscue, J., of unlawful use of nets to take fish and, as part of sentence, was prohibited from owning gillnets during term of sentence, on and off reservation. Defendant appealed. The Court of Appeals, 139 Wash.App. 114, 158 P.3d 623, affirmed in part and vacated in part. State filed petition for review, which was granted.

*Holding: The Supreme Court, C. Johnson, J., held that court could extend crime-related prohibition on owning gillnets during term of sentence to within boundaries of reservation. Decision of Court of Appeals reversed.

Related News Stories: State issues welcome ruling on tribes (The Olympian) 12/8/08.

In re D.D.
2008 WL 4892482
No. 3-08-0442
Appellate Court of Illinois, Third District, November 5, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Illinois; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights - Termination.

*Synopsis: Termination of parental rights proceeding was brought. The Circuit Court, 9th Judicial Circuit, Hancock County, Patricia A. Walton, J., terminated parents parental rights. Parents appealed.

*Holding: The Appellate Court, Lytton, J., held that:
(1) witness was sufficiently qualified under Indian Child Welfare Act (ICWA) as expert witness, and
(2) evidence supported finding that active efforts were made to prevent breakup of family in parental rights termination proceeding.
Affirmed.

October

In re People ex rel. L.O.L.
2008 WL 4741903
No. 08CA0402
Colorado Court of Appeals, Div. II, October 30, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Colorado; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights - Termination.

*Synopsis: County department of social services filed motion to terminate mother's parental rights. The District Court, Adams County, Katherine R. Delgado, J., denied motion. Child, through her guardian ad litem, appealed.

*Holding: The Court of Appeals, Taubman, J., held that:
(1) issue of whether trial court properly refused to terminate mother's parental rights was moot;
(2) issue of whether trial court applied the wrong burden of proof was capable of repetition yet evading review; and
(3) trial court could not require department to demonstrate the statutory criteria for termination beyond a reasonable doubt.
Appeal dismissed in part, order reversed in part, and remanded with directions.

In re A.A.
84 Cal.Rptr.3d 841
No. F055097
Court of Appeals, Fifth District, California, October 28, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Foster care placement; Adoption.

*Synopsis: County health and human services agency sought to terminate mother's parental rights to Indian children. Tribe's request to intervene was granted. The Superior Court, Tulare County, Nos. JJV059910A and JJV059910B, Charlotte Wittig, Juvenile Court Referee, terminated mother's parental rights and freed children for adoption. Mother and tribe appealed.

*Holding: The Court of Appeal, Wiseman, Acting P.J., held that:
(1) substantial evidence supported finding that children were adoptable;
(2) in a matter of first impression, substantial evidence supported finding that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts proved unsuccessful;
(3) in a matter of first impression, trial court did not abuse its discretion in concluding that Indian child exception did not apply to preclude termination of mother's parental rights; and
(4) in a matter of first impression, substantial evidence supported finding that good cause existed not to follow Indian tribe's permanent placement preference upon termination of mother's parental rights.
Affirmed.

State v. Ryan
757 N.W.2d 155
No. 24607
Supreme Court of South Dakota, October 8, 2008

Subjects: Jury selection; Evidence (Law); Drugs -- Law and legislation -- South Dakota.

*Synopsis: Defendant was convicted by a jury in the Circuit Court of the Fifth Judicial Circuit, Roberts County, Jon S. Flemmer, J., of unauthorized possession of a controlled substance and possession of drug paraphernalia. Defendant appealed.

*Holding: The Supreme Court, Sabers, J., held that:
(1) the State provided a valid, race-neutral reason for excluding Native American prospective juror, and
(2) evidence was sufficient to support conviction for unauthorized possession of a controlled substance.
Affirmed.

Cypress v. Jumper
990 So.2d 576
No. 4D07-3336
District Court of Appeal of Florida, Fourth District, October 8, 2008

Subjects: Parent and child (Law); Child welfare; Child support.

*Synopsis: Mother sought review of judgment of the Circuit Court, Seventeenth Judicial Circuit, Broward County, Arthur M. Birken, J., denying her request for child support.

*Holding: The District Court of Appeal, Palmer, William D., Associate Judge, held that trial court was authorized to deviate from support guidelines under the circumstances.
Affirmed.

September

Roe v. Finfrock
2008 WL 4603462
No. 283642
Court of Appeals of Michigan, September 25, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Michigan; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights - Termination.

*Synopsis: (from the opinion) In this termination of parental rights case involving an Indian child, respondent Theresa Finfrock appeals as of right the trial court order terminating her parental rights to her daughter Ashtyn Jasmin Roe. The trial court terminated Finfrock's rights after finding that her rights to another child had been terminated due to physical abuse and that prior attempts to rehabilitate her had been unsuccessful. As the Indian Child Welfare Act (the ICWA) requires, the trial court further found that continued custody by Finfrock was likely to result in serious emotional or physical damage to the child. On appeal, Finfrock argues that the trial court erred by failing to require petitioner Department of Human Services (the Department) to prove that it made “active efforts” to provide the remedial services and rehabilitative programs that the ICWA required. Finfrock further argues that the trial court clearly erred when it found that Finfrock's continued custody was likely to result in serious emotional or physical damage to the child. We conclude that the ICWA requires the trial court to make findings regarding whether the Department made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and regarding whether those efforts proved unsuccessful. Because the trial court did not make these findings, we reverse its order terminating Finfrock's parental rights and remand for further proceedings consistent with this opinion.

*Holding: not yet available

Meyer and Associates Inc. v. Coushatta Tribe of Louisiana
992 So.2d 446
No. 2007-CC-2256
Supreme Court of Louisiana , September 23, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Contracts -- Coushatta Tribe of Louisiana; Exhaustion of tribal remedies; Jurisdiction -- Louisiana; Sovereign immunity -- Coushatta Tribe of Louisiana; Energy development -- Coushatta Tribe of Louisiana; Power-plants -- Coushatta Tribe of Louisiana; Joint ventures -- Coushatta Tribe of Louisiana; Meyer & Associates, Inc.; Jurisdiction -- Coushatta Tribe of Louisiana.

*Synopsis: Indian tribe filed suit in tribal court against engineering firm for damages related to various contracts concerning electric power plant. Subsequently, firm filed suit in district court against tribe for breach of contract. The Fourteenth Judicial District Court, Parish of Calcasieu, No. 2006-2683, R. Richard Bryant, Jr., D.J., denied tribe's exceptions of lis pendens and lack of subject matter jurisdiction. Tribe filed writ application. The Court of Appeal, Third Circuit, 965 So.2d 930, Sullivan, J., granted writ and ordered a stay to allow tribal court to decide whether tribe had waived its sovereign immunity.

*Holding: Granting certiorari, the Supreme Court, Traylor, J., held that:
(1) district court could entertain issue of whether or not it had subject matter jurisdiction, as opposed to staying the matter in accordance with exhaustion of tribal remedies doctrine to allow tribal court to decide whether tribe had waived its sovereign immunity;
(2) resolution of tribal council gave chairman authority to waive tribe's sovereign immunity with respect to disputes arising under agreements related to power plant; and
(3) district court could decline to stay matter to allow tribal court to determine if it had jurisdiction over the non-Indian party and, if so, to decide merits of case.
Judgment of Court of Appeal reversed and case remanded.

State of Minnesota v. William Losh
755 N.W.2d 736
No. 06-1910
Supreme Court of Minnesota, September 18, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: United States. Public Law 280; Mille Lacs Band of Chippewa Indians -- Members; Jurisdiction -- Minnesota -- Itasca County; Traffic violations -- On Indian reservations -- Leech Lake Indian Reservation (Minn.); Jurisdiction -- Minnesota.

*Synopsis: For the purposes of determining whether the State has subject-matter jurisdiction, pursuant to Public Law 280, to prosecute a tribal member who commits the offense of driving after revocation of a driver's license, in violation of Minn. Stat. § 171.24, subd. 2 (2006), on tribal land because that offense is criminal/prohibitory, a court may consider the underlying basis for the revocation to determine whether the driving after revocation offense raises substantially different or heightened public policy concerns.

*Holding: The Supreme Court, Dietzen, J., held that statute defining offense of driving after revocation of a driver's license was criminal/prohibitory when the underlying basis for the revocation was driving while impaired or a failure of a test administered under the implied-consent law.
Affirmed.

Forrest County Potawatomi Community v. Township of Lincoln
761 N.W.2d 31
No. 2007AP2523
Court of Appeals of Wisconsin, September 16, 2008

Subjects: Forest County Potawatomi Community, Wisconsin; Real property -- Sales -- Taxation; Taxation -- Law and legislation -- Lincoln (Wis.); Mines and mineral resources -- Indian Country (U.S.); Real property tax.

*Synopsis: Native American tribes filed action against town, alleging excessive tax on two parcels of land. The Circuit Court, Forest County, Robert E. Kinney, J., granted summary judgment to town. Tribes appealed.

*Holding: The Court of Appeals, Peterson, J., held that evidence that sale of mining company to tribes was not a recent arm's-length sale of just the two parcels at issue was significant contrary evidence that rebutted presumption in favor of town's assessment, thus requiring consideration of tribes' evidence of land's value. Reversed and remanded.

Empson-Laviolette v. Crago
2008 WL 4191453
No. 284041
Court of Appeals of Michigan, September 11, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Michigan; Child welfare; United States. Indian Child Welfare Act of 1978; Foster care placement.

*Synopsis: Plaintiff Stephanie Empson-Laviolette (Empson), an enrolled member of the Pokagon Band of Potawatomi Indians (Tribe), appeals by right the trial court's order granting sole custody of her son, Z.E., to appellees Shannon and Tricia Scott. Below, pursuant to the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq. , Empson moved the trial court to dismiss the Scotts' motion for custody and to return Z.E. to her custody because she had withdrawn her consent to the Scotts' guardianship of Z.E. Because the ICWA allows the parent of an Indian child who consents to a foster care placement of the child to withdraw her consent to the placement at any time and to have the child returned to her custody, we agree with Empson that she was entitled to have Z.E. returned to her custody. Therefore, we vacate the trial court's order granting custody of Z.E. to the Scotts and remand for an order terminating the Scotts' guardianship of Z.E. and for the effectuation of the return of Z.E. to Empson.

*Holding: not available yet

August

In re Shane G.
83 Cal.Rptr.3d 513
No. D052632
Court of Appeal, Fourth District, Division 1, California, August 26, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: The Superior Court, San Diego County, No. 515833E, Cynthia Bashant and Gary M. Bubis, JJ., terminated parental rights to child. Parents appealed.

*Holding: The Court of Appeal, McConnell, P.J., held that:
(1) county health and human services agency inquiry produced no information that child was an Indian child, and
(2) inability to find Indian Child Welfare Act (ICWA) notices and return receipts as to child did not require reversal of termination of parental rights.
Affirmed.

Greene v. Commissioner of the Minnesota Department of Human Services
755 N.W.2d 713
No. A06-804
Supreme Court of Minnesota, August 28, 2008

Subjects: Minnesota Chippewa Tribe -- Members; Equality before the law; Employment agencies -- Minnesota Chippewa Tribe; Employment agencies -- Minnesota -- Aitkin County; Minnesota Family Investment Program.

*Synopsis: Indian Tribe member brought action to challenge order of the Commissioner of Human Services upholding a sanction imposed by county that partially suspended the Minnesota Family Investment Program (MFIP) benefits Tribe member received based on her failure to participate in tribal employment services. The District Court, Aitkin County, affirmed, and Tribe member appealed. The Court of Appeals, 733 N.W.2d 490, affirmed. Tribe member petitioned for review.

*Holding: After granting review, the Supreme Court, Dietzen, J., held that:
(1) Tribe member was required, absent good cause, to receive employment services from her Tribe, when she applied for MFIP benefits;
(2) Tribe member did not have good cause to refuse to use Tribe's employment services;
(3) provision requiring member to use Tribe's employment services did not violate member's fundamental right to travel or involve a suspect classification, and thus was subject to rational basis rather than strict scrutiny review; and
(4) provision satisfied the rational basis test.
Affirmed.

Stephen H. v. Arizona Department of Economic Security
190 P.3d. 180
No. CV-08-0026-PR
Supreme Court of Arizona, August 19, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Arizona; Child welfare; United States. Indian Child Welfare Act of 1978; Evidence (Expert).

*Synopsis: In child protection proceeding involving children of Indian descent, the Superior Court, Coconino County, No. MD2006-0031, Margaret A. McCullough, J., ordered that children be made wards of the court and placed under control of Department of Economic Security (DES). Parents appealed. The Court of Appeals, 217 Ariz. 315, 173 P.3d 479, vacated dependency order, and children's guardian ad litem (GAL) appealed.

*Holding: The Supreme Court, Ryan, J., held that:
(1) Indian Child Welfare Act (ICWA) requires qualified expert testimony that addresses determination that the Indian child is at risk of future harm, and
(2) as matter of first impression, such testimony need note recite specific language of ICWA or express its conclusion in a particular way.
Opinion of Court of Appeals vacated, matter remanded.

David H. v. Karen F.
82 Cal.Rptr.3d 81
No. A118968
California Court of Appeal, First District, Division 5, August 19, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Family reunification.

*Synopsis: After setting aside jurisdictional and dispositional orders in dependency case because of errors in complying with the Indian Child Welfare Act (ICWA), the Superior Court, Napa County, No. JV15082, Monique Langhorne-Johnson and Michael S. Williams, Commissioners, and Francisca P. Tisher, J., declared Indian child to be dependent and ordered reunification services. Mother appealed.

*Holding: The Court of Appeal, Reardon, J., held that:
(1) mother's contention that juvenile court erred in extending child's detention was moot;
(2) any error was harmless in mother's lack of representation when tribe's ICWA representative received permission to testify by telephone;
(3) juvenile court properly denied continuance of jurisdictional hearing;
(4) mother forfeited argument that her automatic right to 20-day continuance under ICWA required continuance;
(5) any error in trial court's refusal to grant continuance was harmless;
(6) appointment of new counsel two weeks before hearing did not infringe on mother's ICWA right to counsel;
(7) mother waived argument that jurisdictional petition was facially insufficient;
(8) statute providing that challenges to facial sufficiency are not forfeited by failure to raise them in the trial court does not apply to dependency proceedings;
(9) serious physical harm inflicted nonaccidentally by mother was sufficient to support dependency jurisdiction; and
(10) child faced current substantial risk of physical harm if returned to mother's custody.
Affirmed.

Justin L. v. Superior Court
81 Cal.Rptr.3d 884
No. B206462
Court of Appeal, Second District, Division 3, California, August 14, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Notice (Law); Family reunification.

*Synopsis: In dependency proceeding, the Superior Court, Los Angeles County, No. CK66262, Stanley Genser, J., removed two children from parents' custody and denied reunification services. Mother, father of one child, and alleged father of other child petitioned for writ of mandate.

*Holding: The Court of Appeal, Aldrich, J., held that failure to notify appropriate Indian tribes required remand for Indian Child Welfare Act (ICWA) compliance.
Petitions granted in part and denied in part.

Morgan v. 2000 Volkswagen, License No. 279, VIN # 3VWRA29M2YM125643
754 N.W.2d 587
No. A07-1922
Court of Appeals of Minnesota, August 12, 2008

Subjects: Forfeiture; Motor vehicles; Jurisdiction -- Minnesota; Jurisdiction -- On Indian reservations -- States.

*Synopsis: Enrolled member of Indian tribe, who was charged with committing an offense on his reservation that triggered vehicle forfeiture statute, moved to dismiss forfeiture action. The District Court, Mahnomen County, denied motion. Tribe member appealed.

*Holding: The Court of Appeals, Stoneburner, J., held that vehicle forfeiture statute was civil/regulatory in nature and thus could not be enforced by state against Indian-owned vehicles for conduct occurring on owner's resservation.
Reversed.

State of New Mexico v. Harrison
190 P.3d 1146
No. 27,224
Court of Appeals of New Mexico, August 6, 2008

Subjects: Roadside sobriety tests -- New Mexico; Cross-commissioned police; Indian reservation police; United States. Bureau of Indian Affairs -- Police; Criminal actions arising on Indian reservations -- Navajo Nation, Arizona, New Mexico & Utah; Evidence (Law).

*Synopsis: Defendant, a Navajo Indian, was convicted in the District Court, San
Juan County, Thomas J. Hynes, D.J., of his seventh driving while intoxicated (DWI)
offense, and defendant appealed.

*Holding: The Court of Appeals, Vigil, J., held that:
(1) county deputy though not cross-commissioned had authority to stop defendant on Navajo Reservation, and
(2) defendant voluntarily performed field sobriety tests.
Affirmed.

July

Beltran v. Harrah's Arizona Corporation
2008 WL 2931392
No. 2 CA-CV 2007-0169
Court of Appeals of Arizona, Division 2, Department B., July 31, 2008

Subjects: Personal injuries; Casinos -- Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Jurisdiction -- Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Jurisdiction -- Arizona; Gambling on Indian reservations -- Arizona; Indian gaming -- Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona.

*Synopsis: Casino patron, who tripped and fell inside Indian casino, brought negligence action against Indian tribe, which owned and operated casino pursuant to a gaming compact with the State of Arizona, and against manager of casino. The Superior Court, Pinal County, No. CV0200701600, William J. O'Neil, J., dismissed action, and patron appealed.

*Holding: The Court of Appeals, Espinosa, J., held that:
(1) tribal court's denial of patron's motion to amend and subsequent dismissal of his personal injury complaint for failure to join Indian tribe as indispensable party did not constitute a denial of due process or violation of Arizona public policy, and thus, superior court did not abuse its discretion in recognizing tribal court judgment and its preclusive effect;
(2) both Indian tribe, which owned casino, and management company, which managed casino, were entitled to raise issue preclusion to prevent patron from relitigating in state court the same issues patron had earlier litigated in tribal court; and
(3) because patron filed his claim two years after he was injured, he did not comply with the conditions of the tribe's limited waiver, and consequently, Indian tribe was immune from suit.
Affirmed.

In re "A" Children
193 P.3d 1228
Civil Action No. 03-2220-DJW
Intermediate Court of Appeals of Hawai'i, July 31, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Hawai'i; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights - Termination; Due process of law.

*Synopsis: In child-protection proceedings, Department of Human Services (DHS) moved to terminate mother's parental rights to five children, and father's parental rights to the two children who were his biological children. Following a trial, the Family Court of the First Circuit terminated parental rights and granted DHS permanent custody. Both parents appealed.

*Holding: The Intermediate Court of Appeals, Watanabe, P. J., held that:
(1) evidence was sufficient to establish that mother was unable to provide a safe home for her children and that DHS made reasonable efforts to reunite mother with her children;
(2) father, a native Hawaiian, was not entitled to the beyond-a-reasonable-doubt-proof standard applicable to the termination of parental rights of native Americans under the Indian Child Welfare Act (ICWA); and
(3) father, who was indigent, was deprived of his constitutional right to due process when he was not provided with appointed counsel until 16 days before the termination hearing.
Affirmed in part, and vacated and remanded in part.

In re Esmeralda S.
80 Cal.Rptr.3d 585, Docket No. E045044
Court of Appeal, Fourth District, Division 2, California, July 22, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights - Termination; Due process of law.

*Synopsis: County department of children's services filed dependency petition. The Superior Court, San Bernardino County, No. J209746, James A. Edwards, J., appointed guardian ad litem for mother, and ordered termination of mother's and father's parental rights. Mother appealed.

*Holding: The Court of Appeal, McKinster, J., held that:
(1) mother's right to due process was violated by appointment of guardian ad litem; but
(2) appointment of guardian ad litem in violation of a parent's due process rights may be deemed harmless if outcome of hearings is not affected;
(3) due process violation was harmless to determination of whether mother had American Indian ancestry for purposes of Indian Child Welfare Act (ICWA); and
(4) due process violation was harmless to mother in termination of her parental rights.
Affirmed.

Garcia v. Gutierrez
192 P.3d 275
No. 26,484
Court of Appeals of New Mexico, July 8, 2008

Subjects: Divorce settlements; Pojoaque Pueblo (N.M.) -- Members; Jurisdiction - New Mexico; Trials (Custody of children); Indian Country (U.S.) -- Defined; Pojoaque Pueblo (N.M.) -- Boundaries; Uniform Child Custody Jurisdiction and Enforcement Act; Fee lands -- Indian Country (U.S.); Jurisdiction -- Pojoaque Pueblo (N.M.).

*Synopsis: The District Court, Santa Fe County, Barbara Vigil, D.J., entered divorce judgment. Former husband appealed.

*Holding: The Court of Appeals, Robinson, J., held that:
(1) trial court had subject-matter jurisdiction over dissolution of marriage;
(2) trial court had subject-matter jurisdiction over non-child-custody matters;
(3) tribal land was children's home state under Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA);
(4) temporary child custody order issued by state court in domestic-violence case was no longer in effect as soon as child custody order was obtained from tribal court in divorce action;
(5) fee land within the exterior boundaries of the tribal land was part of the tribe's territory for jurisdictional purposes under Parental Kidnapping Prevention Act (PKPA); and
(6) under the PKPA, tribes are United States territories that are to be treated as states.
Affirmed in part, reversed in part, and remanded.

In re A.B.
79 Cal.Rptr.3d 580, Docket No. D052401
Court of Appeal, Fourth District, Division 1, California, July 8, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights - Termination; Heritage.

*Synopsis: In dependency proceeding, county health and human services agency recommended termination of parents' parental rights to son. The Superior Court, San Diego County, No. NJ013487, Michael Imhoff, J., terminated parental rights and found adoption was in son's best interest. Father appealed.

*Holding: The Court of Appeal, McConnell, P.J., held that:
(1) the Court of Appeal would augment record with document in which mother denied any Indian heritage;
(2) good cause supported extension of time for agency's motion to augment record; and
(3) failure to inquire into Indian heritage of mother was harmless.
Affirmed.

Florida House of Representatives v. Crist
990 So.2d 1035, Docket No. SC07-2154
Supreme Court of Florida, July 3, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Indian gaming -- Seminole Tribe of Florida; Gambling on Indian reservations -- Florida; Florida. Governor -- Powers and duties; Intergovernmental agreements -- Seminole Tribe of Florida; Intergovernmental agreements - Florida; United States. Indian Gaming Regulatory Act.

*Synopsis: State House of Representatives and its speaker filed petition for writ of quo warranto disputing Governor's authority to bind State to Indian gaming compact without legislative authorization or ratification.

*Holding: The Supreme Court, Cantero, J., held that:
(1) it had quo warranto jurisdiction;
(2) “necessary business” clause of state constitution does not authorize governor to execute compacts contrary to the expressed public policy of state or to create exceptions to the law;
(3) absent a tribal-state compact, any gambling prohibited in Florida is prohibited on tribal land;
(4) by authorizing tribe to conduct “banked card games” that were illegal throughout State, and thus illegal for the tribe, Indian gaming compact violated state law;
(5) Governor's execution of compact authorizing types of gaming that were prohibited under state law violated separation of powers; and
(6) Governor lacked authority to bind State to compact that departed from State's public policy by legalizing types of gaming that were illegal everywhere else in the state.
Petition granted.

Hunt Construction Group, Inc. v. Oneida Indian Nation
862 N.Y.S.2d 423, Docket No. CA 07-02515
Supreme Court, Appellate Division, Fourth Department, New York, July 3, 2008

Subjects: Breach of contract -- Turning Stone Casino (N.Y.); Indian gaming -- Oneida Nation of New York; Jurisdiction -- New York (State); Sovereign immunity -- Oneida Nation of New York.

*Synopsis:Construction company brought action against Indian tribe alleging breach of contract. The Supreme Court, Oneida County, Robert F. Julian, J., denied Indian tribe's motion to dismiss. Indian tribe appealed.

*Holding: The Supreme Court, Appellate Division, held that Indian tribe's limited contractual waiver of sovereign immunity did not encompass actions commenced in Supreme Court, Oneida County. Reversed.

June

In re adoption of C.D.
751 N.W.2d 236, Docket No. 20070171
Supreme Court of North Dakota, June 26, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- North Dakota; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights - Termination.

*Synopsis: Wife of child's father filed petitions to adopt child and terminate mother's parental rights. The District Court, Burleigh County, South Central Judicial District, Sonna M. Anderson, J., dismissed petition under the Indian Child Welfare Act (ICWA). Wife appealed.

*Holding: The Supreme Court, Vande Walle, C.J., held that:
(1) wife's failure to object to Indian tribe's motion to intervene did not result in waiver of petitioner's claim that ICWA did not apply;
(2) allegations in Indian tribe's motions were not binding and conclusive on child's status as an “Indian child”; and
(3) notwithstanding evidence of Native American heritage, child was not an “Indian child” under ICWA, absent evidence of mother's current membership in a federally recognized Indian tribe.
Reversed and remanded.

In re S.B.
79 Cal.Rptr.3d 449, Docket No. D052202
Court of Appeal, Fourth District, Division 1, California, June 26, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights - Termination; Notice (Law).

*Synopsis: County health and human services agency filed petition to terminate parental rights of father to dependent child. The Superior Court, San Diego County, No. EJ2701A, Gary M. Bubis, J., granted petition. Father appealed.

*Holding: The Court of Appeal, Benke, Acting P.J., held that:
(1) father established that he had maintained regular visitation and contact with child and that child would benefit from continuing the relationship, as exception to termination of parental rights to dependent child;
(2) agency's failure to comply with Indian Child Welfare Act (ICWA) notice requirements was cured when agency sent subsequent notice to the Bureau of Indian Affairs (BIA) and filed proper verification with the court; and
(3) upon learning which Indian tribe or tribes absorbed the tribe from which a child was purportedly a descendant, agency was required by ICWA to serve notice to those tribes.
Reversed and remanded with directions.

Zephier v. Catholic Diocese of Sioux Falls
752 N.W.2d 658, Docket Nos. 24124, 24194
Supreme Court of South Dakota, June 25, 2008

Subjects: Abused Indian children; Off-reservation boarding schools; United States. Bureau of Indian Affairs; Class actions (Civil procedure).

*Synopsis: Former students of a parochial school brought an action against diocese and three alleged providers of teachers and staff, asserting claims of childhood sexual abuse. Summary judgment was granted in favor of defendants based on a conclusion that the sexual-abuse claims were barred by the applicable statute of limitations. Ten former students moved to amend the complaint. Nine of those ten students filed an appeal before a ruling on the motion to amend was made. Notwithstanding the filing of an appeal, the Circuit Court, Second Judicial Circuit, Minnehaha County, Bradley G. Zell, J., held a hearing on the merits and denied the motion. The nine students appealed the denial.

*Holding: The Supreme Court, Zinter, J., held that:
(1) defendants did not presumptively show that former students filed action beyond statutory limitations period, and thus burden did not shift to students to show application of an exception to limitations period;
(2) defendants presumptively showed that one former student's claim was asserted beyond limitations period, and thus burden shifted to student to show application of an exception to limitations period;
(3) summary-judgment affidavit of former student did not suffice to meet his burden of showing application of an exception to limitations period, and thus student's claim was time barred; and
(4) former student did not make a showing necessary to toll statute of limitations under equitable theory of estoppel by duress, assuming that such exception to a statute of limitations would be recognized.
Affirmed in part and reversed and remanded in part.

One Star v. Sisters of St. Francis, Denver, CO
752 N.W.2d 668, Docket No. 24313
Supreme Court of South Dakota, June 25, 2008

Subjects: Abused Indian children; Off-reservation boarding schools; United States. Bureau of Indian Affairs; Class actions (Civil procedure).

*Synopsis: Former boarding school students brought action against boarding school and various religious entities for physical and sexual abuse allegedly perpetrated by members of the entities who worked at the school. The Circuit Court, Seventh Judicial Circuit, Pennington County, A.P. Fuller, J., denied religious entity's motion for summary judgment on statute of limitations grounds, and religious entity appealed.

*Holding: The Supreme Court, Zinter, J., held that:
(1) religious entity presumptively established for summary judgment purposes that male former boarding school student had actual knowledge of the causal connection between abuse and injuries more than three years before bringing action;
(2) religious entity presumptively established for summary judgment purposes that female former boarding student knew of a causal connection between her anger management problem and abuse more than three years before bringing action;
(3) students' general assertions in their summary judgment affidavits were insufficient to rebut religious entity's presumptive showing;
(4) psychologist's summary judgment affidavit regarding “new injury” did not create a material issue of disputed fact;
(5) federal class action lawsuit did not toll the statute of limitations;
(6) fraudulent concealment did not toll the statute of limitations; and
(7) equitable theory of estoppel by duress did not apply to toll the statute of limitations.
Reversed.

Valerie M. v. Arizona Department of Economic Security
195 P.3d 192, Docket No. 1 CA-JV 07-0033
Court of Appeals of Arizona, Division 1, Department A, June 17, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Arizona; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights - Termination.

*Synopsis: Mother appealed order of the Superior Court, Maricopa County, No. JD 13827, Frank Johnson Jr., J., terminating her parental rights to her three children.

*Holding: The Court of Appeals, Hall, J., held that:
(1) reasonable doubt standard under Indian Child Welfare Act (ICWA) does not preempt the state-imposed burdens of proof for establishing termination grounds and best interests findings;
(2) statutory termination grounds and best interests findings are to be found under the “clear and convincing evidence” standard; and
(3) conflicting rule, requiring application of “beyond a reasonable doubt” standard in cases involving Indian children, was invalid.
Affirmed.

Wilson W. v. State of Alaska
185 P.3d 94, Docket No. S-12828
Supreme Court of Alaska, June 13, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Child welfare; United States. Indian Child Welfare Act of 1978; Child in need of aid; Family violence; Family reunification.

*Synopsis: Office of Children's Services (OCS) filed petition for adjudication of children as children in need of aid. The Superior Court, Third Judicial District, Palmer, Kari C. Kristiansen, J., found that the children were Indian children within meaning of the Indian Child Welfare Act (ICWA), that the children were children in need of aid, and that OCS complied with the placement preferences and concerns of the ICWA. Father appealed.

*Holding: The Supreme Court, Carpeneti, J., held that OCS met its duty under the ICWA to make active efforts to provide remedial services designed to prevent the breakup of the family, despite father's unwillingness to participate in his case plan and his threats of violence against OCS caseworkers.
Affirmed.

In re N.N.E.
752 N.W.2d 1, Docket No. 07-0123
Supreme Court of Iowa, June 13, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Child welfare; United States. Indian Child Welfare Act of 1978; Foster care placement.

*Synopsis: Adoption attorney filed petition to terminate parental rights of Indian mother, who sought to place her child for adoption with non-Indian family. Indian tribe filed a motion to intervene. The District Court, Woodbury County, Mary Jane Sokolovske, J., terminated the parental rights of mother and the putative fathers, and tribe appealed.

*Holding: The Supreme Court, Streit, J., held that:
(1) Iowa Indian Child Welfare Act's (ICWA) preferred placement provisions, as they apply to voluntary termination of parental rights, violate due process because they are not narrowly tailored;
(2) in order to deviate from federal ICWA's placement preferences, the juvenile court was required to make specific findings supporting good cause, and because court did not make such findings, case would be remanded;
(3) juvenile court's order, appointing adoption attorney as child's custodian, resulted in a foster care placement which required attorney to send Indian tribe notice ten days beforehand; and
(4) as matter of apparent first impression, Indian tribe should be permitted to represent itself in ICWA proceedings; disapproving In re J.W., 498 N.W.2d 417.
Reversed and remanded.

Related News Stories: Iowa Supreme Court rules in Indian adoption case [ICWA] (Radio Iowa) 6/13/08

State ex rel Dewberry v. Kulongoski
187 P.3d 220, Docket Nos. 160323044; A124001
Court of Appeals of Oregon, June 11, 2008

Subjects: Indian gaming -- Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians of Oregon; Gambling on Indian reservations -- Oregon; Intergovernmental agreements -- Oregon; Intergovernmental agreements -- Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians of Oregon; Oregon. Governor -- Powers and duties; Constitutional law -- Oregon.

*Synopsis: Relators petitioned for writ of mandamus to bar state from carrying out compact that permitted Confederated Tribes of Coos, Lower Umpqua, and Suislaw Indians to open casino. The Circuit Court, Lane County, Karsten H. Rasmussen, J., dismissed petition. Relators appealed dismissal but successfully moved to hold appeal in abeyance pending resolution of their declaratory judgment action in federal court. Following federal court's dismissal of that action, relators reactivated appeal.

*Holding: The Court of Appeals, Haselton, P.J. held that:
(1) rule of civil procedure pertaining to joinder of necessary parties does not apply in mandamus proceedings;
(2) declaratory judgment action was neither a plain nor adequate alternative remedy so as to bar mandamus action because availability of declaratory relief would be unilaterally controlled by adverse party, i.e., the Confederated Tribes; and
(3) claim preclusion was not alternative basis for affirming judgment.
Reversed and remanded.

Langdeau v. Langdeau
751 N.W.2d 722, Docket Nos. 24546, 24547, 24593
Supreme Court of South Dakota, June 11, 2008

Subjects: Divorce suits -- South Dakota; Divorce suits -- Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; Non-Indians; Tribal members; Jurisdiction -- Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; Jurisdiction -- South Dakota.

*Synopsis: Husband filed motions to dismiss wife's divorce action and the temporary protection order based on lack of jurisdiction. The Circuit Court of the Sixth Judicial Circuit, Lyman and Hughes Counties, Lori S. Wilbur, J., dismissed the divorce action and the temporary protection order. Wife appealed.

*Holding: The Supreme Court, Gilberston, C.J., held that:
(1) trial court lacked jurisdiction over child custody proceeding in divorce case;
(2) trial court erred when it determined that it did not have jurisdiction over divorce proceeding;
(3) trial court was not required to exercise temporary emergency jurisdiction over child custody matters in divorce proceeding; and
(4) trial court was required to enter findings of fact and conclusions of law before granting recognition of tribal court protection order.
Affirmed in part, reversed in part, and remanded in part.

State of Washington v. Pink
185 P.3d 634, Docket No. 36485-9-II
Court of Appeals of Washington, Division 2, June 3, 2008

Subjects: Traffic violations -- On Indian reservations; Jurisdiction -- Quinault Tribe of the Quinault Reservation, Washington; Jurisdiction -- Washington (State); Roads - Right of way - Quinault Tribe of the Quinault Reservation, Washington.

*Synopsis: Defendant, a tribal member, was charged with unlawful possession of a firearm, arising from traffic stop on Indian reservation. The Superior Court, Grays Harbor County, David E. Foscue, J., granted defendant's motion to dismiss. State appealed.

*Holding: The Court of Appeals, Quinn-Brintnall, J., held that:
(1) tribe did not transfer ownership of land to the State when it granted the State easement to build highway;
(2) tribe continued to have jurisdiction to prosecute crimes committed on the land by tribal members, except for statutory exceptions; and
(3) State did not have jurisdiction because defendant did not commit any traffic violations involving the operation of a motor vehicle.
Affirmed.

Shepherd v. Stade
2008 WL 2246259, Docket No. A07-1220
Court of Appeals of Minnesota, June 3, 2008

Subjects: Trespass -- Casinos - Shakopee Mdewakanton Sioux Community of Minnesota; Employees, Dismissal of.

*Synopsis: (from the opinion) Appellant asserts that the Shakopee Mdewakanton Sioux Community (the tribe) is an indispensable party to the suit and that, because the tribe cannot be joined, the suit must be dismissed. We conclude that the tribe is neither a necessary nor an indispensable party and therefore affirm the district court's decision.

*Holding: not yet available

May

Pam R. v. State of Alaska, Dept. of Health and Social Services, Office of Children's Services
185 P.3d 67, Docket No. S-12742
Supreme Court of Alaska, May 23, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Child welfare; United States. Indian Child Welfare Act of 1978; Grandparents; Foster home care.

*Synopsis: Following hearing held on grandmother's status as Indian custodian of her three grandchildren under the Indian Child Welfare Act (ICWA) following children's placement in custody of Office of Children's Services (OCS), the Superior Court, Third Judicial District Anchorage, K. Tan, J., found that grandmother was not the Indian custodian of her grandchildren. Grandmother appealed.

*Holding: The Supreme Court, Winfree, J., held that record supported trial court's finding that grandmother was not Indian custodian of her dependent grandchildren under the ICWA based on parental transfer to her of the temporary physical care, custody, and control of the grandchildren, or based on tribal custom.
Affirmed.

In re Rayna N.
77 Cal.Rptr.3d 628, Docket No. B206049
Court of Appeal, Second District, Division 4, California, May 23, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Family reunification.

*Synopsis: Child dependency proceedings were initiated. The juvenile court terminated reunification proceedings at a review hearing. Mother petitioned for a writ of mandate to compel the juvenile court to vacate its order terminating reunification services as to her children.

*Holding: The Court of Appeal, Willhite, J., held that notice given by county department of children and family services (DCFS) to Indian tribes or the Bureau of Indian Affairs was insufficient to comply with the Indian Child Welfare Act (ICWA).
Writ issued.

Piedra, Inc. v. State of New Mexico Transportation Commission
188 P.3d 106, Docket No. 26,923
Court of Appeals of New Mexico, May 22, 2008

Subjects: Conveyancing -- New Mexico; Ohkay Owingeh, New Mexico; Roads – Right of way -- On Indian reservations; New Mexico. Dept of Transportation; New Mexico State Transportation Commission.

*Synopsis: After State's declaration of vacation and abandonment of right-of-way easement for state road on land owned by Indian tribe, owner of gravel mining operation situated along the road brought mandamus action against the Department of Transportation, its Cabinet Secretary, the State Transportation Commission, and its individual Commissioners, to require defendants to maintain the road as a state road in the state highway system. The District Court, Rio Arriba County, Timothy L. Garcia, D.J., granted summary judgment to plaintiff. Defendants appealed.

*Holding: The Court of Appeals, Jonathan B. Sutin, C.J., held that defendants, in connection with declaration of vacation and abandonment of right-of-way easement for state road on land owned by Indian tribe, which road was part of state highway system, had statutory authority to convey the road to the Indian tribe, and to convey to a county the remaining portions of the road that were outside the Indian tribe's land but within the county.
Reversed.

Thomas H. v. State of Alaska, Dept. of Health & Social Services, Office of Children's Services
184 P.3d 9, Docket No. S-12847
Supreme Court of Alaska, May 16, 2008

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

*Synopsis: Office of Children Services (OCS) filed petition to terminate father's parental rights to Indian children. The Superior Court, Third Judicial District, Anchorage, Stephanie E. Joannides, J., granted petition. Father appealed.

*Holding: The Supreme Court, Fabe, C.J., held that:
(1) father failed to remedy the conduct or conditions that placed the children at substantial risk of harm, such that termination of father's parental rights was warranted;
(2) OCS made requisite "active efforts" under Indian Child Welfare Act (ICWA) prior to petitioning for termination of father's parental rights; and
(3) qualified expert testimony, in combination with substantial evidence in record, supported determination that children would likely be harmed if returned to father.
Affirmed.

Terry v. Mohegan Tribal Gaming Authority
2008 WL 2313677, Docket No. 4107163
Superior Court of Connecticut, May 16, 2008

Subjects: Civil jurisdiction -- Mohegan Indian Tribe of Connecticut; Sovereign immunity -- Mohegan Indian Tribe of Connecticut; Torts.

*Synopsis: (from the opinion) The defendant, Mohegan Tribal Gaming Authority, d/b/a Mohegan Sun Casino, has filed a motion to dismiss the complaint for interpleader, asserting that, pursuant to the doctrine of sovereign immunity, the court lacks subject matter jurisdiction.

*Holding: not yet available

Day Wholesale, Inc. v. State
856 N.Y.S.2d 808, Docket No. 07-02540
Supreme Court, Appellate Division, Fourth Department, New York, May 2, 2008

Subjects: Cigarettes -- Labeling -- New York (State); Seneca Nation of New York -- Members.

*Synopsis: Cigarette wholesale dealer brought action against State and Attorney General, seeking injunction to prevent enforcement of amended version of tax law regarding cigarette sales on Indian reservations. The Supreme Court, Erie County, Rose H. Sconiers, J., granted preliminary injunction. State and Attorney General appealed.

*Holding: The Supreme Court, Appellate Division, Green, J., held that amended version of statute regarding taxation on cigarettes sold on Indian reservations was not presently in effect.
Affirmed.

April

Ogden v. Iowa Tribe of Kansas and Nebraska
250 S.W.3d 822, Docket No. WD 67912
Missouri Court of Appeals, Western District, April 29, 2008

Subjects: Sovereign immunity -- Iowa Tribe of Kansas and Nebraska ; Employees, Dismissal of -- Iowa Tribe of Kansas and Nebraska; Labor contracts -- Iowa Tribe of Kansas and Nebraska; Indian business enterprises -- Iowa Tribe of Kansas and Nebraska.

*Synopsis: Former employee brought action against his employer, a Native American tribe, for breach of employment agreement and wrongful discharge. The Circuit Court, Holt County, Roger Martin Prokes, J., granted employer's motion to dismiss based upon tribal sovereign immunity. Former employee appealed.

*Holding: The Court of Appeals, James M. Smart, Jr., J., held that on a question of first impression, tribal sovereign immunity barred the suit of a former employee against the tribe itself relating to his employment at a tribal business located off the reservation.
Affirmed.

State ex rel. Suthers v. Cash Advance and Preferred Cash Loans
2008 WL 1745824, Docket No. 07CA0582
Colorado Court of Appeals, Div. II, April 17, 2008

Subjects: Internet business enterprises; Jurisdiction -- Colorado; Indian business enterprises; Offices -- Location; Santee Sioux Nation, Nebraska; Miami Nation of Oklahoma.

*Synopsis: State Attorney General opened investigation against two internet lending businesses to determine whether their lending practices violated Uniform Commercial Credit Code (UCCC) and the Colorado Consumer Protection Act (CCPA). Following failure of purported corporate owners of businesses to answer subpoenas, and initiation of contempt proceedings, purported owners moved to dismiss. Two corporations formed by tribal nations, claiming to own the lending businesses, joined the motion, asserting tribal sovereign immunity. The District Court, City and County of Denver, Robert S. Hyatt, J., denied the motion, and the tribal nations appealed.

*Holding: The Court of Appeals, Bernard, J., held that:
(1) triable issues existed as to whether internet lending businesses were sufficiently affiliated with the tribes to assert tribal sovereign immunity;
(2) tribal nations' conduct of operating internet money lending websites constituted off-reservation conduct;
(3) tribal sovereign immunity did not prevent enforcement of Attorney General's subpoenas; and
(4) eleven factors would be used to determine whether tribal sovereign immunity applied.
Reversed and remanded.

In re R.T.R.
183 P.3d 205, Docket Nos. 05579J; A137242
Court of Appeals of Oregon, April 16, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Oregon; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights - Termination.

*Synopsis: Termination of parental rights proceedings were brought against mother. The Circuit Court, Lane County, Gregory Foote, J., entered order terminating mother's parental rights. Mother appealed.

*Holding: The Court of Appeals held that trial court's findings supported termination, although finding that mother used methamphetamine during pregnancy was not sufficient by itself to support termination.
Affirmed.

Erika K. v. Brett D.
75 Cal.Rptr.3d 152, Docket No. A116590
Court of Appeal, First District, Division 1, California, April 10, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Foster care placement.

*Synopsis: Indian mother filed petition for custody of Indian child living with third party caretaker. Caretaker was joined as a party. The Superior Court, Humboldt County, No. FS030459, J. Michael Brown, J., granted custody of child to caretaker. Mother appealed.

*Holding: The Court of Appeal, Margulies, J., held that:
(1) caretaker could be properly joined as a party to mother's petition;
(2) grant of child custody to unrelated, third party custodian does not require filing of guardianship petition;
(3) nonparent may be awarded custody even when a parent seeks custody;
(4) statute governing grant of child custody to a nonparent would apply, even though child originally came into care of nonparent as a result of consensual arrangement; and
(5) trial court was not to consider whether Indian Child Welfare Act (ICWA) was unconstitutional as applied to child before applying substantive provisions of the ICWA to determine whether a constitutional issue actually existed.
Reversed and remanded.

In re Alice M.
74 Cal.Rptr.3d 863, Docket No. H031794
Court of Appeal, Sixth District, California, April 9, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Indian children -- Defined.

*Synopsis: The Superior Court, Monterey County, No. H030449, terminated mother's parental rights. Mother appealed. The Court of Appeal, 2007 WL 467761, reversed. On remand, the Superior Court, Monterey County, No. J40094, Russell D. Scott, J., again terminated parental rights. Mother appealed.

*Holding: The Court of Appeal, Mihara, J., held that:
(1) mother's failure to object did not forfeit argument of improper Indian Child Welfare Act (ICWA) notice;
(2) juvenile court had reason to know that child may be Indian child;
(3) notice requirements, rather than only duty of further inquiry, were triggered;
(4) notices did not comply with statutory requirements;
(5) notices did not substantially comply with ICWA; and
(6) notice to the Bureau of Indian Affairs (BIA) was not adequate substitute for notice to tribes.
Reversed and remanded with directions.

Karrie B. v. Catherine J.
181 P.3d 177, Docket No. S-12675
Supreme Court of Alaska, April 4, 2008

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

*Synopsis: Office of Children's Services (OCS) filed a petition to terminate mother's parental rights to her two children. After a hearing, the Superior Court, First Judicial District, Juneau, Patricia R. Collins, J., declined to order termination. The children's guardian ad litem (GAL) appealed.

*Holding: The Supreme Court, Matthews, J., held that:
(1) absence of favorable long-term placement options was a valid factor for trial court to consider when determining whether termination was in children's best interests;
(2) mother's ability to stay sober and her determination to stay sober were relevant factors for trial court to consider in determining whether termination was in children's best interests; and
(3) bond between mother and children was an appropriate consideration of trial court in determining whether termination was in children's best interests.
Affirmed.

Bodkin v. Cook Inlet Region, INC.
182 P.3d 1072, Docket No. S-11870.
Supreme Court of Alaska, April 4, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Alaska Native corporations; Dividends; Age discrimination; Due process of law; United States. Constitution. 5th Amendment; Cook Inlet Region, Inc.; United States. Alaska Native Claims Settlement Act.

*Synopsis: Shareholders in Alaska Native regional corporation organized under the Alaska Native Claims Settlement Act (ANCSA) brought class action against the corporation, challenging payments to original shareholders over the age of 65. The Superior Court, Third Judicial District, Anchorage, Dan A. Hensley, J., granted corporation's motion to dismiss. Shareholders appealed.

*Holding: The Supreme Court, Fabe, C.J., held that:
(1) corporation's cash distribution through its elder benefit program and elder benefit trust was authorized by ANCSA;
(2) United States Court of Federal Claims had jurisdiction over takings claim against the federal government; and
(3) ANCSA did not implicate the Fifth Amendment's takings clause by authorizing a Native regional corporation to create an elders' benefit trust.
Affirmed.

Cornelius v. Kansas Department of Revenue Division of Motor Vehicles
180 P.3d 579, Docket No. 97,466
Court of Appeals of Kansas, April 4, 2008

Subjects: Roadside sobriety tests -- Kansas -- Jackson County; Intergovernmental cooperation -- Prairie Band of Potawatomi Indians, Kansas; Intergovernmental cooperation -- Kansas -- Jackson County; Jurisdiction -- Off Indian reservations -- Prairie Band of Potawatomi Indians, Kansas; Police -- Prairie Band of Potawatomi Indians, Kansas.

*Synopsis: Motorist sought judicial review of suspension of driver's license after he was issued several citations during stop at sobriety checkpoint. The Shawnee District Court, David E. Bruns, J., affirmed, and motorist appealed.

*Holding: The Court of Appeals, Marquardt, J., held that:
(1) corporal for tribal police department did not lack jurisdiction to issue citations to motorist at sobriety checkpoint located outside tribe boundaries, and
(2) corporal had statutory authority to issue traffic citations after he had been deputized by county sheriff.
Affirmed.

March

In re S.L.H.S.
885 N.E.2d 603, Docket No. 20A03-0707-JV-313
Court of Appeals of Indiana, March 31, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Indiana; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: Petition was filed to terminate father's parental rights. The Circuit Court, Elkhart County, Deborah A. Domine, Juvenile Magistrate, and Terry C. Shewmaker, J., terminated father's parental rights, and father appealed.

*Holding: The Court of Appeals, Kirsch, J., held that:
(1) trial court did not lack subject matter jurisdiction over proceedings to terminate father's parental rights based on father's unsupported allegation regarding his Native American heritage;
(2) exclusion of father's testimony about unauthenticated tribal membership card was not abuse of discretion;
(3) evidence that father had sexually molested niece and stepdaughter was relevant to determination whether there was substantial probability of future neglect or deprivation of his child;
(4) continuation of parent-child relationship posed threat to child;
(5) termination of father's parental rights was in best interest of child; and
(6) plan for child to be adopted was satisfactory plan for care and treatment of child after termination of parental rights.
Affirmed.

In re H.B.
74 Cal.Rptr.3d 27, Docket No. B200606
Court of Appeal, Second District, Division 7, California, March 25, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: In child dependency proceeding, the Superior Court, Los Angeles County, Marilyn K. Martinez, Commissioner, terminated mother's parental rights. Mother appealed.

*Holding: The Court of Appeal, Perluss, P.J., held that trial court's error in failing to make required inquiry during child dependency proceeding as to whether child had Indian heritage, as required by Indian Child Welfare Act (ICWA), was harmless.
Affirmed.

In re N.M.
74 Cal.Rptr.3d 138, Docket No. B198837
Court of Appeal, Second District, Division 8, California, March 25, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Family reunification.

*Synopsis: After child protection proceedings were brought, the Superior Court terminated parental rights as to two children. The Court of Appeal, 2006 WL 2556308, ordered a limited reversal of the order of termination for compliance with the Indian Child Welfare Act (ICWA). On remand, the Superior Court, Los Angeles County, No. CK 00574, Steven L. Berman, Juvenile Court Referee, reinstated the termination orders. Parents appealed.

*Holding: The Court of Appeal, Flier, J., held that:
(1) the Superior Court acted in compliance with directive on remand in issuing notice to Indian tribes and in subsequently reinstating order of termination;
(2) the Superior Court was not required to wait for expiration of 60-day period before issuing a finding that the ICWA did not apply to the proceedings; and
(3) father did not raise, for direct appeal, a reviewable claim of ineffective assistance of counsel.
Affirmed.

In re William K.
73 Cal.Rptr.3d 737, Docket No. C055107
Court of Appeal, Third District, California, March 24, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Paternity; Notice (Law).

*Synopsis: While biological father was in prison, county department of social services removed child from custody of mother. At dependency hearing after biological father's release, the Superior Court, Shasta County, No. 26573-01, Monica Marlow, J., found that it would not be in best interest of child to offer reunification services to biological father, adjudged child dependent, found that Indian Child Welfare Act (ICWA) did not apply to child, and adopted reunification plan for mother and presumed father. Biological father appealed.

*Holding: The Court of Appeal, Nicholson, J., held that:
(1) it was not in best interest of child to set aside presumed father's determination of paternity;
(2) biological father did not promptly come forward and demonstrate full commitment to parental responsibilities, for due process purposes; and
(3) biological father's claim of failure to comply with certain ICWA notice requirements was forfeited.
Affirmed.

Cook v. AVI Casino Enterprises, Inc.
2008 WL 4108121
No. 1 CA-CV 07-0110
Court of Appeal, Division 1, Department B, Arizona, March 20, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Jurisdiction -- United States; Sovereign immunity -- Indian business enterprises; Indian business enterprises -- Fort Mojave Indian Tribe of Arizona, California & Nevada; Avi Casino Enterprises, Inc.; Casinos; Liability (Law); Drinking and traffic accidents; Law -- Arizona.

*Synopsis: (from the opinion) Plaintiffs-Appellants Christopher Cook (“Cook”) and Leidra Cook appeal from the trial court's dismissal of all but one of Defendants based on its holding that those Defendants were entitled to sovereign immunity and that there was a lack of personal jurisdiction. Appellants argue that Defendant Avi Casino Enterprises, Inc., (“Avi”) is a separate and distinct legal entity from the Fort Mojave Indian Tribe (“the Tribe”) and, as such, does not enjoy the Tribe's sovereign immunity. Appellants also argue that they have made a prima facie showing of both general and specific personal jurisdiction, making dismissal inappropriate on jurisdictional grounds. For the reasons discussed below, we affirm the trial court's granting of Defendants' motion to dismiss.

*Holding: not yet available

Primeaux v. Dooley
747 N.W.2d 137, Docket No. 24516
Supreme Court of South Dakota, March 19, 2008

Subjects: Jury selection; Trials (Murder).

*Synopsis: Petitioner filed second state habeas petition, following appellate affirmance, 328 N.W.2d 256, of his state court conviction of second-degree murder and two counts of aggravated assault and of his sentence of life imprisonment without parole, dismissal of two federal habeas petitions, appellate affirmance, 502 N.W.2d 265, of denial of his first state court habeas petition, and denial of two additional federal habeas petitions. The Circuit Court, First Judicial Circuit, Charles Mix County, denied petition, and petitioner appealed.

*Holding: The Supreme Court, Konenkamp, Justice. held that:
(1) petitioner failed to establish good cause for omission of constitutional challenge to jury selection process from his prior habeas petition, and
(2) disparity between percentage of Native Americans in county population and in jury pool did not amount to unfair and unreasonable underrepresentation of Native Americans in jury pool.
Affirmed.

In re Alejandro A.
74 Cal.Rptr.3d 44, Docket No. D051300
Court of Appeal, Fourth District, California, March 14, 2008

Subjects: Indian children -- Defined; Vandalism; Juvenile delinquency; California.

*Synopsis: Juvenile was adjudicated delinquent in the Superior Court, San Diego County, No. J209-986, Francis M. Devaney, J., for having committed burglary, willfully and maliciously throwing rocks or other items capable of doing serious bodily harm, and related offenses. Juvenile appealed.

*Holding: The Court of Appeal, Benke, Acting P.J., held that trial court was not required to determine whether juvenile was Indian child within meaning of Indian Child Welfare Act before conducting disposition hearing in delinquency proceedings.
Affirmed.

County of Seneca v. Eristoff
852 N.Y.S.2d 493, Docket No. B200606
Supreme Court, Appellate Division, Third Department, New York, March 6, 2008

Subjects: Indian business enterprises -- Taxation; Non-Indians -- Taxation; Motor fuels -- Taxation; Cigarettes -- Taxation; Tribes -- Commerce -- Taxation -- New York; Seneca County (N.Y.).

*Synopsis: County commenced Article 78 proceeding to compel Commissioner of Taxation and Finance to collect and remit local share of sales and other taxes on cigarettes and motor fuel sold to non-Indians at businesses owned or operated by Indian tribes. The Supreme Court, Albany County, Kavanagh, J., dismissed petition, and county appealed.

*Holding: The Supreme Court, Appellate Division, Rose, J., held that county failed to demonstrate proprietary interest exception to general rule barring suit against state by local governments.
Affirmed.

In re Miracle M.
73 Cal.Rptr.3d 24, Docket Nos. B200319, B200756
Court of Appeal, Second District, California, March 4, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Notice (Law).

*Synopsis: After reports of child abuse occasioned by mother's use of methamphetamine and marijuana, county department of children and family services (DCFS) placed two daughters with paternal aunt. The Superior Court, Los Angeles County, No. BK07648, Deborah L. Losnick, Commissioner, terminated mother's parental rights. Mother appealed.

*Holding: The Court of Appeal, Woods, Acting P.J., held that:
(1) appeal from determination that Indian Child Welfare Act (ICWA) did not apply was waived;
(2) issue of failure to provide ICWA notice was waived; and
(3) any error in failure to provide notice was harmless.
Affirmed in part, reversed in part, and remanded.

February

In re N.E.
73 Cal.Rptr.3d 123, Docket No. G039168
Court of Appeal, Fourth District, Division 3, California, February 29, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: Termination of parental rights proceedings were brought against parents. The Superior Court, Orange County, Gary L. Vincent, J., terminated parental rights. Father appealed.

*Holding: The Court of Appeal, O'Leary, J. held that social worker's failure to ask father if he had Indian heritage did not prejudice father and thus was not grounds for reversal.
Affirmed.

Pocatello v. State
180 P.3d 1048, Docket No. 33669
Supreme Court of Idaho, February 19, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Snake River Basin Adjudication; Water rights -- Idaho -- Pocatello; Railroads -- Right of way -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho.

*Synopsis: City appealed decision in the Snake River Basin Adjudication denying city's claimed federal reserved water right. The Fifth Judicial District Court, Twin Falls County, John M. Melanson, J., affirmed. City appealed.

*Holding: The Supreme Court, Jones, J., held that:
(1) act clearly and unambiguously did not convey a water right to city, and
(2) even if act was ambiguous as to conveyance of a water right, the language would be construed against the city having a federal water right on Indian reservation.
Affirmed.

In re T.A.
883 N.E.2d 639, Docket No. 4-07-0785
Appellate Court of Illinois, Fourth District, February 15, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Illinois; Child welfare; United States. Indian Child Welfare Act of 1978; Indians of North America -- Defined.

*Synopsis: Father appealed from decision of the Circuit Court, Champaign County, Holly F. Clemons, J., finding child neglected and granting custody and guardianship of child to the guardianship administrator of the Department of Children and Family Services (DCFS).

*Holding: The Appellate Court, Myerscough, J., held that:
(1) record was insufficient to require the trial court, in neglect proceeding, to make a determination on the record whether child was an Indian child under Indian Child Welfare Act; and
(2) mother's statements to caseworker that she was of Native American descent and that, to her knowledge, none of her family members were registered with any tribes did not give the trial court reason to know that child was an Indian child, so as to trigger notice requirements under Act.
Affirmed.

In re M.B.
176 P.3d 977, Docket No. 98,387
Court of Appeals of Kansas, February 15, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Kansas; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: The State petitioned to terminate mother and father's parental rights to their two children. The District Court, Johnson County, Kathleen Sloan, J., terminated parental rights. Father appealed. The Court of Appeals dismissed the appeal and remanded the case. On remand the District Court determined that the Indian Child Welfare Act (ICWA) applied, and declined to invalidate any of its prior rulings. Father appealed.

*Holding: The Court of Appeals, Malone, J., held that:
(1) trial court failed to comply with the notice provisions of the ICWA;
(2) trial court error in failing to promptly provide Indian tribe with notice of children in need of care (CINC) proceedings was remedied when Indian tribe intervened in proceedings after termination of parental rights; and
(3) evidence was sufficient to support termination of father's parental rights to his two children.
Affirmed.

In re N.V.
744 N.W.2d 634, Docket No. 07-0583
Supreme Court of Iowa, February 15, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Child welfare; United States. Indian Child Welfare Act of 1978; Jurisdiction -- Transfer -- Sac & Fox Tribe of the Mississippi in Iowa.

*Synopsis: At termination of parental rights hearing, mother requested the court to transfer jurisdiction of the proceeding to tribal court, and father joined the request. The District Court, Polk County, Constance Cohen, Juvenile Judge, granted the request. The State appealed.

*Holding: The Supreme Court, Wiggins, J., held that:
(1) trial court could not deny mother's request to transfer termination of parental rights proceeding to tribal court based on mother filing her request the day of scheduled termination hearing;
(2) evidence supported finding that neither the parties nor the witnesses would suffer undue hardship if the termination of parental rights case was transferred to tribal court; and
(3) doctrine of estoppel did not prevent parents from requesting transfer of termination of parental rights proceeding to tribal court.
Affirmed.

In re Miracle M.
73 Cal.Rptr.3d 24, Docket Nos. B200319, B200756
Court of Appeal, Second District, Division 7, California, February 14, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Notice (Law).

*Synopsis: After reports of child abuse occasioned by mother's use of methamphetamine and marijuana, county department of children and family services (DCFS) placed two daughters with paternal aunt. The Superior Court, Los Angeles County, No. BK07648, Deborah L. Losnick, Commissioner, terminated mother's parental rights. Mother appealed.

*Holding: The Court of Appeal, Woods, Acting P.J., held that:
(1) appeal from determination that Indian Child Welfare Act (ICWA) did not apply was waived;
(2) issue of failure to provide ICWA notice was waived; and
(3) any error in failure to provide notice was harmless.
Affirmed in part, reversed in part, and remanded.

In re A.A.
176 P.3d 237, Docket No. 98,835
Court of Appeals of Kansas, February 8, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Kansas; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: After ten-year-old child was found to be in need of care, the District Court, Barton County, Hannelore Kitts, J., terminated mother's and father's parental rights. Mother and father appealed.

*Holding: The Court of Appeals, Leben, J., held that:
(1) as a matter of first impression, the Revised Kansas Code for Care of Children, which provides that parental rights may be terminated only upon a showing of unfitness by clear and convincing evidence, does not violate the equal protection rights of non-Native Americans, though the federal Indian Child Welfare Act requires an even greater evidentiary hurdle before parental rights between Native American parents and children may be terminated;
(2) substantial evidence supported trial court's finding of parental unfitness;
(3) continuance of trial court hearing was not required; and
(4) trial court was not required to personally interview the child.
Affirmed.

Spota v. Jackson
853 N.Y.S.2d 520, Docket No. 1
Court of Appeals of New York, February 7, 2008

Subjects: Non-Indians -- On Indian reservations -- Unkechaug Indian Nation (N.Y.); Residency requirements -- Unkechaug Indian Nation (N.Y.); Family violence.

*Synopsis: District Attorney, acting on behalf of Indian tribe, applied for order under the Indian Law to remove a non-member from lands of the Unkechaug Indian Nation as an intruder. The County Court, Suffolk County, Hinrichs, J., denied the petition, and appeal was taken. The Supreme Court, Appellate Division, 832 N.Y.S.2d 574, affirmed, and leave to appeal was granted.

*Holding: The Court of Appeals, Kaye, C.J, held that:
(1) statute barring non-members from residing or settling on Indian lands did not give county courts discretion to determine, independent of Indian nation, whether a person is an “intruder” on tribal land, and
(2) tribal member's wife, who was not a member of the tribe but resided on a reservation allotment, became an “intruder” on Indian land within meaning of the statute after member's interest in the allotment was transferred to his brother.
Reversed.

Bittle v. Bahe
192 P.3d 810, Docket No. 103716
Supreme Court of Oklahoma, February 5, 2008

Subjects: Sovereign immunity -- Absentee-Shawnee Tribe of Indians of Oklahoma; Jurisdiction -- Oklahoma; Thunderbird Entertainment Center, Inc.; Liability (Law); Drunk driving.

*Synopsis: Motorist who was injured in collision with vehicle allegedly driven by intoxicated casino patron filed action against, among others, the casino and the Indian tribe that operated it, alleging dram shop liability. The District Court, Pottawatomie County, Douglas Combs, J., dismissed action on ground of tribal sovereign immunity. Motorist appealed. The Court of Civil Appeals, Division III, affirmed.

*Holding: Granting petition for certiorari review, the Supreme Court, Taylor, J. held that:
(1) words “laws of the state,” as used in federal statute that permits furnishing of intoxicating liquor in Indian country, if done in conformity both with laws of state in which such act or transaction occurs and with an ordinance duly adopted by tribe, includes laws providing for dram shop liability; and
(2) Indian casino, in obtaining state license to serve alcoholic beverages for on-premises consumption at the casino, waived any tribal sovereign immunity it may have had to suit in state courts including a common-law negligence action for dram shop liability.
Opinion of the Court of Civil Appeals vacated; dismissal order of the district court reversed and cause remanded.

Related News Stories: Court allows lawsuit over casino-related crash (Indianz.com) 2/6/08

Maisy W. v. State Department of Health and Social Services
175 P.3d 1263, Docket No. S-12704
Supreme Court of Alaska, February 1, 2008

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.

*Synopsis: Mother appealed from decision of the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, J., terminating her parental rights.

*Holding: The Supreme Court, Eastaugh, J., held that:
(1) mother failed to sufficiently remedy the conduct in the home that had placed the child at substantial risk of harm; and
(2) evidence in termination of parental rights case involving Indian children supported trial court's finding that the State made active efforts to prevent the breakup of the Indian family.
Affirmed.

January

Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawai'i
177 P.3d 884, Docket No. 25570
Supreme Court of Hawai'i, January 31, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Office of Hawaiian Affairs; Land titles – Registration and transfer -- Maui (Hawaii); Land titles -- Registration and transfer -- Hawaii Island (Hawaii); Transfer (Law); Public lands -- Hawaii; Trust lands -- Hawaii; Housing and Community Development Corporation of Hawaii.

*Synopsis: Office of Hawaiian Affairs (OHA), and native Hawaiians, brought action for declaratory and injunctive relief against State and against Housing and Community Development Corporation of Hawai‘i (HCDCH), seeking to enjoin defendants from alienating ceded lands from the public lands trust. After jury-waived trial, the First Circuit Court, Sabrina S. McKenna, J., entered partial judgment for defendants, and certified the judgment for interlocutory appeal.

*Holding: The Supreme Court, Moon, C.J., held that:
(1) joint resolution of United States Congress, and related State legislation, give rise to State's fiduciary duty to preserve the corpus of the public lands trust, i.e., the ceded lands, until such time as unrelinquished claims of native Hawaiians are resolved;
(2) earlier action did not have collateral estoppel effect;
(3) action was not barred by sovereign immunity;
(4) Office of Hawaiian Affairs did not waive its claims, through its conduct;
(5) claims were ripe;
(6) action did not present a nonjusticiable political question, and
(7) issuance of permanent injunction was warranted.
Vacated and remanded.

Polk County v. Department of Land Conservation and Development
176 P.3d 432, Docket Nos. 03WKTASK001541; A122385 (Control), A122732
Court of Appeals of Oregon, January 30, 2008

Subjects: Cities and towns – Growth -- Oregon; Trust lands -- Confederated Tribes of the Grand Ronde Community of Oregon; Zoning law -- Oregon; Land use -- Oregon.

*Synopsis: County and activist group sought review of a Land Conservation and Development Commission (LCDC) order which required county to justify an exception to a Statewide Land Use Planning Goal and to take action under the additional provisions of an LCDC rule regarding an area which the county sought to designate as an urban unincorporated community. The Court of Appeals affirmed and dismissed activist group's petition for lack of standing, 199 Or.App. 501, 112 P.3d 409, and activist group appealed. The Supreme court vacated and remanded, 342 Or. 344, 153 P.3d 123.

*Holding: On remand, the Court of Appeals, Landau, P.J., held that:
(1) activist group had standing to appeal LCDC decision;
(2) LCDC could treat boundaries drawn in county's initial application of the Unincorporated Communities Rules as the establishment, rather than the expansion, of community boundaries;
(3) Indian lands held in trust could be included within the boundaries of county's proposed unincorporated communities without the taking of exceptions to the Statewide Planning Goals;
(4) LCDC's transportation planning rule did not require that permitted land uses in county's proposed unincorporated communities be consistent with the transportation infrastructure currently provided; and
(5) county's zoning within its proposed unincorporated communities was not restricted by the population projections of the Statewide Planning Goals.
Affirmed.

State v. Quintana
178 P.3d 820, Docket No. 29,909
Supreme Court of New Mexico, January 25, 2008

Subjects: Indian Country (U.S.) -- Defined; Criminal jurisdiction -- Mexico; Traffic accidents -- Pueblo of Cochiti, New Mexico -- Members; Homicide -- New Mexico.

*Synopsis: Native American defendant was charged with vehicular homicide and great bodily injury by reckless driving. The District Court, Sandoval County, Louis P. McDonald, D.J., denied defendant's motion to dismiss for lack of jurisdiction, and defendant appealed. The Court of Appeals affirmed.

*Holding: On certiorari review, the Supreme Court, Edward L. Chavez, C.J., held that land where crimes occurred was not Indian country.
Affirmed.

In re Walter W.
744 N.W.2d 55, Docket No. S-07-393
Supreme Court of Nebraska, January 18, 2008

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; Parental rights -- Termination.

*Synopsis: Mother of Indian child appealed from order of the Separate Juvenile Court, Douglas County, Elizabeth G. Crnkovich, J., terminating her parental rights. The Court of Appeals, 14 Neb.App. 891, 719 N.W.2d 304, vacated and remanded. On remand the Juvenile Court terminated parental rights. Mother appealed.

*Holding: The Supreme Court, Connolly, J., held that:
(1) evidence supported finding that the State made active efforts to provide remedial services and rehabilitative programs to mother;
(2) the State's expert established, beyond a reasonable doubt, that returning child to mother was likely to cause serious emotional or physical damage to child; and
(3) evidence was sufficient to establish that termination of mother's parental rights to child was in his best interest.
Affirmed.

Starr v. George
175 P.3d 50, Docket No. S-12456
Supreme Court of Alaska, January 18, 2008

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; Judgments, Foreign; Divorce suits; United States. Indian Child Welfare Act of 1978 -- Application.

*Synopsis: In child custody proceedings between maternal grandparents and paternal grandparents of two Tlingit children after mother killed father, maternal grandparents filed motion seeking to dismiss the custody case on grounds that maternal grandparents had obtained tribal council resolutions approving their adoption of the children. The Superior Court, First Judicial District, Juneau, Larry R. Weeks, J., denied motion and granted physical and legal custody of children to paternal grandparents. Maternal grandparents appealed.

*Holding: The Supreme Court, Eastaugh, J., held that:
(1) Indian Child Welfare Act (ICWA) divorce exception, which excepts from ICWA provisions custody awards to one parent in a divorce proceeding, did not extend to custody disputes between grandparents, and
(2) tribal council resolutions approving adoption, without notice to paternal grandparents, violated due process, and thus were not entitled to comity or full faith and credit under ICWA.
Affirmed.

Yellowbear v. State of Wyoming
174 P.3d 1270, Docket No. 06-246
Supreme Court of Wyoming, January 14, 2008

Subjects: Trials (Murder) -- Wyoming; Indian Country (U.S.) -- Defined; Jurisdiction -- Wyoming; Jurisdiction -- United States; Riverton (Wyo.); Wind River Indian Reservation (Wyo.).

*Synopsis: Defendant was convicted in the District Court of Hot Springs County, David B. Park, J., of two counts of felony murder and two counts of being accessory to felony murder. Defendant appealed.

*Holding: The Supreme Court, Voigt, C. J., held that:
(1) defendant's infant daughter was not killed in Indian country, and thus State of Wyoming rather than the United States had subject matter jurisdiction to prosecute defendant;
(2) instruction regarding defendant's duty to protect his daughter was not warranted, as neither the crime of child abuse, nor the crime of accessory before the fact, contained that duty as an element;
(3) error of trial court in instructing jury on alleged duty of defendant to protect his daughter did not prejudice defendant and was harmless;
(4) defendant could only be convicted of one crime, as a preliminary hearing, arraignment and plea took place on only one crime; and
(5) trial court did not abuse its discretion by denying defendant's motions for a new trial or a mistrial based on alleged prosecutorial misconduct during rebuttal closing argument.
Affirmed and remanded for amendment.

In re J.S.
177 P.3d 590, Docket No. 104648
Court of Civil Appeals of Oklahoma, Division No. 1, January 10, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Oklahoma; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: Mother appealed decision of the District Court, Tulsa County, Carl Funderburk, J., terminating parental rights to minor Indian children.

*Holding: The Court of Civil Appeals, Adams, P.J., held that:
(1) trial court's incorrect application of a heightened “beyond a reasonable doubt” standard of proof was harmless error, but
(2) Indian Child Welfare Act's (ICWA) requirement for “active efforts” at reunification sets a higher standard for social services departments than “reasonable efforts” standard of state termination of parental rights statutes.
Reversed and remanded with directions.

Steven H. v. Arizona Department of Economic Security
173 P.3d 479, Docket No. 1 CA-JV 07-0076
Court of Appeals of Arizona, Division 1, Department B, January 3, 2008

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

*Synopsis: Parents appealed from the decision of the Superior Court, Coconino County, No. MD2006-0031, Margaret A. McCullough, J., ruling that their children, who were Indians and therefore subject to the Indian Child Welfare Act (ICWA), were dependent.

*Holding: The Court of Appeals, Timmer, J., held that guardian ad litem (GAL) failed to prove that parents' continued custody of children would likely have resulted in serious emotional or physical damage to them, as required by ICWA.
Reversed and remanded.

 

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