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August
Greene v. Commissioner of the Minnesota Department of Human Services
2008 WL 3926791
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: (from the opinion) Buddie Greene, an enrolled member of the Minnesota Chippewa Tribe living off the reservation in Aitkin County, challenges the reduction of her benefits under the Minnesota Family Investment Program. After Greene was referred to the Minnesota Chippewa Tribe for employment services, she requested that she receive employment services through the County, and failed to participate in the tribal program. As a result, Greene's cash benefits were reduced. Following an administrative hearing, the Commissioner of the Minnesota Department of Human Services upheld the reduction of Greene's cash benefits. The district court affirmed the Commissioner's decision. On appeal, Greene argued that (1) the Commissioner improperly interpreted Minn.Stat. § 256J.645 (2006) to require her to receive employment services through the Minnesota Chippewa Tribe; and (2) section 256J.645 violates her rights to equal protection under the United States and Minnesota Constitutions. The court of appeals affirmed in a 2-1 decision. Greene v. Comm'r of Minn. Dep't of Human Servs., 733 N.W.2d 490 (Minn.App.2007). We granted review and affirm.
*Holding: not yet available
Justin L. v. Superior Court
2008 WL 3522184
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
2008 WL 3290230
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
2008 WL 3844748
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: (from the opinion) Defendant appeals, arguing that the evidence of his performance on field sobriety tests should have been suppressed because they were administered by a state police officer who is not cross-commissioned with the Bureau of Indian Affairs (BIA) or the Navajo Nation, Defendant is Navajo, and the tests were administered following a stop on the Navajo Nation. We disagree and affirm.
*Holding: not yet available
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: (from the opinion) Appellants Raul and Ann Beltran appeal from the trial court's dismissal of their personal injury complaint against appellees Harrah's Arizona Corporation, Harrah's Entertainment, Inc., and the Ak-Chin Indian Community. The Beltrans contend, for several reasons, the trial court erred in finding them precluded from bringing their claim in superior court on the ground the claim had already been litigated in the Ak-Chin Indian Community tribal court. For the reasons below, we affirm.
*Holding: not yet available
In re "A" Children
2008 WL 2931637
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.
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
2008 WL 2669767, Docket No. SC07-2154
Supreme Court of Florida, July 3, 2008
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
2008 WL 2612035, 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: (from the opinion) Plaintiff commenced this action seeking damages resulting from the alleged breach by defendant, the owner of the Turning Stone Casino & Resort, of its construction contract with plaintiff. Defendant moved to dismiss the complaint on, inter alia, the grounds that Supreme Court “lack[ed] ... subject-matter jurisdiction and personal jurisdiction over [defendant] on the basis of sovereign immunity.” We conclude that the court erred in denying the motion.
*Holding: not yet available
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
2008 WL 2553267, 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
2008 WL 2426807, 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.
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.
Primeaux v. Dooley
2008 WL 740400,
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.
Westlaw citation not currently available,
Docket No. D051300
Court of Appeal, Fourth District, California, March 14, 2008
Subjects: Indian children -- Defined;
Vandalism; Juvenile delinquency; California.
*Synopsis: (from the opinion) Appellant's sole contention is that there is substantial evidence to conclude he may
be an Indian child and therefore an inquiry should have been made to determine if he
actually was an Indian child before any disposition order was made.
*Holding: not yet available
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
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
2008 WL 314902, 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
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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