Subjects: not yet available
*Synopsis: Children's services agency filed petition to terminate incarcerated father's parental rights to his children, one of whom was of Indian descent, for purposes of Indian Child Welfare Act (ICWA). The Superior Court, First Judicial District, Juneau, Patricia A. Collins, J., terminated father's parental rights. Father appealed.
*Holding: The Supreme Court, Carpeneti, C.J., held that:
(1) evidence supported trial court's finding that father had not remedied the
conditions causing harm to his children;
(2) evidence supported trial court's finding that State met its duty under
Indian Child Welfare Act (ICWA) of making "active efforts" to reunify the family;
and
(3) termination was in best interests of children.
Affirmed.
Subjects: not yet available
*Synopsis:Department of Family and Protective Services petitioned to terminate parent-child relationship between mother and her two minor children, who were believed to be of Native American ancestry. The 74th District Court, McLennan County, Gary R. Coley, J., granted petition upon jury determination that parent-child relationship should be terminated and that termination was in the children's best interest. Mother appealed.
*Holding: The Court of Appeals, Tom Gray, C.J., held that:
(1) Indian Child Welfare Act (ICWA) preempted state laws governing waiver of
issues in parental rights termination cases;
(2) trial court had reason to believe that children were Indian children such
that it was required to proceed in accordance with ICWA;
(3) trial court's failure to comply with ICWA's notice provisions was not
harmless error; and
(4) remand was necessary for trial court to determine whether children were
Indian children and comply with ICWA if necessary.
Conditionally affirmed and remanded for further proceedings.
Subjects: not yet available
*Synopsis: Division of Child and Family Services (DCFS) brought action to terminate parental rights to child who was eligible for enrollment with Native American tribe. The Seventh Judicial District Court, White Pine County, Steve L. Dobrescu, J., terminated parental rights. Mother appealed.
*Holding:The Supreme Court, Saitta, J., held that:
(1) dual-standard approach applied to termination of parental rights proceeding
involving child who was eligible to enroll in Native American tribe, as a matter
of first impression;
(2) termination of parental rights was in child's best interests;
(3) evidence of parental fault was sufficient for termination of parental
rights;
(4) mother was an unfit parent;
(5) DCFS failed to meet its beyond a reasonable doubt burden of proof under
Indian Child Welfare Act (ICWA); and
(6) Existing Indian Family (EIF) doctrine applied to child.
Affirmed.
Related News Stories: Supreme Court terminates Ely mother's parental rights after hearing appeal (The Ely Times) 12/30/09
Subjects: not yet available
*Synopsis:Gaming company and its owners brought action for declaratory judgment after state banned video poker in state but carved out exception for federally recognized Indian tribes. The Superior Court, Wake County, Howard E. Manning, Jr., J., entered judgment on the pleadings for company and owners, and state appealed.
*Holding: The Court of Appeals, Robert C. Hunter, J., held that:
(1) statute satisfied Indian Gaming Regulatory Act (IGRA) prerequisite that
North Carolina be a state that permits such gaming, and
(2) IGRA phrase "any person, organization, or entity" allowed state to grant
Indian tribe exclusive Class III gaming rights if law permitted Class III gaming
for Indian tribe.
Related News Stories: N. Carolina appellate court upholds poker ban, Eastern Band Cherokee Gaming Compact (Turtle Talk) 12/22/09.
Subjects: not yet available
*Synopsis: (from the opinion) The facts underlying this case are identical in all material respects to those of two published Court of Civil Appeals opinions, Hall v. Cherokee Nation, 2007 OK CIV APP 49, 162 P.3d 979, and Pales v. Cherokee Nation Enterprises, 2009 OK CIV APP 65, 216 P.3d 309. In those cases, the Court sustained dismissal of a claim filed in the Oklahoma workers' compensation court against a federally-recognized Indian tribe for lack of subject matter jurisdiction.
*Holding: not yet available
Subjects: not yet available
*Synopsis: In dependency proceeding, the Superior Court, Santa Clara County, Nos. JD16971, JD16972, JD16973, terminated mother's parental rights to three children and selected adoption as permanent plan. Mother appealed.
*Holding: The Court of Appeal, Premo, J., held that:
(1) the children were generally adoptable;
(2) mother's evidence of beneficial parental relationship did not preclude termination of parental rights;
(3) Indian Child Welfare Act (ICWA) notices were sufficient despite incorrectly stating it was unknown whether any of the children's relatives lived on a reservation; and
(4) any deficiencies in ICWA notices were de minimis and not prejudicial to termination of mother's parental rights.
Affirmed.
Subjects: not yet available
*Synopsis: Defendant was convicted following bench trial in the Superior Court, Thurston County, Christine A Pomeroy, J., of first degree fish dealing without license, first degree fish trafficking without license, four counts of participation of non-Indian in Indian fishery for commercial purposes, and four counts of first degree commercial fishing without license. Defendant appealed.
*Holding: The Court of Appeals, Houghton, J., held that:
(1) there was no evidence of value of fish defendant attempted to sell, and
(2) defendant was lawfully fishing under tribal code.
Reversed and remanded.
Bridgewater, J., filed an opinion in which he concurred in part and dissented in part.
Subjects: not yet available
*Synopsis: (from the opinion) The issue presented by this petition is whether provisions of the Indian Child Welfare Act apply in juvenile delinquency proceedings where the child is at risk of entering foster care, but where a termination of parental rights is not involved.
*Holding: not yet available
Subjects: not yet available
*Synopsis: In dependency proceeding, the Superior Court, Santa Clara County, Nos. JD16971, JD16972 and JD16973, Kristine Mackin McCarthy, J., terminated mother's parental rights to three children and selected adoption as permanent plan. Mother appealed.
*Holding: The Court of Appeal, Premo, J., held that:
(1) the children were generally adoptable;
(2) mother's evidence of beneficial parental relationship did not preclude termination of parental rights;
(3) Indian Child Welfare Act (ICWA) notices were sufficient despite incorrectly stating it was unknown whether any of the children's relatives lived on a reservation; and
(4) any deficiencies in ICWA notices were de minimis and not prejudicial to termination of mother's parental rights.
Affirmed.
Subjects: not yet available
*Synopsis: In deprived child action involving child and his two half-siblings, in which child's natural mother and his step-father were accused of depriving the three children as a result of domestic violence in the home, child's natural father filed motion to reconsider order transferring jurisdiction of case to Tribal Court. The District Court, Okfuskee County, David N. Martin, J., denied motion. Father appealed.
*Holding: The Court of Civil Appeals, Kenneth L. Buettner, J., held that:
(1) trial court's order transferring deprived child proceeding to Tribal Court absent request to stay transfer pending appeal did not serve to divest state courts of jurisdiction, and
(2) trial court did not have authority to transfer case to Tribal Court over natural father's objection.
Reversed and remanded for further proceedings.
Subjects: not yet available
*Synopsis: After parents executed a voluntary relinquishment of parental rights, the Superior Court, Del Norte County, No. JVSQ-07-6254, Robert W. Weir, J., involuntarily terminated their parental rights and granted a request by the child's foster parents to be designated as prospective adoptive parents. Mother and father appealed.
*Holding: The Court of Appeal, Marchiano, P.J., held that:
(1) voluntary relinquishment precluded court from taking action at involuntary
termination hearing, and
(2) Court would decline to consider mother's objection under the Indian Child
Welfare Act to notice to Indian tribes in light of voluntary relinquishment.
Reversed.
Subjects: not yet available
*Synopsis: (from the opinion) In a unanimous opinion issued today, the Idaho Supreme Court affirmed the district court's dismissal of this case. This case was an attempt to remove tribal video gaming machines from the Fort Hall Indian Casino on the Shoshone-Bannock Tribes Reservation. Wendy Knox and Richard Dotson appeal from an order dismissing their complaint, which asked for a declaratory judgment that Idaho Code sections 67-429B and 67-429C violate article III, section 20 of the Idaho Constitution. Idaho Code sections 67-429B and 67-429C were passed via ballot initiative as Proposition One in the November 2002 general election. Knox and Dotson claim that these code sections, which permit Indian tribes to conduct gambling using tribal video gaming machines and set forth the mechanism for tribes to amend their Tribal-State Gaming Compacts with the State of Idaho, violate the Idaho Constitution's prohibition on gambling within the State of Idaho.
*Holding: not yet available
Subjects: not yet available
*Synopsis: (from the opinion) J.L., L.R., and S.G. appeal from the district court's ruling that they, through their attorney/guardian ad litem, could not object to the transfer of jurisdiction to a tribal court pursuant to Iowa Code section 232B.5 (2009). Because we find section 232B.5 violates the children's due process rights under the United States and Iowa Constitutions, we reverse and remand for further proceedings.
*Holding: not yet available
Subjects: not yet available
*Synopsis: Termination of parental rights proceeding was brought. The Court of Common Pleas, Lycoming County, Orphans' Court Division, No. 6080, Butts, terminated father's parental rights. Father appealed.
*Holding: The Superior Court, No. 2017 MDA 2008, Freedberg, J., held that evidence was sufficient to terminate father's parental rights under Indian Child Welfare Act (ICWA). Affirmed.
Subjects: not yet available
*Synopsis: Indian tribe that owned casino and resort brought action against contractor for alleged breach of construction contract. Contractor asserted counterclaims for, inter alia, breach of implied warranties, quantum meruit, unjust enrichment, and account stated. Tribe moved to dismiss certain counterclaims. The Supreme Court, Onondaga County, Deborah H. Karalunas, J., denied motion in part. Tribe appealed. .
*Holding: The Supreme Court, Appellate Division, held that subject matter jurisdiction did not exist over counterclaims for breach of implied warranties, quantum meruit, unjust enrichment, and account stated. Affirmed as modified.
Subjects: not yet available
*Synopsis: Tribe brought a possessory action, seeking tort damages for use and a determination as to the ownership of property, against defendants who allegedly entered the land and built a fence and culverts. The District Court, Parish of Avoyelles, No. 2005-8606-A, Mark A. Jeansonne, J., signed stipulated judgment awarding possession of disputed property to tribe. Damages issue remained pending. Subsequently, a resort and marina filed a petition of intervention, arguing it acquired a portion of the tract prior to tribe's filing of possessory action. Tribe filed an exception to intervention, asserting trial court lacked subject matter jurisdiction due to sovereign immunity, which was granted. The intervenor appealed.
*Holding:The Court of Appeal, Amy, J., held that tribe's suit did not expressly waive its sovereign immunity to a claim brought by intervention. Affirmed.
Subjects: not yet available
*Synopsis: Defendant was convicted by jury in the District Court, McKinley County, Robert A. Aragon, J., of four counts of issuing a worthless check over $25, and she appealed.
*Holding: The Court of Appeals, Fry, C.J., held that:
(1) although some elements of the crime of issuing worthless checks occurred on
Indian land, New Mexico had jurisdiction to prosecute defendant for these crimes;
and
(2) evidence was insufficient to support defendant's convictions for issuing
worthless checks over $25.
Reversed and remanded.
Subjects: not yet available
*Synopsis: Office of Hawai'ian Affairs (OHA), and native Hawai'ians, sued state and Housing and Community Development Corporation of Hawai'i (HCDCH), seeking to enjoin alienation of ceded lands from public lands trust. Following bench trial, the First Circuit Court, Sabrina S. McKenna, J., entered partial judgment for HCDCH. The Supreme Court, 177 P.3d 884, vacated and remanded with directions to grant injunctive relief, based on federal congressional resolution apologizing for role of United States in overthrowing Hawai'ian monarchy. State petitioned for a writ of certiorari. The United States Supreme Court, --- U.S. ----, 129 S.Ct. 1436, 173 L.Ed.2d 333, reversed and remanded. Following settlement of claims brought by all plaintiffs but one, the State filed motion to dismiss claims of remaining plaintiff.
*Holding: The Supreme Court, Moon, C.J. held that:
(1) plaintiff, a descendant of those peoples inhabiting the Hawai'ian islands in
1778, and claiming Hawai'ian cultural and religious attachments to the 'aina or
land, had standing to enforce State's compliance with public lands trust
provisions, but
(2) in light of legislative enactment setting forth procedures for carrying out
State's fiduciary responsibilities with regard to land trust, plaintiff's
challenge was not ripe for review.
Motion to dismiss appeal denied; circuit court judgment vacated, and case
remanded with directions.
Subjects: not yet available
*Synopsis: Objectors brought reverse validation action against California Infrastructure and Economic Development Bank (I-Bank) and an Indian gaming compact bond issuer, challenging the compact bonds and compact bond contracts. The Superior Court, Sacramento County, No. 06AS00166, Shelleyanne W.L. Chang, J., entered judgment on pleadings for defendants. Objectors appealed and defendants cross-appealed.
*Holding: The Court of Appeal, Scotland, P.J., held that:
(1) statute providing direct review by Supreme Court of judgments under tribal
compact assets securitization provisions was unconstitutional;
(2) unconstitutional statute would be reformed to authorize review only by writ
petition in the Court of Appeal;
(3) limiting review to extraordinary writ did not violate appellate jurisdiction
clause of state constitution; and
(4) limitations period under validation statutes began to run when
securitization provisions went into effect.
Dismissed.
Subjects: not yet available
*Synopsis: In jurisdictional hearing in dependency proceeding, the Superior Court, Stanislaus County, Nos. 515312 & 515313, Nancy B. Williamsen, Commissioner, declared two Indian children dependents of the court and placed them with their father. Mother appealed.
*Holding: The Court of Appeal, Kane, J., held that removal and placement with noncustodial parent did not require finding of likelihood of serious emotional or physical damage.
Affirmed.
Subjects: not yet available
*Synopsis: Department of Health and Human Services initiated proceedings to terminate mother's parental rights. The Eighth Judicial District Court, Cascade County, Kenneth R. Neill, J., terminated parental rights and mother appealed.
*Holding: The Supreme Court, Brian Morris, J., held that:
(1) Indian Child Welfare Act (ICWA) provision pertaining to voluntary placement
of child in foster care did not apply to proceedings initiated by the Department,
and
(2) trial court's acceptance of mother's stipulation to the adjudication of
child as a youth in need of care before it had definitively established child's
Indian status did not invalidate proceedings.
Affirmed.
Subjects: Parental rights -- Termination; Family reunification; Trials (Custody of children) -- Alaska; Evidence, Expert; United States. Indian Child Welfare Act of 1978.
*Synopsis: Mother and father appealed orders of the Superior Court, Second Judicial District, Kotzebue, Richard H. Erlich, J., that terminated their parental rights under the Indian Child Welfare Act (ICWA).
*Holding: The Supreme Court, Fabe, J., held that:
(1) record supported a finding that the Office of Children's Services (OCS) made active but unsuccessful efforts to reunite mother and father with Indian child;
(2) expert had substantial education in his specialty of psychology and, thus, met the heightened standard for qualification as an expert under ICWA;
(3) trial court could allow the expert to testify by telephone; and
(4) trial court could rely in part on the testimony of the expert in finding that continued custody of Indian children by mother and father was likely to result in serious emotional or physical damage to children.
Affirmed.
Subjects: Drunk driving; Indian reservation police; Police pursuit driving; Traffic violations -- On or near Indian reservations.
*Synopsis: Defendant, a non-Indian, who had been detained by a tribal police officer after pursuit beyond the reservation borders after being observed on the reservation driving at night with high beams and drifting across the center divider, was convicted in the Superior Court, Whatcom County, Leon F. Henley, Jr., of driving under the influence (DUI). Defendant appealed.
*Holding: The Supreme Court, Sanders, J., held that:
(1) in a matter of first impression, tribal officer had inherent sovereign
authority to continue fresh pursuit of driver who broke traffic laws on
reservation, and
(2) tribal officer had statutory authority to continue fresh pursuit of driver
who broke traffic laws on reservation.
Affirmed.
Subjects: not yet available
*Synopsis:After mother and father consented to Indian child's adoption by non-Indian parents, Indian tribe objected to the placement of child. The District Court, Oklahoma County, Larry A. Jones, J., placed child with adoptive parents. Indian tribe appealed.
*Holding: The Court of Civil Appeals, Robert Dick Bell, P.J., held that
biological parents' preference for placement of Indian child with non-Indian
adoptive parents constituted good cause to deviate from the statutory placement preferences.
Affirmed.
Subjects: Trials (Custody of children) -- Alaska; Mothers; Family reunification; United States. Indian Child Welfare Act of 1978.
*Synopsis: In dependency case, the Office of Children's Services (OCS) petitioned to extend custody of Indian child for one year, and mother sought enforcement of prior order's reunification deadline. The Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, J., denied mother's request and extended custody for six months. Mother appealed.
*Holding: The Supreme Court, Christen, J., held that:
(1) the trial court was not required to make removal findings in order to extend the OCS custody of child;
(2) evidence supported finding that child continued to be a child in need of aid; and
(3) the trial court was required to determine whether the OCS complied with the Indian Child Welfare Act's (ICWA) placement and active efforts requirements before it could extend OCS's custody of Indian child.
Affirmed; remanded
Subjects: Criminal actions arising in Indian Country; Jurisdiction; Mille Lacs Band of Chippewa Indians.
*Synopsis: Native American member of one band of tribe who was allegedly driving through Indian reservation of another band of the same tribe of which he was not a member was convicted in the District Court, Mille Lacs County, Steven P. Ruble, J., of speeding and failing to provide proof that he had insurance on his vehicle. Native American appealed. The Court of Appeals, 2008 WL 2726950, Toussaint, C.J., affirmed. Native American petitioned for review, which was granted.
*Holding: The Supreme Court, Gildea, J., held that Native American was subject to state court's jurisdiction.
Subjects: Family reunification; Parent and child (Law); Fathers; Paternity; Trials (Custody of children) -- California.
*Synopsis: In jurisdictional and dispositional hearing, in dependency proceeding for three children who were detained from custody of their mother and stepfather, the Superior Court, Los Angeles County, No. CK73398, D. Zeke Zeidler, J., ruled that the children's alleged father was not their presumed father, but ordered reunification services for alleged father. Alleged father appealed.
*Holding: The Court of Appeal, Manella, J., held that:
(1) father's failure to contact or provide support to his children did not warrant rebuttal of presumption of paternity;
(2) there was no causal nexus between injury to child and father's failure to provide support or financial assistance; but
(3) father was unable to provide or arrange care for children at time of jurisdictional hearing. Affirmed in part, reversed in part, and remanded with directions.
Subjects: Trials (Custody of children) -- California; Parental rights -- Termination; Guardianship; Grandparents; United States. Indian Child Welfare Act of 1978.
*Synopsis: The Superior Court, San Diego County, No. EJ2718A, Gary M. Bubis, J., sustained allegations of dependency petition alleging that two-year-old Indian child was at substantial risk of harm because her parents had a history of substance abuse and domestic violence, and issued dispositional order placing child in foster home. Father appealed.
*Holding: The Court of Appeal, Irion, J., held that:
(1) grandmother was "Indian custodian" of child; but
(2) failure to notify grandmother of her right to intervene and request
appointment of counsel did not violate Indian Child Welfare Act (ICWA);
(3) mother's filing of "Revocation of Designation of Indian Custodian"
terminated grandmother's status as custodian;
(4) any error was harmless in the lack of notice to grandmother; and
(5) good cause existed to deviate from ICWA placement preferences by placing
child in foster home.
Affirmed.
Subjects: not yet available
*Synopsis: Private attorney who was appointed to represent indigent parent in termination of parental rights action petitioned for writ of mandamus, seeking order requiring County to pay his attorney fees and expenses. The District Court, Rice County, Thomas M. Neuville, J., granted petition, and ordered County to establish system by which court-appointed attorneys could seek compensation in child protection cases. County appealed.
*Holding: The Court of Appeals, Johnson, J., held that:
(1) district court had authority to appoint private attorney rather than public
defender to represent indigent parent in parental rights termination proceeding
such that attorney was entitled to fees and expenses payable by County and not the
board of public defense;
(2) County was statutorily obligated to pay reasonable compensation to private
attorney;
(3) district court submitted a budget request to county board in a timely manner
for purposes of requiring County to pay attorney's fees;
(4) district court could not issue a peremptory writ of mandamus to order County
to approve system for payment of reasonable compensation to attorneys appointed in
other child-protection cases;
(5) County's appeal was not frivolous as to warrant award of damages; and
(6) district court was not required to award attorney damages under mandamus
statute absent pleading by attorney.
Affirmed in part and reversed in part.
Subjects: Indian children; Foster care placement; Parental rights -- Termination; Jurisdiction; United States. Indian Child Welfare Act of 1978.
*Synopsis: Father appealed, and mother cross-appealed, order of the Separate Juvenile Court, Douglas County, Elizabeth Crnkovich, J., terminating their parental rights to their children.
*Holding: The Court of Appeals, Sievers, J., held that:
(1) evidence established that mother substantially and repeatedly neglected and
refused to give juveniles necessary parental care and protection so as to support
parental rights termination;
(2) evidence supported finding that active efforts had been made to provide
remedial services and rehabilitative programs designed to prevent breakup of
Indian family prior to parental rights termination; and
(3) evidence established that mother's continued custody of children would
likely result in serious emotional or physical damage to children so as to support
parental rights termination.
Affirmed.
Subjects: Developmentally disabled--Institutional care; Dependents -- Care; United States. Indian Child Welfare Act of 1978.
*Synopsis: In dependency proceeding involving 20-year old woman with severe developmental disabilities, the Superior Court, Alameda County, No. J147902, Nancy Lonsdale, Commissioner, ordered placement in group home and terminated dependency jurisdiction. Mother appealed.
*Holding: The Court of Appeal, Siggins, J., held that claim that county social services agency failed to comply with Indian Child Welfare Act (ICWA) was moot, as 20-year old woman would not be an ?Indian child? subject to ICWA proceedings if the challenged orders were reversed.
Affirmed.
Subjects: Criminal actions arising in Indian Country (U.S.); Criminal jurisdiction; Fee lands; Pueblo of Pojoaque, New Mexico.
*Synopsis: Non-Indian mother brought divorce action in state court, and Indian father followed with a parallel action in tribal court. The District Court, Santa Fe County, Barbara J. Vigil, D.J., entered divorce decree and a partial final order finding it had subject matter jurisdiction over child-custody issues. Father appealed. The Court of Appeals, 144 N.M. 761, 192 P.3d 275, reversed the portion of order regarding child custody.
*Holding: After granting mother's petition for writ of certiorari, the Supreme
Court, Bosson, J., held that:
(1) pueblo was not the children's home state under the Uniform Child-Custody
Jurisdiction and Enforcement Act (UCCJEA), which would have vested tribal court
with exclusive jurisdiction over child-custody dispute;
(2) Parental Kidnapping Prevention Act (PKPA) did not apply to tribes, and thus
tribes were not bound to give full faith and credit under the PKPA to state-court
judgments in state-court cases;
(3) District Court and tribal court had concurrent jurisdiction over the
child-custody dispute, subject to principles of comity; and
(4) District Court and tribal court's concurrent jurisdiction over child-custody
dispute was subject to principles of comity.
Reversed and remanded.
Subjects: Gambling -- Equipment and supplies; Jurisdiction; Indian gaming; ZDI Gaming, Inc.; Washington State Gambling Commission.
*Synopsis: Licensed gaming supply distributorship appealed from final declaratory order of State Gambling Commission denying its application for permission to distribute electronic pull-tab machine incorporating cash card technology, which order upheld in part the conclusions of F. Neil Gorrell, Administrative Law Judge. The Superior Court, Pierce County, Bryan Chushcoff, J., transferred venue for the appeal. The Superior Court, Thurston County, Christine A. Pomeroy, J., overruled the Commission's order, remanded, and awarded attorney fees to distributorship. Commission appealed and distributorship cross-appealed.
*Holding: The Court of Appeals, Quinn-Brintnall, J., held that:
(1) Gambling Act's reference to "jurisdiction" referred to venue rather than
subject matter jurisdiction, and
(2) substantial evidence did not support determination of State Gambling
Commission that cash card technology did not meet the Commission's regulatory
definition of "cash," for purposes of regulation requiring a player to purchase
pull tabs with cash, check, or electronic point-of-sale bank transfer.
Commission's appeal denied; cross-appeal granted in part; remanded.
Subjects: Parental rights -- Termination; Parent and child (Law); Trials (Custody of children) -- California; Heritage; Tribal membership; United States. Indian Child Welfare Act of 1978.
*Synopsis: County Department of Health and Human Services filed petition alleging jurisdiction over children. Following a contested hearing, the Superior Court, Marin County, Nos. JV2131A and JV24132A, Mary T. Grove, Commissioner, ordered termination of parental rights, and mother appealed.
*Holding: The Court of Appeal, Margulies, J., held that:
(1) mother could raise for first time on appeal issue of lack of notice to
Indian tribe;
(2) issue of whether children were members of Indian tribe, based on biological
father's adoptive father's one-quarter ancestry, was for tribe to determine such
that tribe was entitled to notice of the proceedings; and
(3) lack of notice was not harmless error.
Conditionally reversed; remanded with directions.
Subjects: Sex offenders; Sex crimes; Courts -- New Mexico; Criminal jurisdiction; Navajo Nation, Arizona, New Mexico & Utah; New Mexico. Sex Offender Registration and Notification Act.
*Synopsis: The State charged defendants, who were enrolled members of an Indian tribe who had also been convicted in federal court of sex crimes, of failure to register as sex offenders, and defendants filed motions to dismiss for lack of jurisdiction. The District Court, San Juan County, John A. Dean, D.J., denied the motions, and the defendants entered conditional guilty pleas that reserved their rights to appeal the jurisdictional issues. Defendants appealed.
*Holding: The Court of Appeals, Bustamante, J., held that the State lacked authority to require defendants to comply with state sex offender registration laws. Reversed.
Subjects: Paternity -- California -- Cases; Child support -- California; Income.
*Synopsis: Mother brought action to establish paternity and child support. After genetic testing confirmed paternity, the Superior Court, San Diego County, No. ED72626, Maureen F. Hallahan, J., entered child support order, and father appealed.
*Holding: The Court of Appeal, McConnell, P.J., held that:
(1) court could include father's bonus income from Indian tribe in his gross
annual income for purposes of determining child support, but
(2) tribe's payment of father's attorney fees could not be included in father's
gross annual income for purposes of child support.
Reversed and remanded.
Subjects: Parental rights -- Termination; Abused Indian children; Parent and child (Law); Mothers; United States. Indian Child Welfare Act of 1978.
*Synopsis: Office of Children's Services (OCS) filed petition to terminate Indian father's and mother's parental rights to their five eldest children. Following a trial, the Superior Court, Third Judicial District, Anchorage, Sharon Gleason, J., terminated parental rights, and parents appealed termination of mother's parental rights.
*Holding: The Supreme Court, Eastaugh, J., held that:
(1) evidence was sufficient to establish that children were in need of aid based
upon mother's neglect, and
(2) evidence was sufficient to establish that OCS made active and reasonable
efforts to prevent the breakup of the Indian family, as required by the Indian
Child Welfare Act (ICWA) in order to terminate mother's parental rights.
Affirmed.
Subjects: Parent and child (Law); Adoption; Trials (Custody of children) -- Oregon; United States. Indian Child Welfare Act of 1978.
*Synopsis: In child dependency proceeding involving mother's two children, the Circuit Court, Jackson County, changed the permanency plan from guardianship to adoption, then later changed the permanency plan from adoption to guardianship. Mother appealed.
*Holding: The Court of Appeals, Edmonds, P.J., held that trial court judgment, which changed the permanency plan for child from guardianship to adoption, failed to comply with statute which required the court to explain why it was not choosing to terminate parental rights and was instead seeking guardianship.
Subjects: Breach of contract; Fraud; Negligence; Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians of the Viejas Reservation, California; Connecticut. Unfair Trade Practices Act.
*Synopsis: Indian tribe brought action against life and health insurance broker, and broker's employer for breach of contract, breach of fiduciary duty, negligence, misrepresentation, fraud and violation of the Connecticut Unfair Trade Practices Act (CUPTA). Following a jury trial, the Superior Court, Judicial District of New London, Seymour L. Hendel, Judge Trial Referee, entered judgment for tribe in the amount of $916,933.98. Broker appealed.
*Holding: The Appellate Court, Robinson, J., held that:
(1) accidental failure of suit statute permitted tribe to bring new action in
state court after voluntary withdrawal from federal court;
(2) evidence was sufficient to support jury award of $678,239.40;
(3) jury verdict was not inconsistent, or manifestly unjust; and
(4) trial court did not abuse its discretion when it refused to set aside
verdict.
Affirmed.
Subjects: Juvenile courts; Tribal courts; Jurisdiction; Omaha Tribe of Nebraska; United States. Indian Child Welfare Act of 1978.
*Synopsis: In juvenile proceedings involving Indian children, father filed motion to transfer case to tribal court. The Separate Juvenile Court, Lancaster County, Reggie L. Ryder, J., denied motion. Father appealed.
*Holding: The Court of Appeals, Moore, J., held that good cause supported denial
of father's motion to transfer to tribal court.
Affirmed.
Subjects: Land -- Leases; Right of property; Askinuk Corporation (formerly the Native Village of Scammon Bay); Lower Yukon School District (Alaska).
*Synopsis: Native village corporation brought action against school district seeking to reform or invalidate a lease of property to school district for one dollar per year. The Superior Court, Third Judicial District, Bethel, Leonard R. Devaney III, J., awarded summary judgment to school district. Corporation appealed.
*Holding: The Supreme Court, Eastaugh, J., held that:
(1) chair of corporation's board of directors had apparent authority to execute
lease;
(2) corporation was statutorily precluded from avoiding lease on the ground that
board did not follow internal requirements for corporate action;
(3) statute barring a corporation from contesting the validity of an instrument
signed by two specified officers did not allow corporation to avoid lease;
(4) lease was supported by consideration;
(5) renegotiation provision was not illusory consideration;
(6) no disparity of bargaining power existed between corporation and school
district; and
(7) fact that chair of corporation's board also sat on board of school district
did not make lease unconscionable.
Affirmed.
Subjects: Parent and child (Law); Parental rights -- Termination; Trials (Custody of children) -- Alaska; United States. Indian Child Welfare Act of 1978.
*Synopsis: Father appealed from decision of the Superior Court, Third Judicial District, Kenai, Anna Moran, J., finding his daughter, an Indian child under the Indian Child Welfare Act (ICWA), to be a child in need of aid and terminating his parental rights.
*Holding: The Supreme Court, Eastaugh, J., held that:
(1) trial court's finding that father abandoned child by failing to provide reasonable support or maintain any meaningful contact with child for over one year was not clearly erroneous;
(2) record contained substantial evidence supporting the superior court's finding that the state made active efforts to prevent the breakup of the Indian family, as required by ICWA; and
(3) evidence supported superior court's finding that returning child to father would likely result in serious emotional harm, pursuant to ICWA and child in need of aid (CINA) rule.
Affirmed.
Subjects: United States. Indian Child Welfare Act of 1978; Child welfare; Jurisdiction; Tribal courts; Leech Lake Band of Chippewa Indians; Sovereign immunity.
*Synopsis: County Human Services filed a petition for child in need of protection or services (CHIPS) regarding Indian children. The District Court, Beltrami County, Paul Benshoof, J., vacated an order transferring child-welfare proceeding from the District Court to the Tribal Court after the District Court determined that the transfer was procured through misrepresentations, and Indian tribe appealed.
*Holding: The Court of Appeals, Kalitowski, J., held that District Court had
jurisdiction to vacate its order, transferring child-welfare proceeding to the jurisdiction of the tribal court, and the District Court did not abuse its discretion in vacating the transfer order on ground of misrepresentation.
Affirmed.
Subjects: Workers' compensation; Employees--Dismissal of; Pojoaque Gaming Inc.; Pueblo of Pojoaque, New Mexico; Sovereign immunity.
*Synopsis: Employer filed claim against tribe casino employer, other tribal entities, and employer's workers' compensation carrier for workers' compensation benefits. The Workers' Compensation Administration awarded benefits. Employee and witness then pursued claims for retaliation against same tribe defendants based on claims that their gaming licenses were revoked, which resulted in their termination from employment, in retaliation. The Workers' Compensation Administration, Gregory Griego, J., 2008 WL 867718, dismissed witness' claims, dismissed claims against tribal entities for lack of subject matter jurisdiction, determined that employer had terminated employee in retaliation for having filed workers' compensation claim, imposed penalty against employer and awarded attorney fees, but denied employee's request for reinstatement. Employee appealed.
*Holding: The Court of Appeals, Vanzi, J., held that:
(1) Court of Appeals would not review claims raised on appeal from order
dismissing witness' claims;
(2) state court's jurisdiction under Indian Gaming Regulatory Act over
negligence suits against tribal defendants did not govern issue whether Workers'
Compensation Administration had jurisdiction to mandate reinstatement of employee
who had been terminated in retaliation for filing workers' compensation claim;
(3) tribe's purchase of workers' compensation insurance for employees, by
itself, did not amount to waiver of sovereign immunity in proceedings before
Workers' Compensation Administration;
(4) casino employer waived defense of sovereign immunity:
(5) employer was required to rehire employee after Workers' Compensation
Administration determined that employee had been terminated in retaliation for
filing workers' compensation claim;
(6) anti-retaliation statute did not authorize Administration to award monetary
damages for lost wages; and
(7) prior decision of Supreme Court that attorney fee cap provision under
Workers' Compensation Act was not unconstitutional was binding on Court of
Appeals.
Affirmed in part; reversed in part.
Subjects: Parent and child (Law); Parental rights -- Termination; Adoption; Trials (Custody of children) -- California; United States. Indian Child Welfare Act of 1978.
*Synopsis: Dependency petition was filed, and Indian Tribe filed notice of intervention. The allegations in the petition were sustained, and matter was transferred. The Superior Court, Sacramento County, No. JD223652, Scott P. Harman, J., ordered a permanent plan of adoption and terminated parental rights, and father appealed.
*Holding: The Court of Appeal, Sims, Acting P.J., held that evidence supported decision to reject Tribe's proposed permanent plan of guardianship and to order permanent plan of adoption and termination of parental rights.
Affirmed.
Subjects: Cigarettes -- Taxation -- New York (State); Sales tax -- Indian Country (U.S.); Cayuga Nation of New York.
*Synopsis: (from the opinion) This appeal presents two primary substantive issues for our consideration. First, we must determine whether Tax Law ? 471-e (as amended by L 2005, ch 61, part K, ? 2; ch 63, part A, ? 4) provides the exclusive means by which to tax cigarette sales on an Indian reservation to non-Indians or to Indians who are not members of that nation or tribe where the reservation is located (hereafter, non-member Indians), or whether Tax Law ? 471 provides an independent basis for imposing a tax on such sales. Second, we must determine whether plaintiff's two convenience stores are located within a ? ?[q]ualified reservation? ? as that term is defined in Tax Law ? 470(16)(a) (as amended by L 2005, ch 61, part K, ? 1). We agree with plaintiff with respect to both issues, i.e., that section 471-e is the exclusive means for taxing such cigarette sales and that plaintiff's two stores are located within a qualified reservation. We therefore conclude that the judgment of Supreme Court ( Cayuga Indian Nation of N.Y. v. Gould, 21 Misc.3d 1142[A], 2008 N.Y. Slip Op 52478[U] ) should be reversed.
*Holding: not yet available
Subjects: Trials (Custody of children); Indian children; Grandparents; Adoption; Parental rights -- Termination.
*Synopsis: Children's maternal grandmother filed application for custody of her Native American grandchildren. The Family Court, St. Lawrence County, Potter, J., dismissed the application, and grandmother appealed.
*Holding: The Supreme Court, Appellate Division, Mercure, J.P., held that grandmother had no special right to custody of her Native American grandchildren that would allow her to override the right of the natural parent to surrender the child to a public agency and to confer on it the right to consent to the adoption of the children nor was she entitled to override a decision by tribal agency to place the children for adoption with adoptive parents to be selected by the agency.
Affirmed.
Subjects: Civil actions arising in Indian Country (U.S.); Civil jurisdiction.
*Synopsis: Service technician brought action against property owner, seeking to recover damages for injuries he sustained when he fell while working on a rooftop heating, ventilation, and air conditioning unit. The Supreme Court, Franklin County, Demarest, J., granted partial summary judgment in favor of technician on the issue of liability. Owner appealed.
*Holding: The Supreme Court, Appellate Division, Kane, J., held that:
(1) technician's Labor Law causes of action were not barred merely because the
accident occurred on an Indian reservation; but
(2) officer of corporate property owner was not an "owner" herself;
(3) technician was engaged in an activity covered by the scaffold law at time of
his accident; and
(4) technician's own actions were not sole proximate cause of his accident.
Affirmed as modified.
Subjects: Tribes -- Officials and employees -- Cases; Libel and slander; Sovereign immunity; Privileges and immunities.
*Synopsis: Alleged shareholders of finance company filed individual actions against tribal treasurer alleging financial newsletters sent by treasurer to tribal members were defamatory. The District Court, Redwood County, Leland Bush, J., denied treasurer's motions for summary judgment. Treasurer appealed, and the appeals were consolidated.
*Holding: The Court of Appeals, Muehlberg, J., held that treasurer was acting within scope of his authority when he sent financial newsletters, and thus tribal sovereign immunity barred the actions.
Reversed.
Subjects: Parental rights -- Termination; Parent and child (Law); Trials (Custody of children) -- South Dakota; United States. Indian Child Welfare Act of 1978; South Dakota. Dept. of Social Services.
*Synopsis: The Department of Social Services (DSS) filed a petition to terminate father's parental rights to his two Indian children. The Circuit Court of the Seventh Judicial Circuit, Pennington County, Janine M. Kern, J., terminated parental rights. Father appealed.
*Holding: The Supreme Court, Severson, J., held that:
(1) evidence was insufficient to support finding that termination of father's parental rights was the least restrictive alternative and that termination was in the best interests of the children, and
(2) order allowing witness to testify as an Indian Child Welfare Act (ICWA) expert was not an abuse of discretion.
Affirmed in part and reversed in part.
Subjects: Workers' compensation; Jurisdiction; Sovereign immunity; Tribal law drafting; Cherokee Nation, Oklahoma; Cherokee Nation Enterprises (Okla.); Hudson Insurance Company.
*Synopsis: Tribal employee commenced proceeding for review an order of the Workers' Compensation Court, Michael J. Harkey, J., which dismissed his claim for compensation based on lack of jurisdiction.
*Holding: The Court of Civil Appeals, Kenneth L. Buettner, J., held that tribal
employer had not waived its sovereign immunity for workers' compensation matters.
Affirmed.
Subjects: Trials (Custody of children) -- Rhode Island; Parent and child (Law); Abused Indian children; United States. Indian Child Welfare Act of 1978; Rhode Island. Dept. of Children, Youth & Families.
*Synopsis: The Department of Children, Youth and Families (DCYF) brought action against both parents of an infant, citing allegations of dependency and neglect. The Family Court decree found child to be dependent, and committed her to the care, custody, and control of the DCYF, with discretion as to placement. Father appealed.
*Holding: The Supreme Court, Suttell, J., held that error was not harmless in failing to adhere to mandatory expert testimony requirements of ICWA.
Vacated and remanded for new trial.
Subjects: Torts; Negligence; Damages; Choctaw Casino of Pocola; Sovereign immunity -- Indian business enterprises.
*Synopsis: Casino patron who was struck and injured by a shuttle cart while walking through a casino's parking lot brought negligence action against Native American tribe and its casino to recover damages. The District Court dismissed action on basis of tribal sovereign immunity. The Court of Civil Appeals reversed and remanded. Casino petitioned for certiorari review.
*Holding: The Supreme Court held that:
(1) tribe and its casino clearly and unequivocally consented to be sued for tort
damages by patron as to preclude application of tribal immunity doctrine, and
(2) District Court was a court of competent jurisdiction as the phrase was used
in statutory Model Tribal Gaming Compact such that it could exercise jurisdiction
over patron's tort claims.Opinion of the Court of Civil Appeals vacated; dismissal order of the District Court reversed; cause remanded to District Court for further proceedings. Kauger, J., issued opinion concurring in part and dissenting in part. Reif, J., issued dissenting opinion in which Edmondson, C.J., joined.
Subjects: Torts; Negligence; Damages; Choctaw Casino of Pocola; Sovereign immunity -- Indian business enterprises.
*Synopsis: Casino patron who was struck and injured by a shuttle cart while walking through a casino's parking lot brought negligence action against Native American tribe and its casino to recover damages. The District Court dismissed action on basis of tribal sovereign immunity. The Court of Civil Appeals reversed and remanded. Casino petitioned for certiorari review.
*Holding: The Supreme Court held that:
(1) tribe and its casino clearly and unequivocally consented to be sued for tort damages by patron as to preclude application of tribal immunity doctrine, and
(2) District Court was a court of competent jurisdiction as the phrase was used in statutory Model Tribal Gaming Compact such that it could exercise jurisdiction over patron's tort claims. Opinion of the Court of Civil Appeals vacated; dismissal order of the District Court reversed; cause remanded to District Court for further proceedings.
Subjects: Parental rights -- Termination; Trials (Custody of children) -- Wisconsin; Parent and child (Law); United States. Indian Child Welfare Act of 1978.
*Synopsis: County filed petition for involuntary termination of father's parental rights to Indian child. After jury answered special verdict questions and a dispositional hearing was held, The Circuit Court, Monroe County, Michael J. Rosborough, J., ordered termination of rights. Father appealed.
*Holding: The Court of Appeals, Vergeront, J. held that:
(1) provision of Indian Child Welfare Act (ICWA), requiring proof beyond a
reasonable doubt that "continued custody" by parent is likely to result in serious
damage to child, applies to all termination of parental rights cases involving an
Indian child, even if child is not in physical custody of parent when petition is
filed;
(2) social worker who testified for county was not "qualified expert witness"
under ICWA;
(3) ICWA did not impose particular burden of proof as to active efforts to
provide remedial services and rehabilitative programs designed to prevent breakup
of Indian family, and clear and convincing evidence was applicable burden of proof
on that issue.
Reversed and remanded.
Subjects: Trials (Custody of children) -- Nebraska; Ponca Tribe of Nebraska; United States. Indian Child Welfare Act of 1978.
*Synopsis:Department of Health and Human Services filed petitions alleging that two Indian children were children in need of assistance. Indian tribe moved to intervene. The County Court, Dakota County, Kurt Rager, J., denied the motion to intervene because an attorney had not signed the motion. Tribe appealed.
*Holding: The Supreme Court, Connolly, J., held that requirement that an Indian tribe be represented by a Nebraska licensed attorney in accord with state statute governing unauthorized practice of law is preempted in context of state court child custody proceedings under the federal and state Indian Child Welfare Act. Reversed and remanded.
Subjects: not yet available
*Synopsis: Parents of casino employee brought wrongful death and loss of consortium action against Indian casino, gift shop supervisor, and casino's insurer arising out of the death of employee in a motor vehicle accident on his way home from work at casino gift shop. The District Court, Bernalillo County, Theodore Baca, D.J., dismissed and granted summary judgment in favor of casino, insurer, and supervisor, and parents appealed.
*Holding: The Court of Appeals, Michael D. Bustamante, J., held that:
(1) casino, insurer, and supervisor were judicially estopped from taking a
position that parents' claims were precluded under exclusivity provision of
Workers' Compensation Act;
(2) whether employee was visitor under sovereign immunity waiver provisions of
Gaming Compact was sufficiently pleaded and not subject to dismissal on motion for
judgment on the pleadings; and
(3) parents' loss of consortium claims could not be brought under sovereign
immunity waiver provision of Gaming Compact.
Affirmed in part, reversed in part, and remanded.
Subjects: Parent and child (Law); Parental rights -- Termination; Trials (Custody of children) -- California; United States. Indian Child Welfare Act of 1978.
*Synopsis: In a child dependency proceeding, the Superior Court, Placer County, Nos. 53000837, 53000838, and 530001831, John Ross, Commissioner, terminated mother's parental rights to two children, and set adoption as permanent placement goal for one of them. Mother and father appealed.
*Holding: The Court of Appeal, Sims, Acting P.J., held that notice that mother was a member of a tribe that was not federally recognized did not give rise to Indian Child Welfare Act (ICWA) notice obligation.
Affirmed.
Subjects: Trials (Custody of children) -- Nevada; Indian children; Parental rights -- Termination; Cherokee Nation, Oklahoma; Jurisdiction.
*Synopsis: (from the opinion) This appeal concerns appellant Cherokee Nation's assertion that the district court lacked subject matter jurisdiction to adjudicate a child custody proceeding involving an Indian child. Specifically, this case arises from a district court order denying Cherokee Nation's motion to invalidate and dismiss the termination of parental rights proceedings.
*Holding: not yet available
Subjects: Casinos -- Oregon; Indian gaming; Intergovernmental agreements.
*Synopsis: Residents near site of proposed casino brought action as relators for a writ of mandamus, challenging the Governor's authority to enter into a gaming compact with tribes, under which they would be permitted to open a casino. The Circuit Court, Lane County, dismissed the petition, and residents appealed. The Court of Appeals, 187 P.3d 220, reversed and remanded, and the State appealed.
*Holding: The Supreme Court, De Muniz, C.J., held that:
(1) mandamus proceedings are not governed by Rule of Civil Procedure on joinder
of necessary parties;
(2) residents were not required to join Indian tribes in action for writ of
mandamus challenging Governor's authority; and
(3) availability of a declaratory judgment action did not preclude action for
mandamus by residents.
Affirmed.
Subjects: Casinos -- Oregon; Indian gaming; Intergovernmental agreements.
*Synopsis: Residents near site of proposed casino brought action as relators for a writ of mandamus, challenging the Governor's authority to enter into a gaming compact with tribes, under which they would be permitted to open a casino. The Circuit Court, Lane County, dismissed the petition, and residents appealed. The Court of Appeals reversed and remanded, and the State appealed.
*Holding: The Supreme Court, De Muniz, C. J., held that:
(1) mandamus proceedings are not governed by Rule of Civil Procedure on joinder
of necessary parties;
(2) residents were not required to join Indian tribes in action for writ of
mandamus challenging Governor's authority; and
(3) availability of a declaratory judgment action did not preclude action for
mandamus by residents.
Affirmed.
Subjects: Child abuse; Abused Indian children; Foster care placement; United States. Indian Child Welfare Act of 1978.
*Synopsis: Mother appealed from decision of the District Court, McKinley County, Louis E. DePauli, Jr., D.J., adjudicating child neglected.
*Holding: The Court of Appeals, Castillo, J., held that:
(1) failure of mother to expressly raise violations of Indian Child Welfare Act
(ICWA) at the adjudicatory hearing did not prevent appellate court from reviewing
the record to determine if the district court fulfilled its obligation to abide by
the requirements of ICWA;
(2) where Children, Youth, and Families Department was never required to prove
its case under ICWA because mother initially consented to foster care placement,
the Department had to establish the serious danger requirement, pursuant to ICWA,
before Department could continue to keep child in a contested foster care
placement; and
(3) trial court's adjudication of neglect as to Indian mother was not based on
sufficient evidence.
Reversed and remanded.
Subjects: Parent and child (Law); Parental rights -- Termination; Trials (Custody of children) -- Montana; United States. Indian Child Welfare Act of 1978.
*Synopsis: Mother appealed from decision terminating parental rights, and the Supreme Court remanded proceeding for compliance with tribal notice and filing requirements of Indian Child Welfare Act (ICWA). Following hearing on remand, the District Court, First Judicial District, Lewis and Clark County, Thomas C. Honzel, P.J., entered order terminating parental rights. Mother appealed.
*Holding: The Supreme Court, Mike McGrath, C.J., held that:
(1) district court did not improperly rely on record of proceedings that
occurred prior to appeal; and
(2) there was sufficient evidence to support findings beyond a reasonable doubt
that children were in need of care and that mother's parental rights should be
terminated.
Affirmed.
Subjects: Cigarettes -- Taxation -- Wisconsin; Cigarettes -- Sales -- On trust lands; Ho-Chunk Nation of Wisconsin; Wisconsin. Dept. of Revenue.
*Synopsis: Native American tribe appealed from decision of Tax Appeals Commission affirming Department of Revenue's denial of tribe's claim for partial refund of cigarette taxes in respect to sales on reservations or trust lands. The Circuit Court, Dane County, Sarah B. O'Brien, J., affirmed. Tribe appealed. The Court of Appeals, 312 Wis.2d 484, 754 N.W.2d 186, 2008 WI App 95, affirmed. Tribe petitioned for review.
*Holding: The Supreme Court, N. Patrick Crooks, J., held that:
(1) the phrase ?was designated a reservation or trust land,? in statute authorizing refunds for cigarette taxes provided the tax was collected on sales made on land that was designated a reservation or trust land on or before January 1, 1983, refers to the applicable formal process that must occur in order for land to be a reservation or trust land, and
(2) land not formally accepted by the United States government until January 31, 1983, was not designated a reservation or trust land on or before January 1, 1983, and thus tribe was not entitled to refund.
Decision of Court of Appeals affirmed.
Related News Stories: Court nixes Ho-Chunk's bid for cigarette tax refund (Madison Wisconsin Capital Times) 6/16/09
Subjects: Parent and child (Law); Parental rights -- Termination; Trials (Custody of children) -- Maine; United States. Indian Child Welfare Act of 1978.
*Synopsis: The Department of Health and Human Services filed a petition to terminate father's parental rights. The District Court, Lewiston County, Beliveau, J., terminated parental rights. Father appealed.
*Holding: The Supreme Judicial Court, Alexander, J., held that:
(1) the Department and the court adequately complied with their obligation to determine whether the Indian Child Welfare Act (ICWA) applied to termination of parental rights proceeding, and
(2) denial of father's motion for a continuance was not an abuse of discretion.
Affirmed.
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, Los Angeles County, No. CK32389, Randolph Hammock, Referee, terminated parental rights. Parents appealed, and the Court of Appeal issued a stipulated order reversing for purposes of perfecting Indian Child Welfare Act (ICWA) notice. The Superior Court reinstated its prior order terminating parental rights. Parents appealed.
*Holding: The Court of Appeal, Epstein, P.J., held that:
(1) any error was harmless in the failure to file ICWA notice responses from
three tribes or return receipts, and
(2) counsel for parents bear a responsibility to object in the juvenile court to
deficiency in ICWA notice.
Affirmed.
Subjects: Sovereign immunity -- Meherrin Indian Tribe.
*Synopsis: Indian tribe and alleged tribal office holders brought action against purported former office holders to quiet title, and seeking declaratory and injunctive relief. The Superior Court, Hertford County, Cy A. Grant, Sr., denied defendants' pre-answer motion to dismiss for lack of subject matter and personal jurisdiction, and for failure to state claim, and certified its order for immediate appeal. Defendants appealed, and plaintiffs moved to dismiss appeal as interlocutory and premature.
*Holding: The Court of Appeals, Robert N. Hunter, Jr., J., held that:
(1) trial court's certification had no effect;
(2) defendants could appeal denial of motion to dismiss for lack of personal
jurisdiction;
(3) motion to dismiss for lack of subject matter jurisdiction was not
immediately appealable;
(4) motion to dismiss for failure to state claim was immediately appealable; and
(5) defendants were not entitled to sovereign immunity.
Affirmed in part, dismissed in part.
Subjects: Quiet title actions; Adverse possession; Sovereign immunity -- Stillaguamish Tribe of Washington.
*Synopsis: Putative landowners brought action against current landowners and Stillaguamish Tribe, seeking to quiet title to property allegedly obtained through adverse possession. The Superior Court, Snohomish County, Michael T. Downes, J., denied tribe's motion to dismiss. Tribe appealed.
*Holding: The Court of Appeals, Agid, J., held that superior court's continuing jurisdiction over land for purposes of determining ownership did not offend tribal sovereignty.
Affirmed.
Related News Stories: Washington Court of Appeals limits tribal sovereign immunity in land cases (Northwest Indian Law & Business Advisor) 6/3/09.
Subjects: Juvenile delinquency; Guardian and ward; Kinship care; Foster care placement; United States. Indian Child Welfare Act of 1978.
*Synopsis: County Department of Health and Human Services filed juvenile dependency petition. The Superior Court, Sacramento County, No. JD222277, Marlene E. Hertoghe, Juvenile Court Referee, set a permanent plan of legal guardianship and appoint nonrelative, rather than paternal grandmother, as minor's legal guardian. Father appealed.
*Holding: The Court of Appeal, Raye, J., held that:
(1) evidence was sufficient to support finding of good cause under the Indian
Child Welfare Act (ICWA) to place minor with nonrelative rather than with paternal
grandmother, and
(2) statute allowing placement with a "fit and willing relative" identified by
tribe did not apply to change the "good cause" standard.
Affirmed.
Subjects: Tobacco -- Sales -- North Carolina; Sovereign immunity -- Indian business enterprises; Seneca-Cayuga Tobacco Company.
*Synopsis: State brought action against tribal tobacco companies, seeking preliminary and permanent injunctions requiring them to pay into escrow fund and file a certificate of compliance, and seeking an order prohibiting them from selling or delivering tobacco products in North Carolina for two years. Companies filed motion to dismiss. The Superior Court, Wake County, Orlando F. Hudson, Jr., J., granted the motion to dismiss, and state appealed.
*Holding: The Court of Appeals, Ervin, J., held that:
(1) companies had not waived their sovereign immunity, and thus court lacked jurisdiction over them, and
(2) state failed to present any evidence showing that tribal tobacco companies waived tribal sovereign immunity as required to survive summary judgment.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- North Dakota; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Notice (Law); Family reunification; Foster care placement.
*Synopsis: The Superior Court, Riverside County, No. RIJ102213, Bradley O. Snell, Temporary Judge, terminated parents' rights to three children. Parents appealed, and the Court of Appeal reversed and remanded for compliance with Indian Child Welfare Act (ICWA), 2006 WL 3516166. On remand, the Superior Court refused to vacate order placing children in foster care, terminated parental rights, and adopted permanent plan of adoption by children's current caretakers. Parents appealed.
*Holding: The Court of Appeal, McKinster, J., held that:
(1) failure to comply with ICWA notice provisions does not divest courts of jurisdiction to remove Indian child from parental custody;
(2) dependency court had jurisdiction to entertain parents' request to invalidate order placing children in foster care after remand for ICWA compliance;
(3) no ?active efforts? to prevent breakup of Indian family were required before children were placed in foster care;
(4) county department of public social services made active efforts to prevent breakup of family before termination of parental rights;
(5) any error was harmless in noncompliance with requirement that such ?active efforts? take into account tribe's values and use tribe's resources;
(6) any requirement of ?active efforts? to place Indian children with extended family members for adoption was satisfied; and
(7) the children were likely to be adopted within reasonable time.
Affirmed.
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: The Superior Court, Riverside County, No. RIJ102216, Bradley O. Snell, Temporary Judge, terminated parents' rights to three children. Parents appealed, and the Court of Appeal reversed and remanded for compliance with Indian Child Welfare Act (ICWA). On remand, the Superior Court refused to vacate order placing children in foster care, terminated parental rights, and adopted permanent plan of adoption by children's current caretakers. Parents appealed.
*Holding: The Court of Appeal, McKinster, J., held that:
(1) failure to comply with ICWA notice provisions does not divest courts of
jurisdiction to remove Indian child from parental custody;
(2) dependency court had jurisdiction to entertain parents' request to
invalidate order placing children in foster care after remand for ICWA compliance;
(3) no "active efforts" to prevent breakup of Indian family were required before
children were placed in foster care;
(4) county department of public social services made active efforts to prevent
breakup of family before termination of parental rights;
(5) any error was harmless in noncompliance with requirement that such "active
efforts" take into account tribe's values and use tribe's resources;
(6) any requirement of "active efforts" to place Indian children with extended
family members for adoption was satisfied; and
(7) the children were likely to be adopted within reasonable time.
Affirmed.
Subjects: not yet available
*Synopsis: (from the opinion) Mother appeals from an adjudication of neglect. Mother is a member of the Navajo Nation, and the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. ?? 1901-1963 (2006), applies to Child. Although the parties to this case agree that ICWA does apply, they disagree about its specific application to issues of preservation and evidentiary requirements. We hold that under the circumstances of this case, ICWA permits Mother to challenge on appeal the sufficiency of the evidence presented at the adjudicatory hearing, and we further hold that the Children, Youth, and Families Department (Department) did not provide sufficient evidence to satisfy the requirements of ICWA. Accordingly, we reverse the adjudication of neglect and remand for further proceedings.
*Holding: not yet available
Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Family reunification.
*Synopsis: The Office of Children's Services (OCS) petitioned to terminate father's parental rights to Indian child. The Superior Court, Third Judicial District, Anchorage, Craig F. Stowers, J., terminated parental rights. Father appealed.
*Holding: The Supreme Court, Carpeneti, J., held that clear and convincing evidence established that the OCS made the statutorily required active efforts to reunify father with child, in termination of parental rights case.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Kansas; Child welfare; United States. Indian Child Welfare Act of 1978; Child in need of aid; Law -- Kansas -- Application.
*Synopsis: State filed a child in need of care (CINC) petition and sought custody of child. The child, who was discovered to have Native American heritage, was adjudicated a CINC, and state filed subsequent motion to terminate mother's parental rights. Mother's motion to transfer jurisdiction to tribal court was denied. The District Court, Johnson County, Kathleen Sloan, J., entered order terminating parental rights. Mother appealed.
*Holding: The Court of Appeals, Rulon, C.J., held that:
(1) evidence was sufficient to support the District Court's finding that there
was "good cause" not to transfer jurisdiction to the tribe, but
(2) the District Court's failure to comply with substantive Indian Child Welfare
Act requirements required reversal.
Reversed and remanded with directions.
Subjects: Parent and child (Law); Trials (Custody of children) -- Colorado; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Notice (Law).
*Synopsis: Mother appealed order of the Juvenile Court, City and County of Denver, Karen M. Ashby, J., terminating her parent-child legal relationship with her daughter.
*Holding: The Court of Appeals, Roman, J., held that:
(1) Department of Human Services' failure to file notices that Indian child was
involved in removal from his family or return receipt cards with court was not
harmless error, and
(2) Department of Human Services' notices of dispositional, parental rights
termination, and amended termination hearings did not comply with Indian Child
Welfare Act (ICWA).
Vacated and remanded.
Subjects: Parent and child (Law); Trials (Custody of children) -- Oregon; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Family reunification.
*Synopsis: The Department of Human Services (DHS) petitioned to terminate mother and father's parental rights to Indian children. The Circuit Court, Douglas County, Ronald Poole, J., terminated parental rights. Father appealed.
*Holding: The Court of Appeals, Landau, P.J., held that:
(1) evidence supported finding that father was unfit to parent children;
(2) evidence supported finding that father's continued custody of children was
likely to result in serious emotional or physical damage to the children; and
(3) DHS made active efforts to reunite father with children after he moved to
city one hour away from children.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Desertion and non-support.
*Synopsis: (from the opinion) April argues the State failed to prove the grounds for termination by clear and convincing evidence. Under section 232.116(1)(b), parental rights may be terminated if the court finds by clear and convincing evidence that the child has been abandoned or deserted. April contends the evidence does not show that she had given up on parenting A.L.S. or that she had any intention of doing so. She claims there was merely a problem in making contact because of missed telephone calls.
*Holding: not yet available
Subjects: Criminal actions arising on Indian reservations; Indian Country (U.S.) -- Defined; Jurisdiction -- Oklahoma; Trials (Murder).
*Synopsis:Defendant pled guilty in the District Court, Seminole County, George Butner, J., to three counts of first degree murder and one count of shooting with intent to kill. Defendant was sentenced to death on each of the murder counts and to a term of life imprisonment on the remaining count.
*Holding: Upon mandatory sentence review, the Court of Criminal Appeals, A. Johnson, V.P.J., held that:
(1) Indian landowner's 1970 conveyance of the surface rights in property to the Housing Authority of the Seminole Nation extinguished all Indian lands restrictions that attached to surface estate of the property;
(2) assuming that 4/5ths of Indian landowner's mineral interests in property remained restricted, this factional interest in the mineral estate was insufficient to deprive the State of criminal jurisdiction over the surface of the property; and
(3) evidence was sufficient to support trial court's "aggravating circumstance" findings.
Affirmed.
Subjects: not yet available
*Synopsis: Father appealed from decision of the Superior Court, Third Judicial
District, Anchorage, Peter A. Michalski, J., terminating his parental rights.
*Holding: The Supreme Court, Carpeneti, J., held that:
(1) there was substantial evidence to support the trial court's finding, in
termination of parental rights proceeding under the Indian Child Welfare Act
(ICWA), that returning child to father's custody would be likely to result in
serious emotional and/or physical damage to the child; and
(2) Office of Children's Services (OCS) made active and reasonable efforts to
provide remedial services to father.
Affirmed.
Subjects: Negligence; Jurisdiction -- Montana; Jurisdiction -- Confederated Salish & Kootenai Tribes of the Flathead Reservation, Montana; Traffic accidents -- On Indian reservations -- Confederated Salish & Kootenai Tribes of the Flathead Reservation, Montana; Confederated Salish & Kootenai Tribes of the Flathead Reservation, Montana -- Members; Non-members of a tribe; Personal injuries -- Cases.
*Synopsis: Plaintiff motorist, who previously had filed negligence complaint in the Tribal Court, brought action against defendant motorist and insurer in the District Court, alleging that defendant motorist's negligence caused automobile accident. The District Court, 20th Judicial District, Lake County, C.B. McNeil and Deborah Kim Christopher, P.JJ., dismissed the complaint, and plaintiff motorist appealed.
*Holding: The Supreme Court, Jim Rice, J., held that:
(1) District Court should have considered information outside the pleadings, and
(2) equitable tolling applied to plaintiff motorist's District Court action.
Reversed and remanded.
Subjects:
*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.
Subjects: Electric power plants -- On Indian reservations; Real property tax; Arizona. Dept. of Revenue; Calpine Finance Construction Company.
*Synopsis: Taxpayer, which leased from Indian tribe land located on Indian reservation to construct and operate electric power generating plant with related improvements, filed suit against Department of Revenue (DOR) and county to seeking refund of property taxes assessed on improvements and personal property. Parties filed cross-motions for summary judgment. The Arizona Tax Court, Cause No. TX 2004-000696, Thomas Dunevant, III, J., granted summary judgment to defendants. Taxpayer appealed.
*Holding:The Court of Appeals, Irvine, J., held that:
(1) taxpayer, rather than tribe, owned improvements, and, thus, state could
impose property tax on taxpayer as owner of improvements, and
(2) exception to general rule that memorandum decisions shall not be regarded as
precedent or cited in any court that exists when collateral estoppel applies did
not apply to permit taxpayer's citation to two unpublished memorandum decisions.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Notice (Law).
*Synopsis: In a child dependency proceeding, the Superior Court, Sacramento County, No. JD226618, Peter S. Helfer, Juvenile Court Referee, removed child from mother's custody and denied her reunification services. Mother appealed.
*Holding: The Court of Appeal, Scotland, P.J., held that:
(1) bare suggestion that a child might be an Indian child is insufficient to
trigger Indian Child Welfare Act (ICWA) notice requirements, and
(2) father's assertion that there was a possibility his great-grandfather "was
Indian," was insufficient to trigger ICWA notice requirements.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Notice (Law).
*Synopsis: After termination of reunification services in a child dependency proceeding, the Superior Court, Mono County, No. 3SCJ1358, Stan Eller, J., ordered psychological evaluation of child, modified its order to delete the order for psychological evaluation, and continued the child in foster care. Father appealed.
*Holding: The Court of Appeal, Robie, J., held that:
(1) father lacked standing to assert on appeal that juvenile court abused its
discretion in rescinding order for psychological evaluation, and
(2) Indian Child Welfare Act (ICWA) issue was not cognizable on appeal from
psychological evaluation order.
Dismissed.
Subjects: not yet available
*Synopsis: Mother appealed judgments of the Juvenile Court, City and County of Denver, Donna J. Schmalberger, J., terminating the parent-child relationship between her and her two sons.
*Holding: The Court of Appeals, Roman, J., held that:
(1) city department of human services' failure to notify tribes that
parent-child termination proceeding potentially involved Indian children violated
Indian Child Welfare Act (ICWA) notice requirement, and
(2) mother waived her right to raise issue of lack of reasonable effort on part
of department to rehabilitate and reunite family.
Vacated and remanded.
Subjects:
*Synopsis: After mother and father's parental rights were terminated to their three children, foster parents, who were granted permission to intervene, filed a motion for an order restraining the Department of Public Health and Human Services (DPHHS) from removing children from their care for out of state adoption placement. The District Court of the Second Judicial District, Silver Bow County, Nos. DN-2006-041, DN-2006-042, and DN-2007-031, Brad Newman, P.J., denied the motion, denied foster parents' motion for a new trial, and denied their motion to stay the adoptive placement of the children. Foster parents appealed.
*Holding: The Supreme Court, James C. Nelson, J., held that trial court determination that good cause did not exist to deviate from the placement preferences in the Indian Child Welfare Act (ICWA), and its approval of childrens' placement with prospective adoptive parents, was not an abuse of discretion. Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Kansas; Child welfare; United States. Indian Child Welfare Act of 1978; Existing Indian family exception.
*Synopsis: Unwed, non-Indian mother sought to terminate the parental rights of child's father, who was Indian, and consented to the adoption of child by members of mother's family. The District Court, Sedgwick County, Richard T. Ballinger, J., rejected father's request to transfer the matter to tribal court pursuant to the federal Indian Child Welfare Act, and rejected tribe's attempt to intervene. Father and tribe appealed.
*Holding: The Supreme Court, Beier, J., held that:
(1) Indian Child Welfare Act applied to proceedings;
(2) existing Indian family doctrine was abandoned, overruling In re Adoption of
Baby Boy L., 231 Kan. 199, 643 P.2d 168; and
(3) tribe was permitted to intervene.
Reversed and remanded.
Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Child welfare; United States. Indian Child Welfare Act of 1978; Foster care placement.
*Synopsis: This appeal arises from the superior court's decision to allow a mother to revoke the Indian custodian status for her child's father, whose own parental rights to the child had already been terminated. The father's status as the child's Indian custodian under the Indian Child Welfare Act was based solely on the mother's temporary transfer of physical care and custody of the child to the father after termination of his parental rights. After the Office of Children's Services (OCS) removed the child from the father and became the child's temporary legal custodian, the mother joined in OCS's motion to terminate the father's status as the child's Indian custodian.
*Holding: The Supreme Court, Fabe, C.J., held that mother possessed the authority to revoke the transfer at any time before OCS took custody of child, and because mother and OCS acted jointly to rescind the earlier transfer, the condition under which father met Indian Child Welfare Act's (ICWA) definition of Indian custodian no longer existed.
Affirmed.
Subjects: Drunk driving; United States. Bureau of Indian Affairs -- Police; Traffic violations -- On Indian reservations -- Wind River Indian Reservation (Wyo.); Jurisdiction -- Wyoming.
*Synopsis: Defendant sought review of judgment of the District Court, Fremont County, Norman E. Young, J., affirming administrative suspension of his driver's license for having refused to submit to chemical testing of his blood alcohol content after a traffic stop.
*Holding: The Supreme Court, Voigt, C.J., held that defendant's detention by Bureau of Indian Affairs (BIA) officer did not render his subsequent arrest by deputy sheriff unlawful.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Texas; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.
*Synopsis: Termination of parental rights proceeding was brought. The 323rd District Court, Tarrant County, Lucy Jean H. Boyd, J., terminated mother's and father's parental rights. Mother and father appealed.
*Holding: The Court of Appeals, Sue Walker, J., held that:
(1) specific statutory notices of parental rights termination proceeding
containing specific statutorily defined information were required to be sent to
specific individuals;
(2) statutory notices of parental rights termination proceeding were deficient;
and
(3) evidence was sufficient to support finding that termination of father's
parental rights was in best interest of children.
Affirmed in part and remanded.
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: (from the opinion) C.M. appeals an order of the juvenile court terminating parental rights and finding her child adoptable. (Welf. & Inst.Code, ? 366.26.) She contends the juvenile court erred in giving the notices required by the Indian Child Welfare Act (ICWA) ( 25 U.S.C. ? 1901 et seq.). We affirm.
*Holding: not yet available
Subjects: Parent and child (Law); Trials (Custody of children) -- Nebraska; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: State filed petition for temporary custody of children. The Juvenile Court, Lancaster County, Linda S. Porter, J., adjudicated the children as juveniles and placed them in foster care, and father appealed.
*Holding: The Court of Appeals, Moore, J., held that:
(1) father's motion to dismiss state's temporary custody petition due to lack of
Indian Child Welfare Act (ICWA) allegations could be made during the course of
closing arguments;
(2) state was required to allege facts with regard to ICWA requirements; and
(3) evidence was insufficient to establish that Department of Health and Human
Services case worker was sufficiently qualified to testify as expert witness.
Reversed and remanded.
Subjects: Parent and child (Law); Trials (Custody of children) -- Washington (State); Child welfare; United States. Indian Child Welfare Act of 1978; Foster home care; Notice (Law); Grandparents.
*Synopsis: Grandparents filed petition for nonparental custody of Indian child. The Superior Court, King County, Philip Hubbard, J., awarded custody of child to grandparents. Father appealed. The Court of Appeals, 119 Wash.App. 415, 81 P.3d 154, reversed and remanded. After remand, Indian tribe in which child was enrolled petitioned to intervene. After a bench trial, the Superior Court, King County, James A. Doerty, J., awarded custody to father, and grandparents appealed.
*Holding: The Court of Appeals, Dwyer, A.C.J., held that:
(1) petition for nonparental custody was an action for foster care placement
under Indian Child Welfare Act (ICWA);
(2) tribe did not receive proper notice under ICWA, and thus order granting
custody to father was invalid;
(3) grandfather, as child's Indian custodian, did not possess the same right to
custody as father; and
(4) grandparents were required to prove entitlement to custody by clear and
convincing evidence.
Reversed and remanded.
Subjects: United States. Public Law 280; Firearms -- Law and legislation; Jurisdiction -- Minnesota; Criminal actions arising on Indian reservations -- Fond du Lac Band of Chippewa Indians.
*Synopsis: Defendant was convicted in the District Court, Beltrami County, Shari R. Schluchter, J., of being a felon in possession of a firearm. Defendant appealed.
*Holding: The Court of Appeals, Hudson, J., held that state had jurisdiction to prosecute defendant, a tribal member, for a violation on a reservation of the felon-in-possession statute.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Evidence, Expert; Evidence (Law).
*Synopsis: Father appealed from decision of the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, J., terminating his parental rights.
*Holding: The Supreme Court held that:
(1) Superior Court did not err by finding that, despite her strengths, child had
special needs that required particularized attention; and
(2) Superior Court's finding under Indian Child Welfare Act (ICWA) as to
likelihood of serious future damage if child was returned to father's care was not
clearly erroneous.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Arizona; Child welfare; United States. Indian Child Welfare Act of 1978; Adoption.
*Synopsis: Putative father, who was an Indian, appealed from decision of the Superior Court, Maricopa County, Cause No. JA 508264, Peter Thompson and Brian S. Rees, Commissioners, finding that father could not impede the adoption and that Indian Child Welfare Act (ICWA) was inapplicable.
*Holding: The Court of Appeals, Portley, P.J., held that:
(1) putative father acknowledged paternity, and because putative father
acknowledged paternity and was a member of the Cherokee Nation, child was an
Indian child within meaning of ICWA; and
(2) trial court order which found that putative father had not established
paternity and, as a result, lost his right to participate in the adoption was not
a final order for purposes of appeal.
Vacated and remanded.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Family reunification; Notice (Law).
*Synopsis: County department of health and human services filed dependency petition. The Superior Court, Humboldt County, No. JV080229, Christopher G. Wilson, denied reunification services to father, set case for permanency planning hearing, and determined that Indian Child Welfare Act (ICWA) did not apply. Father petitioned for writ of mandate.
*Holding: The Court of Appeal, Needham, J., held that:
(1) father's resistance to drug treatment ordered as parole condition supported denial of reunification services, but
(2) additional information provided by father at dispositional hearing required new ICWA notice. Petition granted in part.
Subjects: Parent and child (Law); Trials (Custody of children) -- Arizona; Jurisdiction -- Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; Jurisdiction --San Carlos Apache Tribe of the San Carlos Reservation, Arizona.
*Synopsis: Father appealed from order of the Superior Court, Gila County, No. DO 2007-399, Peter J. DeNinno, Judge Pro Tempore, granting sole legal and physical custody of minor child to mother.
*Holding: The Court of Appeals, VAsquez, J., held that:
(1) trial court properly exercised jurisdiction under Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), and
(2) mother was entitled to an award of reasonable attorney fees.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Heritage; Notice (Law).
*Synopsis: The Juvenile Court, Sacramento County, No. JD225578, Dean Petersen, J., terminated mother's parental rights to child. Mother appealed.
*Holding: The Court of Appeal, Scotland, P.J., held that:
(1) an alleged father's claim of Indian heritage does not trigger the requirement of Indian Child Welfare Act (ICWA) notice until biological parentage is established, and
(2) no ICWA notice was required based on heritage of alleged father who
was excluded as biological father through genetic testing.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Washington (State); Child welfare; United States. Indian Child Welfare Act of 1978; Foster home care.
*Synopsis: After child born prematurely and suffering drug withdrawals was placed in state care, and mother initially agreed to a dependency order so that child could be placed with her while she underwent drug treatment, child's health prevented such placement and mother moved to revoke the dependency order. The Superior Court, Clallam County, William Knebes, J., denied mother's motion. Mother appealed.
*Holding: The Court of Appeals, Penoyar, J., held that:
(1) Indian Child Welfare Act provision pertaining to voluntary placement of child in foster care did not apply to mother's attempt to revoke dependency order agreed to;
(2) absence of an individual service and safety plan (ISSP) did not prejudice mother so as to warrant revocation of the order;
(3) absent prejudice, lack of court colloquy with mother as to her understanding of the order did not require revocation of the order; and
(4) there was no basis by which to grant mother's motion for relief from judgment.
Affirmed.
Subjects: Electronic commerce -- Licenses; Tobacco -- Sales -- Taxation; Taxation -- Law and legislation -- Maine -- Application -- Indian Country (U.S.); Interstate commerce; Indian business enterprises -- New York (State); Tribal members -- Seneca Nation of New York.
*Synopsis: Online tobacco product retailer sought review of order of the Superior Court, Kennebec County, Marden, J., imposing upon retailer penalties and fine in amount of $33,500 for distributing tobacco products without a license.
*Holding: The Supreme Judicial Court, Silver, J., held that Department of Health and Human Services had authority to enforce state tobacco vendor licensing requirement against out-of-state retailer who resided within Indian reservation.
Affirmed.
Subjects: Prisoners -- Idaho; Habeas corpus; Freedom of religion -- United States; Sweat lodges; Religious articles; United States. Constitution. 14th Amendment; United States. Constitution. 1st Amendment; United States. Religious Land Use and Institutionalized Persons Act of 2000; Idaho. Free Exercise of Religion Protected Act.
*Synopsis: Inmate who was in maximum security state prison petitioned for writ habeas corpus, alleging violation of his rights to practice his Native American religion under the State and Federal Constitutions, the Religious Exercises in Land Use and by Institutionalized Persons Act (RLUIPA), and the Free Exercise of Religion Protected Act (FERPA). After the dismissal of his petition was reversed, 143 Idaho 782, 152 P.3d 653, the District Court, Fourth Judicial District, Ada County, Daniel C. Hurlbutt, J., denied petition. Inmate appealed.
*Holding: The Court of Appeals, Gutierrez, J., held that:
(1) safety concerns were compelling state interest under RLUIPA in disallowing
use of a sweat lodge for religious practice;
(2) prison had compelling state interest under RLUIPA in disallowing smudging;
(3) prison had compelling state interest under RLUIPA in restricting inmates'
possession of personal property;
(4) prison's policy of restricting use of sweat lodges was the least restrictive
means of serving compelling state interest under RLUIPA;
(5) prison's complete ban on smudging ceremonies was not the least restrictive
means of furthering prison's compelling state interest under RLUIPA; and
(6) prison's policy of restricting inmates' personal property was least
restrictive means to serve compelling state interest under RLUIPA.
Affirmed in part and reversed in part.
Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Evidence, Expert; Evidence (Law).
*Synopsis: Office of Children's Services (OCS) petitioned to terminate mother's parental rights to her daughter, an Indian child under the Indian Child Welfare Act (ICWA). After a bench trial, the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, J., terminated mother's parental rights, and mother appealed.
*Holding: The Supreme Court, Carpeneti, J., held that:
(1) expert for OCS was not required to have familiarity with Native culture in
order to qualify as an expert, when the basis for the termination was unrelated to
Native culture;
(2) trial court did not commit plain error when it qualified expert as able to
provide testimony on whether continued custody was likely to result in serious
emotional or physical damage;
(3) evidence was sufficient to establish beyond a reasonable doubt that mother's
continued custody was likely to result in serious emotional or physical damage;
and
(4) testimony of expert was sufficient to meet the proof requirements of the
ICWA though expert did not interview the mother or daughter.
Affirmed.
Subjects: Marijuana -- Law and legislation; Searches and seizures; Evidence (Law); Criminal actions arising on Indian reservations; Casinos; United States. Constitution. 4th Amendment; United States. Indian Civil Rights Act.
*Synopsis: After denying defendant's motion to suppress evidence found in search of hotel room at Indian casino, following a bench trial the Circuit Court of the Third Judicial Circuit Moody County, David R. Gienapp, J., convicted defendant of possession of controlled substances, intent to distribute marijuana, possession of marijuana, and ingesting substances. Defendant appealed.
*Holding: The Supreme Court, Gilbertson, C. J., held that reasonableness of search of defendant's hotel room by security guards had to be assessed under Fourth Amendment standards by virtue of the Indian Civil Rights Act, as the guards were government actors. Reversed and remanded.
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: Appellant V.P. (Mother) is the mother of E.W. and P.W. Mother appeals from the juvenile court's order terminating her parental rights at a hearing held under Welfare and Institutions Code section 366.26 held on May 13, 2008. Mother makes a three-fold challenge under the Indian Child Welfare Act (ICWA): 1) DPSS did not provide proper notice to the Indian tribes; 2) DPSS did not receive responses from all of the noticed tribes or from the BIA; and 3) the juvenile court did not make a finding that ICWA did not apply. As discussed below, we find that any error was not prejudicial and so affirm the court's orders.
*Holding: not yet available
Subjects: Non-Indians -- On Indian reservation; Liability (Law); Personal injuries -- Casinos; Jurisdiction -- Oklahoma; Jurisdiction -- Cherokee Nation, Oklahoma; United States. Indian Civil Rights Act; United States. Indian Gaming Regulatory Act; Intergovernmental agreements -- Cherokee Nation, Oklahoma; Intergovernmental agreements -- Oklahoma.
*Synopsis: Non-Indian customer injured at Indian casino brought personal injury action against limited liability company (LLC) organized by Indian Tribe to run the casino. The District Court of Rogers County, Dynda Post, J., denied motion by Indian Tribe's LLC to dismiss for lack of subject matter jurisdiction, and Indian Tribe's LLC filed petition for writ of certiorari.
*Holding: After granting the petition, the Supreme Court, Watt, J., held that:
(1) Indian Tribe was a party to customer's personal injury action;
(2) Indian Civil Rights Act (ICRA) was not an impediment to state court jurisdiction over the action; (3) neither the Indian Gaming Regulatory Act (IGRA) nor Indian Tribe's tribal gaming compact with State of Oklahoma enlarged Tribal jurisdiction to include the action; and
(4) state court had jurisdiction, as customer had not entered into a consensual relationship with the Tribe and customer's presence at the casino did not have a direct impact on the Tribe's political integrity. Affirmed in part, reversed in part, and remanded.
Related News Stories: High court greenlights suit against Cherokees (Journal Record) 1/26/09.
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, a member of the Cherokee Nation, appealed order of the Superior Court, Maricopa County, No. JD 13827, Frank Johnson Jr., J. pro tem., terminating her parental rights to her three children. The Court of Appeals, Hall, J., 195 P.3d 192, affirmed. Mother appealed.
*Holding: The Supreme Court, Bales, J., held that:
(1) statutory termination grounds and best interests findings were to be found under the "clear and convincing evidence" standard;
(2) reasonable-doubt standard for emotional or physical harm to the child under ICWA did not preempt state-imposed burdens of proof; and
(3) conflicting rule, which required application of "beyond a reasonable doubt" standard in cases involving Indian children, was invalid.
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