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December

Shane L. v. Amanda L.
21 Neb.App. 591, 842 N.W.2d 140
Nos. A–13–380 through A–13–383
Court of Appeals of Nebraska, December 31, 2013

*Synopsis: State filed a motion to terminate father and mother's parental rights to their four Indian children. The County Court, Box Butte County, Russell W. Harford, J., sitting as a juvenile court, terminated father and mother's parental rights, and they appealed.

* Holding: The Court of Appeals, Riedmann, J., held that:
(1) it lacked jurisdiction to review father and mother's argument that juvenile court erred in denying their motions to transfer jurisdiction of case to the tribal court, and
(2) State proved by clear and convincing evidence that terminating father and mother's parental rights was in children's best interests.
Affirmed.

Philip J v. Department of Health & Social Services, Office of Children's Services
314 P.3d 518
Nos. S–14810, S–14994.
Supreme Court of Alaska, Dec. 13, 2013

*Synopsis: In two separate cases, the Office of Children's Services (OCS) filed petitions to terminate mother and father's parental rights to children. The Superior Court, Fourth Judicial District, Bethel, Leonard Devaney, J., terminated father's parental rights to seven of his children, then terminated parental rights to eighth child. Father appealed both orders.

* Holding: After consolidating the appeals, the Supreme Court, Fabe, C.J., held that:
(1) evidence supported finding that the OCS made active efforts to reunify Indian father with his seven oldest children;
(2) the trial court was not required to make active efforts findings as to specific social workers;
(3) social workers' failure to refer father for a batterer's intervention program or a substance abuse evaluation did not render the OCS efforts to reunify father's Indian family inadequate; and
(4) evidence supported finding that father was unwilling to participate in services, which the court could consider when determining that the State made active efforts to reunify father's Indian family.
Affirmed.

Otoe-Missouria Tribe of Indians v. NY State Dep't of Financial Serv.
Briefs from Turtle Talk
769 F.3d 105 
No. 13–3769–CV.
United States Court of Appeals, Second Circuit, Argued: Dec. 5, 2013. Decided: Oct. 1, 2014.

*Synopsis: Federally recognized Indian tribes, limited liability companies owned by tribes, and tribes' internal regulatory bodies brought action alleging that New York's ban on high-interest, short-term consumer loans they offered over internet violated Indian Commerce Clause. The United States District Court for the Southern District of New York, Richard J. Sullivan, J., 974 F.Supp.2d 353, denied plaintiffs' motion for preliminary injunction, and they appealed.

* Holding: The Court of Appeals, Gerard E. Lynch, Circuit Judge, held that district court did not abuse its discretion in determining that plaintiffs failed to demonstrate likelihood of success on merits.
Affirmed.

Kealoha v. Machado
131 Hawai'i 62, 315 P.3d 213
No. SCAP–11–0001103.
Supreme Court of Hawai‘i, Dec. 3, 2013

*Synopsis: Native Hawaiians, as defined under Hawaiian Homes Commission Act (HHCA), brought action against Office of Hawaiian Affairs (OHA) trustees, alleging that trustees improperly expended funds derived from public land trust on Hawaiians, as opposed to native Hawaiians, in violation of trustees' statutory and constitutional duty to expend trust funds "in the sole interest" of native Hawaiians. The First Circuit Court, Karl K. Sakamoto, J., dismissed complaint for failure to state a claim and denied plaintiffs' motion for leave to file an amended complaint. Plaintiffs appealed.

* Holding: The Supreme Court, Recktenwald, C.J., held that:
(1) plaintiffs' complaint failed to state a claim for breach of fiduciary duty, and
(2) proposed amendment to complaint would have been futile.
Affirmed.

November

Pawnee Well Users, Inc. v. Wolfe
320 P.3d 320
Supreme Court Case No. 12SA13.
Supreme Court of Colorado, Nov. 25, 2013

*Synopsis: Owners of vested rights and citizen groups whose members owned vested rights challenged State Engineer's final nontributary ground water rules which included basin-specific rules that delineated water contained within geologic formations across state as nontributary for purposes of administering ground water wells used in oil and gas production. State Engineer, Southern Ute Indian Tribe, and various oil and gas industry intervenors opposed challenge. The District Court, Water Division 1, James F. Hartmann, J., found that the State Engineer had issued an improper advisory rule and, thus, could not promulgate the basin specific rule, known as the Fruitland Rule. State Engineer, Tribe, and several intervenors filed a direct appeal.

* Holding: The Supreme Court, Eid, J., held that Tribal Rule, providing that produced nontributary ground water final rules and regulations were not to be construed to establish the jurisdiction of either state or Southern Ute Indian Tribe over nontributary ground water within boundaries of Tribe's reservation, did not and could not divest State Engineer of his authority to promulgate final rules governing water extracted during oil and gas production throughout the state, including nontributary groundwater.
Reversed and remanded.

In re Autumn K.
2013 WL 6092859
A136586.
Court of Appeal, First District, California., Division 2, California, Nov. 20, 2013

*Synopsis: County Health and Social Services Department commenced child dependency proceeding, alleging jurisdiction based on parents' substance abuse problems, and Indian tribe intervened. Following termination of reunification services, the Superior Court, Del Norte County, No. JVSQ11-6026, John R. Morrison, J., denied maternal grandmother's request to be designated as a de facto parent, denied mother's request for reinstatement of reunification services, terminated parental rights, and ordered adoption as permanent plan. Both parents appealed.

* Holding: The Court of Appeal, Richman, J., held that:
(1) grandfather's misdemeanor conviction for contributing to the delinquency of a minor was not a nonexemptable offense;
(2) Department was required by statute to evaluate maternal grandfather's request for exemption to allow placement of Indian child in grandparents' home;
(3) tribal custody forms which mother and grandmother executed upon child's birth did not grant grandmother custody over Indian child; and
(4) court did not improperly apply the existing Indian family doctrine.
Reversed and remanded.

State ex rel Dewberry v. Kitzhaber
259 Or.App. 389, 313 P.3d 1135
160323044; A146366.
Argued and Submitted Oct. 23, 2012.
Decided Nov. 14, 2013.

*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 the Indian Gaming Regulatory Act (IGRA). The Circuit Court dismissed the petition, and residents appealed. The Court of Appeals, 220 Or.App. 345, 187 P.3d 220, reversed and remanded, and the State appealed. The Supreme Court, 346 Or. 260, 210 P.3d 884, affirmed and remanded. On remand, the Circuit Court, Lane County, Karsten H. Rasmussen, J., entered summary judgment in favor of Governor and tribes. Property owners appealed.

* Holding: The Court of Appeals, Nakamoto, J., held that:
(1) State statute governing agreements by the state and local governments with American Indian tribes conferred authority on Governor to enter into gaming compact with Indian tribes under IGRA;
(2) state constitutional ban on the operation of casinos in the state does not apply on Indian lands located within state's borders; and
(3) statute authorizing the Governor to enter into gaming compact with Indian tribes did not improperly delegate legislative functions to the Governor in violation of separation of powers doctrine.
Affirmed.

Squaxin Island Tribe v. Washington State Department of Ecology
312 P.3d 766
No. 42710–9–II..
Court of Appeals of Washington Div. 2, Nov. 13, 2013

*Synopsis: Indian tribe sought review of Department of Ecology's denial of its rulemaking petition, which sought amendments to watershed management rules to protect minimum instream flows of creek. The Thurston Superior Court, Paula K. Casey, J., found that denial of petition was arbitrary and capricious. Department appealed.

* Holding: The Court of Appeals, Forbes, J., held that:
(1) Department's written denial of tribe's rulemaking petition satisfied statute that required agency to provide reasons for rejecting a rulemaking request, and
(2) decision to deny tribe's rulemaking petition was not arbitrary and capricious.
Reversed.

Loya v. Gutierrez
319 P.3d 656
No. 32,405.
Court of Appeals of New Mexico, Nov. 13, 2013
Certiorari Granted, Feb. 7, 2014, No. 34,447.

*Synopsis: Arrestee brought § 1983 action against tribal police officer, alleging false arrest, malicious prosecution, and excessive force. Officer filed third-party declaratory judgment action against county, alleging county was required to defend and indemnify him. The District Court, Santa Fe County, Barbara J. Vigil, D.J., granted summary judgment for county. Officer appealed.

* Holding: The Court of Appeals, Vanzi, J., held that:
(1) officer was not law enforcement officer under the Tort claims Act, and
(2) officer was not public employee.
Affirmed.

In the Matter of E.G.M.
750 S.E.2d 857
No. COA13–584.
Court of Appeals of North Carolina, Nov. 5, 2013

*Synopsis: County department of social services (DSS) filed a petition alleging child was a neglected juvenile and was subject to the Indian Child Welfare Act (ICWA). The District Court, Jackson County, Donna Forga, J., granted legal custody of child to DSS, ordered child's continued placement with family friend, established a plan of reunification with mother, and relieved DSS of further efforts towards reunification with father. Mother and father appealed.

* Holding: The Court of Appeals, Bryant, J., held that:
(1) remand was required to provide for a redetermination of the trial court's subject matter jurisdiction over neglect proceeding involving an Indian child;
(2) the Court of Appeals could not take judicial notice of memorandum of agreement (MOA) Indian tribe and DSS signed;
(3) qualified expert testimony that continued custody of the Indian child by the parent or Indian custodian was likely to result in serious emotional or physical damage to child was to be introduced at the hearing that resulted in foster care placement of the Indian child; and
(4) as a matter of first impression, a trial court may order the cessation of reunification efforts in Indian Child Welfare Act (ICWA) cases if the court finds that such efforts would clearly be futile.
Vacated and remanded.

October

In re J.D.
373 Mont. 440, 318 P.3d 172 (Table)
No. DA 13–0268.
Supreme Court of Montana, Oct. 22, 2013

*Synopsis: The Department of Health and Human Services filed a petition to terminate father's parental rights to Indian child. The District Court of the Eighth Judicial District, Cascade County, Dirk M. Sandefur, P.J., terminated parental rights. Father appealed.

* Holding: The Supreme Court, Brian Morris, J., held that evidence supported finding that the Department made active efforts to reunify child with her parents.
Affirmed.

State of Idaho v. Native Wholesale Supply Company
312 P.3d 1257
No. 38780.
Supreme Court of Idaho, Oct. 15, 2013

*Synopsis: State brought action against out-of-state Indian-owned wholesaler for operating as a cigarette wholesaler without a permit and for selling cigarettes that were unlawful for sale in Idaho. The District Court, Ada County, Timothy Hansen, J., enjoined wholesaler from selling wholesale cigarettes without a wholesale permit and assessed civil penalties. Wholesaler appealed.

* Holding: The Supreme Court, Horton, J., held that:
(1) wholesaler was not required to obtain wholesaler permit;
(2) State had subject matter jurisdiction to prevent non-compliant cigarettes from being imported;
(3) Indian Commerce Clause did not preclude regulation;
(4) trial court had personal jurisdiction over wholesaler pursuant to long-arm statute; and
(5) exercise of personal jurisdiction comported with due process.
Affirmed in part, reversed in part, and remanded.

People v. Herne
41 Misc.3d 1086, 973 N.Y.S.2d 546
No. I–38–2013.
County Court, Franklin County, New York, Oct. 15, 2013

*Synopsis: Defendant was indicted for aggravated driving while intoxicated, driving while intoxicated, and speed not reasonable and prudent. Defendant asserted that St. Regis Mohawk Tribal Police lacked jurisdiction to arrest her outside their reservation.

* Holding: The County Court, Franklin County, Robert G. Main Jr., J., held that, as a matter of first impression, officers lacked jurisdiction and authority to arrest defendant while off St. Regis Mohawk Reservation.
Dismissed.

Guardianship of D.W.
221 Cal.App.4th 242
A136982.
Court of Appeal, First District, California., Division 4, California, Oct. 10, 2013

*Synopsis: Minor's maternal aunt filed a petition for appointment of guardian and a petition for appointment of temporary guardian. The Superior Court, Sonoma County, No. SPR–84391, James G. Bertoli, J., granted petition for appointment of temporary guardian, and, following hearing on compliance with Indian Child Welfare Act of 1978 , granted aunt's request to be appointed child's permanent guardian. Minor's paternal grandmother appealed, and Indian tribe intervened.

* Holding: The Court of Appeal, Ruvolo, P.J., held that:
(1) determination that ICWA did not apply was not immediately appealable;
(2) any waiver of right to appeal by grandmother did not forfeit tribe's rights; and
(3) court was required to give tribe notice.
Reversed and remanded.

State v. Wolfe
2013 WL 5526299
No. 38896.
Court of Appeals of Idaho, Oct. 8, 2013

*Synopsis: Defendant was convicted and sentenced in the District Court, Second Judicial District, Idaho County, George R. Reinhardt, III, J., of murder. Approximately 23 years later, defendant filed motion for correction of illegal sentence, which was denied by the District Court, Michael J. Griffin, J. Defendant moved for reconsideration and filed second successive petition for post-conviction relief. The District Court, Griffin, J., dismissed petition but did not explicitly rule on motion for reconsideration. Approximately seven years later, defendant moved for hearing on motion for reconsideration, which motion for hearing was denied. Defendant appealed. During pendency of appeal, defendant filed successive motion for correction of illegal sentence, which motion was denied. Defendant filed amended notice of appeal.

* Holding: The Court of Appeals, Gutierrez, C.J., held that:
(1) Court had jurisdiction to review denial of hearing on reconsideration motion;
(2) Court had jurisdiction to review denial of successive motion to correct illegal sentence;
(3) trial court had jurisdiction to entertain reconsideration motion;
(4) defendant abandoned reconsideration motion; and
(5) res judicata barred successive motion for correction.
Affirmed.

Kyle S. v. State, Dep't of Health & Social Services
309 P.3d 1262
No. S–14975.
Supreme Court of Alaska, Oct. 4, 2013

*Synopsis: The Department of Health and Social Services filed a petition alleging Indian child was a child in need of aid. The Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Randy M. Olsen, J., adjudicated child as a child in need of aid. Father appealed.

* Holding: The Supreme Court, Fabe, C.J., held that evidence supported finding that the State made active efforts to prevent the breakup of father's Indian family.
Affirmed.

September

Sheffer v. Buffalo Run Casino
315 P.3d 359
No. 109265.
Supreme Court of Oklahoma, Sept. 24 2013
Rehearing Denied Dec. 2, 2013.

*Synopsis: Driver of tractor trailer and passengers in tractor trailer, who were injured when their tractor trailer collided with a vehicle driven by driver, who was allegedly intoxicated from drinking alcohol at gaming casino, sued Native American tribe and its casino under a theory of dram-shop liability. The District Court, Ottawa County, Robert G. Haney, J., dismissed, sua sponte, owner, determining that existing injunctions prohibited suit for any tort claims against a tribe or a tribal entity. Plaintiffs appealed.

* Holding: The Supreme Court, Gurich, J., held that:
(1) tribe was immune from suit in state court for compact-based tort claims, overruling Griffith v. Choctaw Casino of Pocola, 2009 OK 51, 230 P.3d 488;Dye v. Choctaw Casino of Pocola, 2009 OK 52, 230 P.3d 507,Cossey v. Cherokee Nation Enters, 2009 OK 6, 212 P.3d 447;
(2) tribe did not expressly waive its sovereign immunity from state dram shop claims when it applied for and received a state liquor license, overruling Bittle v. Bahe, 2008 OK 10, 192 P.3d 810.
Affirmed.

Brown v. DeLapp
312 P.3d 918
No. 112116.
Supreme Court of Oklahoma, Sept. 23, 2013

*Synopsis: (from the opinion) "Petitioners, Dusten Brown and the Cherokee Nation, filed in this Court a joint application for the issuance of an extraordinary writ of prohibition to prevent enforcement of an order issued by the District Court of Nowata County, the Honorable Curtis DeLapp, which granted registration in the Oklahoma District Court of Custody and Enforcement Orders entered by the Family Court of the 9th Judicial District of the State of South Carolina. . . . On August 30, 2013, an Emergency Stay was issued by the Court to prevent, during the pendency of this proceeding, enforcement of the order of the District Court of Nowata County Cause No. FA–2013–4 "to the extent that it orders immediate delivery of the child to the Adoptive Couple." Supreme Court Order, Cause No. 112,116, Aug, 30, 2013."

* Holding: (not yet available)

State v. John
233 Ariz. 57, 308 P.3d 1208
No. 2 CA–CR 2013–0233–PR.
Court of Appeals of Arizona, Division 2, Department B, Sept. 23 2013

*Synopsis: Following his conviction of failure to register as a sex offender, suspension of sentence, and imposition of 10-year term of probation, petitioner sought post-conviction relief. The Superior Court, Coconino County, No. CR201000425,Joseph J. Lodge, J., summarily denied petition. Petitioner sought appellate review.

* Holding: The Court of Appeals, Espinosa, J., held that:
(1) application of state sex offender registration laws to offender was inconsistent with federal Sex Offender Registration and Notification Act (SORNA), and
(2) state law requiring sex offender registration by tribal members residing on tribal land was preempted by SORNA.
Review granted; relief granted.

Claudio P. v. State, Dep't of Health & Social Services, Office of Children's Services
309 P.3d 860
No. S–14988.
Supreme Court of Alaska, Sept. 20, 2013

*Synopsis: In child dependency proceeding involving incarcerated father, the Superior Court, Fourth Judicial District, Fairbanks, Michael P. McConahy, J., terminated parental rights. Father appealed.

* Holding: The Supreme Court, Bolger, J., held that:
(1) evidence supported finding that child was a child in need of aid;
(2) evidence supported finding that the Office of Children's Services (OCS) made active efforts to prevent the breakup of the Indian family; and
(3) evidence supported finding that termination of father's parental rights was in child's best interest.
Affirmed.

Chloe O. v. State, Dep't of Health & Social Services, Office of Children's Services
2013 WL 5296817
No. S–14771.
Supreme Court of Alaska, Sept. 20, 2013

*Synopsis: The Office of Children's Services (OCS) filed a petition to terminate mother's parental rights to child. The Superior Court, Third Judicial District, Anchorage, Peter A. Michalski, J., terminated parental rights. Mother appealed. The Supreme Court remanded. On remand the Superior Court found, by clear and convincing evidence, that OCS made active efforts to reunify mother and child, and affirmed order terminating parental rights. Mother appealed.

* Holding: The Supreme Court, Bolger, J., held that:
(1) clear and convincing evidence supported finding that the OCS made active efforts to reunify mother with Indian child, and
(2) evidence supported finding that child would likely suffer serious harm if returned to mother's custody.
Affirmed.

Estate of Gopher
310 P.3d 521
No. DA 12–0719.
Supreme Court of Montana, Sep. 17, 2013

*Synopsis: Son of mother, an enrolled member of Indian tribe who died intestate, filed application for informal probate proceedings. Son's siblings filed motion to dismiss, asserting that jurisdiction over the matter lay with the Tribal Court. The District Court, Cascade County, Thomas M. McKittrick, J., denied motion and imposed a constructive trust on mother's estate. Siblings appealed.

* Holding: The Supreme Court, Patricia O. Cotter, J., held that district court's assumption of subject matter jurisdiction over mother's estate did not unlawfully infringe on tribe's right of tribal self-government.
Affirmed.

Thompson v. Fairfax County Department of Family Services
2013 WL 4799747
Record Nos. 2185–12–4, 2232–12–4, 2217–12–4, 2216–12–4.
Court of Appeals of Virginia, Richmond, Sept. 10, 2013

*Synopsis: County Department of Family Services filed petition to terminate parental rights of both parents of Indian child. The Circuit Court, Fairfax County, Randy I. Bellows, J., held that the guardian ad litem and foster parents had not established good cause to retain jurisdiction and ordered the case transferred to tribal court, but granted a stay pending appeal. Guardian ad litem and foster parents appealed, and parents appealed order granting stay.

* Holding: The Court of Appeals, McCullough, J., held that:
(1) appropriate standard of review was abuse of discretion;
(2) existing Indian family exception would not be adopted;
(3) tribal court had jurisdiction over both parents;
(4) best interests of child were relevant in considering transfer;
(5) proceedings were not at an advanced stage; and
(6) transfer would not cause undue hardship to parties.
Reversed and remanded.

North Central Electric Cooperative, Inc. v. North Dakota Public Service Commission
2013 WL 4714327
No. 20130075.
Supreme Court of North Dakota, Sept. 3, 2013

*Synopsis: Electric utility appealed order of the Public Service Commission, dismissing utility's complaint challenging competing electric utility's extension of electric service to a facility owned by Indian tribe on tribal trust land within Indian reservation. The District Court, Burleigh County, South Central Judicial District, Gail Hagerty, J., affirmed the Commission order, and utility appealed.

* Holding: The Supreme Court, Kapsner, J., held that Commission lacked authority to regulate tribe's decision to have competing utility provide electric service to a tribal-owned facility on tribal-owned land within the reservation.
Affirmed.

August

State v. Native Wholesale Supply Co.
2013 WL 4107633
No. 38780.
Supreme Court of Idaho, August 15, 2013

*Synopsis: State brought action against out-of-state Indian wholesaler for operating as a cigarette wholesaler without a permit and for selling cigarettes that were unlawful for sale in Idaho. The District Court, Ada County, Timothy Hansen, J., enjoined wholesaler from selling wholesale cigarettes without a wholesale permit and assessed civil penalties. Wholesaler appealed.

* Holding: The Supreme Court, Horton, J., held that:
(1) wholesaler was not required to obtain wholesaler permit;
(2) State had subject matter jurisdiction to prevent non-compliant cigarettes from being imported;
(3) Indian Commerce Clause did not preclude regulation;
(4) trial court had personal jurisdiction over wholesaler pursuant to long-arm statute; and
(5) exercise of personal jurisdiction comported with due process.
Affirmed in part, reversed in part, and remanded.

Related News Story: Idaho high court backs state regulation over Native Wholesale Supply cigs (Spokesman-Review) 8/15/13

In the Matter of K.-M.R.
2013 WL 4104345
J100681; 102910KAL1; A152931.
Court of Appeals of Oregon, August 14, 2013

*Synopsis: Department of Human Services (DHS) petitioned to terminate mother's parental rights to an Indian Child. The Circuit Court, Marion County, Albin W. Norblad, J., determined that mother was unfit by reason of conduct or condition seriously detrimental to child that could not be resolved with a reasonable time, and entered order terminating mother's parental rights. Mother appealed.

* Holding: The Court of Appeals, Schuman, P.J., held that:
(1) juvenile court did not impermissibly consider facts extrinsic to termination petition as basis for termination of mother's parental rights;
(2) evidence established, beyond a reasonable doubt, that mother's mental illness was seriously detrimental to child and that it was improbable that child could be integrated into mother's home within reasonable time period; and
(3) evidence established, beyond a reasonable doubt, that termination of mother's parental rights was in child's best interests.
Affirmed.

In re D.N.
2013 WL 4156397
No. B245303
Court of Appeal, Second Dist. Div. 4 California, August 14, 2013

*Synopsis: The Department of Children and Family Services (DCFS) filed dependency petition on behalf of two children. After terminating reunification services and determining that the Indian Child Welfare Act (ICWA) did not apply, the Superior Court, Los Angeles County, Super. Ct. No. CK13254, D. Zeke Zeidler, J., entered order terminating parental rights, and parents appealed.

* Holding: The Court of Appeal, Epstein, P.J. held that any error in failure to provide additional ICWA notice was harmless.
Affirmed.

July

State v. Clark
2013 WL 3864298
Briefs from Turtle Talk
No. 87376–3.
Supreme Court of Washington, July 25, 2013

*Synopsis: Defendant, an enrolled member of confederated tribes, was convicted in the Superior Court, Okanogan County, Jack Burchard, J., of first-degree theft. He appealed, challenging a denial of his motion to suppress evidence that was seized from his residence on tribal trust land. The Court of Appeals, 167 Wash.App. 667, 274 P.3d 1058, affirmed. Defendant petitioned for review, which the Supreme Court granted.

* Holding: The Supreme Court, Fairhurst, J., held that:
(1) the state had jurisdiction over the alleged theft, which occurred on fee land within the borders of a reservation, and
(2) the state did not infringe the sovereignty of the tribes by issuing and executing a warrant to search defendant's residence.
Affirmed.

Adoptive Couple v. Baby Girl
746 S.E.2d 346
Appellate Case No. 2011–205166.
Supreme Court of South Carolina, July 24, 2013

*Synopsis: Prospective adoptive parents filed petition to adopt child. Biological father, a member of an Indian tribe, opposed adoption, and Cherokee Nation intervened. The Family Court, Charleston County, Deborah Malphrus, J., denied petition and required prospective adoptive parents to transfer child to father. Prospective adoptive parents appealed. The South Carolina Supreme Court, Toal, C.J., 398 S.C. 625, 731 S.E.2d 550, affirmed. Certiorari was granted. The United States Supreme Court, 133 S.Ct. 2552, reversed and remanded. On remand, the South Carolina Supreme Court remanded, 746 S.E.2d 51, 2013 WL 3752641, directing entry of order finalizing adoption and termination biological father's parental rights. Biological father and Cherokee Nation filed petitions for rehearing, and biological father filed petition for supersedeas in which Cherokee Nation joined.

* Holding: The Supreme Court held that remand for entry of order finalizing adoption and terminating biological father's parental rights was appropriate.
Petitions denied.

Hamaatsa, Inc. v. Pueblo of San Felipe
2013 WL 4499246
No. 31,297.
Court of Appeals of New Mexico, July 23, 2013.

*Synopsis: Adjoining landowner brought action against pueblo, seeking declaration that road, which crossed land outside reservation boundaries acquired by pueblo in fee simple, was a state public road. Pueblo filed motion to dismiss on grounds of sovereign immunity. The District Court, Sandoval County, George P. Eichwald, D.J., denied motion. Pueblo appealed.

* Holding: The Court of Appeals, Sutin, J., held that trial court had subject matter jurisdiction over action.
Affirmed.

State v. Delorme
2013 ND 123
No. 20120380.
Supreme Court of North Dakota, July 18, 2013

*Synopsis: Defendant pled guilty in the District Court, Eddy County, Southeast Judicial District, Thomas E. Merrick, J., to two counts of guiding or outfitting without a license. Defendant appealed.

* Holding: The Supreme Court, Sandstrom, J., held that:
(1) trial court had subject matter jurisdiction based on defendant's activities and alleged criminal conduct that occurred outside designated Indian reservation land;
(2) defendant could not assert the right to guide and outfit under a license issued to his mother by a tribe of which he was not an enrolled member; and
(3) trial court acted within its discretion in granting State's motion in limine to exclude all evidence relating to subject matter jurisdiction.
Affirmed.

Adoptive Couple v. Baby Girl
2013 WL 3752641
No. 2011–205166.
Supreme Court of South Carolina, July 17, 2013

*Synopsis: Prospective adoptive parents filed petition to adopt child. Biological father, a member of an Indian tribe, opposed adoption, and Cherokee Nation intervened. The Family Court, Charleston County, Deborah Malphrus, J., denied petition and required prospective adoptive parents to transfer child to father. Prospective adoptive parents appealed. The South Carolina Supreme Court, Toal, C.J., 398 S.C. 625, 731 S.E.2d 550, affirmed. Certiorari was granted. The United States Supreme Court, 133 S.Ct. 2552, reversed and remanded.

* Holding: On remand, the South Carolina Supreme Court held that:
(1) Indian Child Welfare Act's (ICWA) placement preferences did not apply, and
(2) father's consent to adoption was not required.
Remanded.

In the Matter of D.A. and M.A
2013 WL 3710216
No. DA 12–0648..
Supreme Court of Montana, July 16, 2013

*Synopsis: After Indian mother's children were adjudicated as youth in need, Department of Health and Human Services filed petition to terminate mother's parental rights. The Eighth Judicial District Court, County of Cascade, Kenneth R. Neill, P.J., terminated mother's parental rights, and mother appealed.

* Holding: The Supreme Court, Brian Morris, J., held that:
(1) Department made sufficiently active efforts to reunify children with mother, as prerequisite to termination of mother's parental rights, under Indian Child Welfare Act (ICWA);
(2) evidence supported determination that reunification of mother with children would cause serious physical or emotional damage to children;
(3) mother stipulated to treatment plan ordered by district court; and
(4) ICWA requirement that parent's voluntary consent to termination of parental rights be reduced to writing did not apply to involuntary termination of mother's parental rights.
Affirmed.

State of Minnesota v. Saros
2013 WL 3368415
No. A12–1429
Court of Appeals of Minnesota, July 8, 2013

*Synopsis: (from the opinion) " On appeal from his convictions on stipulated facts for minor driving offenses that are civil-regulatory in nature, appellant argues that the district court erred by denying his motion to dismiss and to transfer the proceedings to tribal court because the district court does not have subject-matter jurisdiction over a tribal member who commits a minor traffic offense on one of his tribe's reservations."

* Holding: (from the opinion) "Because the district court correctly concluded that it had subject-matter jurisdiction under State v. Davis, 773 N.W.2d 66 (Minn.2009), cert. denied 130 S.Ct. 2111 (2010), we affirm."

June

Christopher C. v. State Department of Health & Social Services Office of Children's Services
303 P.3d 465
Nos. S–14892, S–14894.
Supreme Court of Alaska, June 28, 2013

*Synopsis: The Office of Children's Services (OCS) filed a petition to terminate mother and father's parental rights to their four Indian children. The Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Paul R. Lyle, J., terminated parental rights. Parents appealed.

* Holding: The Supreme Court, Maassen, J., held that:
(1) clear and convincing evidence supported finding that mother and father failed to timely remedy the conduct or conditions that endangered their children;
(2) evidence supported finding that the OCS made active efforts to provide services and programs to prevent the breakup of the Indian family;
(3) evidence supported finding that the children would likely suffer serious emotional or physical harm if returned to mother or father's custody; and
(4) a preponderance of the evidence supported finding that termination of mother and father's parental rights was in the best interests of their four children.
Affirmed.

In re S.E.
217 Cal.App.4th 610
No. B244326
Court of Appeal, Second District, Division 4, California, June 26, 2013

*Synopsis: County department of children and family services (DCFS) filed dependency petition. The Superior Court, Los Angeles County, No. CK75981, Stephen Marpet, Commissioner, sustained jurisdictional allegations, denied reunification services, ordered that child be placed under legal guardianship with maternal grandparents, and terminated jurisdiction over the case. Parents appealed.

* Holding: The Court of Appeal, Suzukawa, J., held that:
(1) DCFS was required to include child's great-great-grandfather in Indian Child Welfare Act (ICWA) notice, and (
2) failing to investigate father's alleged Indian heritage was prejudicial under ICWA.
Reversed and remanded.

In re H.M.W.
2013 WL 3213368
No. 110066.
Supreme Court of Oklahoma, June 25, 2013

*Synopsis: After mother relinquished her rights, the State sought to terminate father's parental rights. The District Court, Oklahoma County, Gregory J. Ryan, J., terminated father's parental rights without a jury trial, and appeal was taken. The Court of Civil Appeals upheld the termination without a jury trial, but ruled that father's failure to appear constituted consent to termination, and certiorari was granted.

* Holding: The Supreme Court, Reif, V.C.J., held that trial court should have deemed father to have waived the right to be present at the jury trial, and consequently, trial court erred in terminating father's parental rights without a jury trial.
Opinion of the Court of Civil Appeals vacated; judgment of the trial court reversed and case remanded.

Native Village of Tununak v. State, Dept. of Health & Social Services, Office of Children's Services
303 P.3d 431
No. S–14562.
Supreme Court of Alaska, June 21, 2013

*Synopsis: After mother's parental rights to Indian child were terminated, maternal grandmother and tribe sought to enforce the Indian Child Welfare Act's (ICWA) placement preferences and child's foster parents petitioned for adoption. the Superior Court, Third Judicial District, Anchorage, Frank A. Pfiffner, J., granted foster parents' petition for adoption. Tribe appealed.

* Holding: The Supreme Court, Stowers, J., held that:
(1) statute that required placement with family member unless there was clear and convincing evidence to deviate from that placement preference did not apply to adoptive placement determinations, and
(2) the ICWA required the clear and convincing standard of proof for departing from ICWA adoptive placement preferences.
Reversed and remanded.

Citizens for Balanced Use v. Maurier
2013 WL 3053594
No. DA 12–0306.
Supreme Court of Montana, June 19, 2013

*Synopsis: Concerned citizens group and others filed suit against Department of Fish, Wildlife and Parks (DFWP) and others arising out of DFWP's transfer of quarantined bison from national park to tribal lands, pursuant to memorandum of understanding with tribes. The 17th Judicial District Court, County of Blaine, John C. McKeon, P.J., granted plaintiffs' request for preliminary injunction to prevent further transfers, and DFWP appealed.

* Holding: The Supreme Court, Mike McGrath, J., held that:
(1) statute prohibiting DFWP from relocating wild buffalo or bison to public or private land that has not been authorized for that use by private or public landowner did not apply to relocation of quarantined bison from national park to tribal lands, and
(2) balancing of equities did not favor issuance of preliminary injunction.
Reversed; preliminary injunction vacated; remanded.

Sue/perior Concrete & Paving, Inc. v. Lewiston Golf Course Corp.
2013 WL 2674470
Supreme Court, Appellate Division, Fourth Department, New York, June 14, 2013

*Synopsis: Concrete and paving contractor brought action against, inter alia, corporation that was formed under laws of Seneca Nation of Indians, asserting causes of action for foreclosure of mechanic's lien, breach of contract, breach of implied covenant of good faith and fair dealing, quantum meruit, promissory estoppel, and fraud, in relation to contract to build golf course with associated driving range, club house, and pro shop. The Supreme Court, Niagara County, Catherine Nugent Panepinto, J., denied corporation's motion to dismiss on sovereign immunity grounds. Corporation appealed.

* Holding: The Supreme Court, Appellate Division, Peradotto, J., held that:
(1) corporation was not arm of tribe, and thus was not entitled to share tribe's immunity from suit, and
(2) contractor's breach of implied covenant of good faith and fair dealing was duplicative of its breach of contract claim.
Affirmed as modified.

In re Guardianship of K.B.F.
2013 WL 2606570
No. 43922–1–II.
Court of Appeals of Washington, Division 2, June 11, 2013

*Synopsis: Following adjudication of child as dependent, child's maternal grandparents filed guardianship petition. The Superior Court, Grays Harbor County, F. Mark McCauley, J., granted petition, and father appealed.

* Holding: As matter of first impression, the Court of Appeals, Hunt, J., held that:
(1) juvenile court lacked authority to convert dependency proceeding to one for guardianship, absent showing as to which reunification services were actually court-ordered, and not just offered to father, and
(2) Department of Social and Health Services was required to continue to make reasonable efforts towards child's reunification with father, despite decision to convert dependency proceeding to one for guardianship, until guardianship was actually established.
Vacated and remanded.

In re K.T.
990 N.E.2d 1260
No. 3–12–0969.
Appellate Court of Illinois, Third District, June 7, 2013

*Synopsis: State filed juvenile petition alleging that child, who was a member of Indian tribe, was neglected. Mother moved for continuance to allow tribe to enter case. The Circuit Court, Peoria County, Mark E. Gilles, J., denied motion and proceeded to dispositional phase, naming child as ward of court and finding that child should remain in custody of Department of Children and Family Services (DCFS). Mother appealed.

* Holding: The Appellate Court, Lytton, J., held that notice provided to Indian tribe was insufficient under Indian Child Welfare Act.
Reversed and remanded.

In re G.C., Jr.
216 Cal.App.4th 1391
C070086
Court of Appeal, Third District, California, June 7, 2013

*Synopsis: (from the opinion) "In this case, we address the issue of whether a party, by not objecting in the trial court, forfeits an objection to the failure to follow procedures related to an alternative permanent plan for Indian children established by the Legislature— tribal customary adoption—which became operative on July 1, 2010. (Stats. 2009, ch. 287, § 12.)"

* Holding: (not yet available)

In re A.R.
2013 WL 2395997
No. COA12–1554.
Court of Appeals of North Carolina, June 4, 2013

*Synopsis: In child protection proceedings as to two children, the District Court, Wake County, Monica M. Bousman, J., adjudicated both children neglected and one child abused, and ordered their removal. Parents appealed.

* Holding: The Court of Appeals, Stroud, Judge. held that:
(1) unchallenged evidence of domestic violence and medical neglect was sufficient to support children's adjudication as neglected;
(2) trial court did not abuse its discretion in concluding that it was not in best interests of subject children to return home;
(3) conditions of parents' case plans were reasonably related to reasons for children's removal; and
(4) it would remand to permit trial court to determine results of agency investigation ordered by it under Indian Child Welfare Act (ICWA).
Affirmed in part and remanded in part.

May

In re Nery V.
2013 WL 2325167
Nos. A–12–629, A–12–662.
Court of Appeals of Nebraska, May 28, 2013

*Synopsis: After mother voluntarily relinquished parental rights to two of three Indian children, the County Court, Hall County, Philip M. Martin, Jr., J., terminated father's rights to three children and mother's rights to third child. Mother and father appealed.

* Holding: The Court of Appeals, Sievers, J., held that:
(1) as a matter of apparent first impression, mother's attempted revocation of voluntary relinquishment of parental rights to children was not made within reasonable time after relinquishment and thus was invalid, but
(2) notice provided to Indian tribe of parental rights termination proceedings involving Indian children was insufficient to satisfy statutory requirements, and thus termination of such rights was invalid.
Affirmed in part, vacated in part, and remanded.

State v. Youde
2013 WL 2157687
No. 68058–7–I.
Court of Appeals of Washington, Division 1, May 20, 2013

*Synopsis: Defendant was charged with delivering marijuana. The Superior Court, Snohomish County, Thomas J. Wynne, J., quashed subpoena and dismissed. State appealed order of dismissal.

* Holding: The Court of Appeals, Becker, J., held that requirement of materiality was not satisfied when district court granted defendant's motion to dismiss on the basis of the unavailability of compulsory process after it quashed subpoena.
Reversed.

In the Matter of K.B. and T.B
2013 WL 2070209
No. DA 12–0705.
Supreme Court of Montana, May 15, 2013

*Synopsis: After the District Court, Eighth Judicial District, Cascade County, Dirk M. Sandefur, P.J., terminated mother's parental rights, mother appealed.

* Holding: The Supreme Court, Beth Baker, J., held that:
(1) Notice of termination proceedings was insufficient;
(2) State failed to demonstrate that continued custody was likely to result in serious emotional or physical damage; and
(3) State failed to demonstrate that it made active efforts to prevent breakup of Indian family.
Reversed and remanded.

In the Interest of T.E.R.
2013 WL 1908878
No. 12CA2196.
Colorado Court of Appeals, May 9, 2013

*Synopsis: In dependency and neglect action, mother moved to transfer jurisdiction to a tribal court under the Indian Child Welfare Act (ICWA). The Juvenile Court, City and County of Denver, Karen M. Ashby, J., denied the motion, and subsequently entered judgment terminating mother's and father's parental rights. Mother and father appealed.

* Holding: The Court of Appeals, Webb, J., held that:
(1) substantial evidence supported juvenile court's findings of good cause to deny transfer of jurisdiction to tribal court, and
(2) record supported juvenile court's findings that the Department of Human Services met the "active efforts" standard required by the ICWA.
Affirmed.

Robbins v. Arizona Dep't of Economic Security
2013 WL 1890620
Nos. 1 CA–UB 12–0089, 1 CA–UB 12–0090.
Court of Appeals of Arizona, May 7, 2013

*Synopsis: Claimant sought review of Department of Economic Security Appeals Board decision retroactively disqualifying him from unemployment benefits.

* Holding: The Court of Appeals of Arizona, Downie, J., held that provision excluding service with legislative body from "employment" definition applied to employment with Indian tribe.
Affirmed.

In re L.J.
2013 WL 2383667
C071919
C072166

Court of Appeal, Third District, California, May 1, 2013

*Synopsis: The Superior Court, Sacramento County, No. JD231066, Marlene E. Hertoghe, Referee, terminated parental rights. Both parents appealed, and father moved for rehearing or reconsideration. The Superior Court purported to set aside the order terminating parental rights, and then purported again to terminate the parental rights of both parents. Father appealed.

* Holding: The Court of Appeal, Raye, P.J., held that:
(1) appellate disentitlement doctrine did not apply,
(2) referee's orders purporting to set aside termination of parental rights and to terminate parental rights again were void.
One matter remanded with directions; one appeal dismissed.

April

In the Matter of D.S.B. and D.S.B.
2013 WL 1804289
No. DA 12–0495.
Supreme Court of Montana, April 30, 2013

*Synopsis: The State petitioned to terminate father's parental rights to his two children. The District Court of the Fourth Judicial District, County of Missoula, Nos. DN 10-6 and DN 10-7, John W. Larson, P.J., terminated parental rights. Father appealed.

* Holding: The Supreme Court, Mike McGrath, J., held that:
(1) evidence supported finding that the State made active efforts to provide father was remedial services and rehabilitative programs, and
(2) evidence supported finding that the children would likely suffer severe emotional or physical harm if father was to maintain custody.
Affirmed.

Santiago v. Fischer
105 A.D.3d 1223
514317
Supreme Court, Appellate Division, Third Department, New York, April 18, 2013

*Synopsis: Prisoner brought combined proceeding pursuant to Article 78 and action for declaratory judgment, for review of determinations of the Central Office Review Committee, which denied his grievances challenging correctional facilities requirement that he provide proof of his Native American ancestry in order to practice his faith. The Supreme Court, Albany County, Platkin, J., dismissed proceeding. Prisoner appealed.

* Holding: The Supreme Court, Appellate Division, held that denial of prisoner's grievances was arbitrary, capricious and without a rational basis, absent articulation of identification of any legitimate penological interest reasonably served by the documentation requirement.
Reversed and remitted.

Stephens v. Arkansas Dep't of Human Services
2013 Ark. App. 249
No. CA 12–1096.
Court of Appeals of Arkansas, April 17, 2013

*Synopsis: Department of Human Services (DHS) petitioned to terminate parental rights of mother. The Circuit Court, Sebastian County, Annie Powell Hendricks, J., granted petition. Mother appealed.

* Holding: The Court of Appeals, David M. Glover, J., held that evidence was sufficient to support determination that child would likely face serious physical or emotional damage if returned to mother, even if Indian Child Welfare Act (ICWA) standard applied.
Affirmed.

City of Duluth v. Fond Du Lac Band of Lake Superior Chippewa
2013 WL 1500884
A12–1324.
Court of Appeals of Minnesota, April 15, 2013

*Synopsis: (from the opinion) "Appellant, the City of Duluth (the city), challenges the dismissal of its breach-of-contract claim against respondent, the Fond du Lac Band of Lake Superior Chippewa (the band), arguing that the district court erred by determining that (1) it did not have jurisdiction over the claim because the band had only waived immunity with respect to claims asserted in federal court and (2) the city's claims were not ripe because the contract at issue had not yet been breached. . . . This appeal arises out of the legally complex relationship between the city and the band in relation to the Fond du Luth Casino in downtown Duluth."

* Holding: (not yet available)

In re A.M.
215 Cal.App.4th 339
C070782.
Court of Appeal, Third District, California, April 11, 2013

*Synopsis: In a dependency proceeding, the Superior Court, Yolo County, No. JV08500, Steven M. Basha, J., terminated parental rights and selected standard adoption by guardians who were not members of child's tribe as the permanent plan. Mother and tribe appealed.

* Holding: The Court of Appeal, Hull, Acting P.J., held that: (1) juvenile court was not required to order statutory 120-day continuance for tribal customary adoption (TCA) investigation; (2) juvenile court acted within its discretion in selecting permanent plan of adoption by guardians who were not members of child's tribe; and (3) any error resulting from child welfare agency's failure to address TCA in permanency planning assessment was harmless.
Affirmed.

Schultz v. Pojoaque Tribal Police Dep't
2013 WL 1482949
No. 33,372.
Supreme Court of New Mexico, April 11, 2013

*Synopsis: Claimant, the widow of tribal police officer, appealed from order of the Workers' Compensation Administration (WCA), Helen L. Stirling, Workers' Compensation Judge, denying claims for benefits in connection with officer's death. The Court of Appeals dismissed the appeal as untimely. On certiorari review, the Supreme Court, 148 N.M. 692, 242 P.3d 259,Maes, J., remanded for consideration of merits of appeal. On remand, the Court of Appeals, 269 P.3d 14,Fry, J., affirmed WCA's order. The Supreme Court granted certiorari.

* Holding: The Supreme Court, Bosson, J., held that:
(1) if an employee entitled to workers' compensation benefits fails to file a complaint or a claim within the one-year limitation period because the conduct of the employer or insurer reasonably led the employee to believe compensation would be paid, then the employee has a reasonable time thereafter within which to file; overruling Stasey v. Stasey, 77 N.M. 436, 423 P.2d 869;Lucero v. White Auto Stores, Inc., 60 N.M. 266, 291 P.2d 308;
(2) tribal police department reasonably led claimant to believe that workers' compensation benefits would be paid in connection with officer's death;
(3) claimant's filing of pro se complaint 45 days after expiration of limitation period was within a reasonable time; and
(4) claimant's filing of second complaint approximately ten months after expiration of one-year limitations period was within a reasonable time, even if second complaint was considered as completely independent of first complaint.
Reversed and remanded to Court of Appeals.

Western Montana Water Users Ass'n, LLC. v. Mission Irrigation District
299 P.3d 346
No. DA 13–0154.
Supreme Court of Montana, April 9, 2013

*Synopsis: Water users brought action against irrigation districts seeking to enjoin irrigation districts from entering into a water use agreement with Indian Tribes without submitting the final agreement to a vote of irrigators and receiving court permission. The District Court of the Twentieth Judicial District, County of Lake, C.B. McNeil, J., issued a writ of mandate and injunction enjoining irrigation districts from entering into the water use agreement. Irrigation districts appealed.

* Holding: The Supreme Court, Brian Morris, J., held that:
(1) district court improperly issued a mandate and injunction on the basis that the terms of the water use agreement exceeded the districts' authority, as none of the parties made any arguments regarding the issue of the districts' authority, and
(2) statutes did not require the districts to obtain member and court approval before entering into the water use agreement with Indian Tribes.
Reversed.

State, ex rel., Children, Youth and Families Dept. v. Marsalee P.
302 P.3d 761
No. 31,784.
Court of Appeals of New Mexico, April 9, 2013

*Synopsis: Children, Youth and Families Department filed a neglect/abuse petition against mother. The District Court, San Juan County, Sandra A. Price, J., terminated mother's parental rights, and she appealed.

* Holding: The Court of Appeals, Wechsler, J., held that:
(1) children were not "members" of Navajo Nation, and as such, the children were not "Indian children" who were subject to Indian Child Welfare Act (ICWA);
(2) Department failed to fulfill its statutory obligation under Abuse and Neglect Act to pursue enrollment on behalf of the children; and
(3) district court erred by terminating mother's parental rights before it ensured that Department had fully complied with section of Abuse and Neglect Act.
Reversed.

State v. Steven B.
2013 WL 3929050
No. 31,322.
Court of Appeals of New Mexico, April 1, 2013, Certiorari Granted, July 12, 2013, No. 34,122.

*Synopsis:In proceedings for Indian juvenile's adjudication as delinquent for committing battery upon a school employee, juvenile filed motion to dismiss for lack of subject matter jurisdiction. The District Court, McKinley County, Grant L. Foutz, D.J., granted motion. State appealed.

* Holding: The Court of Appeals, Wechsler, J., held that:
(1) land on which juvenile allegedly committed charged offense was set aside for Indian use, as prerequisite for finding dependent Indian community constituting Indian country, and
(2) state lacked jurisdiction to commence delinquency proceedings based upon actions occurring in dependent Indian community constituting Indian country.
Affirmed.

March

State ex rel. Edmondson v. Grand River Enterprises Six Nations, LTD.
308 P.3d 1057
No. 109484.
Court of Civil Appeals of Oklahoma, Division No. 2, March 27, 2013, Cert. Denied May 28, 2013.

*Synopsis: State Attorney General brought action against non-participating tobacco manufacturer (NPM) that did not join state's master settlement agreement (MSA) with other tobacco manufacturers, alleging that NPM failed to make required statutory escrow payments to state for two calendar years. NPM and tobacco importer brought action against state Attorney General and Oklahoma Tax Commission (OTC), seeking declaratory judgment interpreting escrow statute and an accounting of escrow payments allegedly due. Actions were consolidated. Following evidentiary hearing in which Attorney General presented evidence on amount of NPM's escrow deficiency, the District Court, Oklahoma County, Patricia G. Parrish, J., entered judgment in favor of Attorney General and OTC, and ordered NPM to pay two years' escrow deficiency and civil penalty. NPM and tobacco importer appealed..

* Holding: The Court of Civil Appeals, Deborah B. Barnes, V.C.J., held that:
(1) number of tobacco units sold, for purposes of determining amount of escrow payments due from NPM, was measured by number of cigarette packs or roll-your-own tobacco containers to which state excise tax stamp was affixed during disputed calendar years;
(2) NPM was required make escrow payments to state for packs of cigarettes or roll-your-own tobacco containers sold by retailers owned, licensed, or operated by an Indian tribe; and
(3) court was not required to find willful statutory violations in order to impose civil penalty on NPM.
Affirmed.

Rodewald v. Kansas Department of Revenue
297 P.3d 281
No. 105,098.
Supreme Court of Kansas, March 22, 2013

*Synopsis: Driver, who was 18 years old and a Native American, petitioned for judicial review of suspension of his driver's license following his arrest for driving under the influence (DUI). The District Court, Jackson County, Micheal A. Ireland, J., entered summary judgment in favor of the Department of Revenue (DOR). Driver appealed.

* Holding: The Supreme Court, Johnson, J., held that:
(1) driving under the influence (DUI) and implied consent statutes did not include roadways in Native American reservation over which tribal police assumed jurisdiction to enforce tribal law, and (2) DOR's jurisdiction did not extend to roadways within Native American reservation.
Reversed and remanded with directions.

In re Morris
832 N.W.2d 419
Docket No. 312248.
Court of Appeals of Michigan, March 21, 2013

*Synopsis: Department of Human Services (DHS) filed petition seeking termination of mother's and father's parental rights. The Circuit Court, Wayne County, Family Division, Mark T. Slavens, J., granted petition. Parents appealed. The Court of Appeals ultimately conditionally affirmed and remanded for proper notice consistent with Indian Child Welfare Act (ICWA). After granting father's application for leave to appeal, the Supreme Court, 491 Mich. 81, 815 N.W.2d 62, reversed judgment of the Court of Appeals, conditionally reversed trial court's termination of father's parental rights, and remanded case to trial court to resolve the ICWA notice matter. Following a hearing on remand, the Wayne Circuit Court, Family Division, reinstated order terminating father's parental rights. Father appealed as of right.

* Holding: The Court of Appeals held that:
(1) neither the ICWA, regulations of the Bureau of Indian Affairs (BIA), nor Michigan caselaw required that DHS, which interviewed child's parents concerning child's ancestry after parents were given an opportunity to confer with relatives, conduct independent research to obtain each parent's detailed genealogical information to include in notices sent to tribal entities; and
(2) father was not denied due process on remand when he was unable to obtain an adjournment of a hearing in order to obtain additional information on child's ancestry.
Affirmed.

Adoption of Baby Boy L.
2013 WL 3550023
No. 110775.
Court of Civil Appeals of Oklahoma, Division No. 1. March 18, 2013

*Synopsis: Non-Indian mother sought termination of parental rights to Indian child and order of eligibility for adoption without Indian father's consent. The District Court, Cleveland County, Barbara Swinton, J., determined that the “existing Indian family exception” controlled the Indian child custody proceeding and the child was eligible for adoption without the consent of the father. The father appealed. The Court of Civil Appeals affirmed. Certiorari was granted. The Supreme Court, 103 P.3d 1099, 2004 OK 93, reversed and remanded. On remand the District Court terminated father's parental rights. Father sought attorney fees and costs. The District Court declined to award attorney fees or costs. Father appealed.

* Holding: The Court of Civil Appeals, Larry Joplin, C.J., held that:
(1) father was not entitled to an award of attorney fees or costs under statute that awarded attorney fees and costs to the prevailing party in an action for labor or services rendered or for negotiable instruments;
(2) father was not entitled to an award of attorney fees or costs under statute that allowed for the payment of reasonable attorney fees and costs as part of the authorized adoption related costs and expenses; and
(3) adoptive parents were not required to pay father's attorney fees due to father's indigent status.
Affirmed.

In re Yakima River Drainage Basin
296 P.3d 835
No. 86211–7.
Supreme Court of Washington, En Banc, March 7, 2013

*Synopsis: Department of Ecology (DOE) filed an action seeking a general adjudication of the surface water in the Yakima River Basin. The Superior Court, Yakima County, F. James Gavin, J., entered order determining the parties' water rights to creek that was part of basin. Parties appealed. The Court of Appeals transferred appeal to the Supreme Court.

* Holding: The Supreme Court, Stephens, J., held that:
(1) decision in action brought by United States as trustee for Indian tribe in United States v. Ahtanum Irrigation District adjudicated the nontribal water rights of northside users;
(2) federal court case did not preclusively determine the reservation's practicably irrigable acreage;:
(3) trial court erred in denying the Indian reservation a right to store water from creek bordering reservation outside the irrigation season;:
(4) northside users had a right to excess water from creek;:
(5) substantial evidence supported trial court's limitation on company's excess water right in creek to a 45–day period;:
(6) rights in excess water from creek could not be exercised by parties that were not confirmed a right in federal litigation;:
(7) future development exception did not apply so as to give property owners water rights to creek after rights were relinquished by statute; and:
(8) remand was necessary for trial court to correct clerical error in judgment regarding water rights in creek so as to include religious institution's parcel of land.:
Affirmed in part, reversed in part, and remanded.

February

In re Guardianship of LNP
294 P.3d 904
No. S–12–0155.
Supreme Court of Wyoming, Feb. 20, 2013

*Synopsis: After obtaining temporary guardianship of child, maternal grandparents filed petition to convert temporary guardianship to plenary guardianship. Mother filed motion to terminate temporary guardianship. Following hearing, the District Court, Laramie County, Michael Davis, J., granted petition, and mother appealed.

* Holding: The Supreme Court, Burke, J., held that:
(1) trial court was required under Indian Child Welfare Act (ICWA) to provide notice of petition to tribe;
(2) error in conducting hearing on petition without notice of proceedings to tribe was harmless;
(3) grandparents' expert's lack of expertise or experience in tribal customs did not disqualify her from testifying on issue whether return of child to mother was likely to result in serious emotional or physical damage to child;
(4) evidence supported trial court's determination that returning child to mother was likely to cause serious physical or emotional damage to child; and
(5) order granting petition for plenary guardianship was not reversible error based on mother's claim that active efforts were not made to provide rehabilitation and remedial services.
Affirmed.

In re D.L and K.L.
298 P.3d 1203
No. 110278.
Court of Civil Appeals of Oklahoma, Division No. 3, Feb. 15, 2013

*Synopsis: Cousin filed a petition to adopt children, and then foster parents filed a petition to adopt Indian children. The District Court, Latimer County, William D. Welch, J., denied foster parents' petition and ordered transitioning of the children to cousin's home. Foster parents appealed.

* Holding: The Court of Civil Appeals, Bay Mitchell, J., held that evidence failed to establish good cause for deviating from the Indian Child Welfare Act's (ICWA) preference for adoptive placement of Indian children with extended family.
Affirmed.

Williams v. Ketchikan Gateway Borough
295 P.3d 374
No. S–14513.
Supreme Court of Alaska, Feb. 15, 2013

*Synopsis: Taxpayer, who received grant to rebuild his house from the Bureau of Indian Affairs (BIA) Housing Improvement Program (HIP) and subsequently executed deed of trust securing federal government's right to repayment under grant with property, appealed decision of the Superior Court, First Judicial District, Ketchikan, Trevor N. Stephens, J., affirming borough's ruling that house was not exempt from borough property taxation.

* Holding: The Supreme Court, Fabe, C.J., held that real property and improvements were not exempt from borough taxation.
Affirmed.

Cates v. Chiang
213 Cal.App.4th 791
D060570
Court of Appeal, Fourth District, Division 1, California, Feb. 7, 2013

*Synopsis: Former agent of California Division of Gambling Control brought taxpayer's action for injunctive and declaratory relief against California Gambling Control Commission and the State Controller, seeking to compel defendants to discharge their statutory duty to collect money derived from gambling belonging to the State from various Indian tribes. The Superior Court, San Diego County, No. GIC821775, Patricia Y. Cowett, J., granted summary judgment in favor of defendants. Former agent appealed. The Court of Appeal, 154 Cal.App.4th 1302, 65 Cal.Rptr.3d 513, reversed and remanded. On remand, former agent dismissed her substantive causes of action, and parties stipulated that court would decide the matter of attorney fees. After a bifurcated proceeding, the Superior Court, David B. Oberholtzer, J., concluded that former agent was entitled to attorney fees from both defendants, and the Superior Court, William S. Dato, J., awarded $2,011,844 in attorney fees. Defendants appealed.

* Holding: The Court of Appeal, Haller, Acting P.J., held that:
(1) sufficient evidence demonstrated that former agent's lawsuit caused the Commission to change its behavior and provide the primary relief sought, so as to support award of attorney fees under catalyst theory for vindicating a public interest;
(2) insufficient evidence demonstrated that former agent's lawsuit caused the Controller to change its behavior and provide the primary relief sought;
(3) trial court had discretion to apply futility exception to prelitigation notice requirement for recovery of attorney fees under catalyst theory;
(4) when calculating lodestar amount of attorney fees, trial court acted within its discretion in reducing the reconstructed hours for two of former agent's attorneys by 15% in light of evidentiary problems with the documentation as to those two attorneys;
(5) contingent risk factor warranted application of positive multiplier to lodestar amount with respect to attorney fees incurred by former agent in litigating merits of lawsuit;
(6) contingent risk factor warranted application of positive multiplier to lodestar amount with respect to attorney fees incurred by former agent in litigating her entitlement to attorney fees; and
(7) contingent risk factor did not warrant application of positive multiplier to lodestar amount with respect to attorney fees incurred by former agent in litigating amount of attorney fees.
Affirmed in part, reversed in part, and remanded with directions.

Northern Cheyenne Tribe v. Roman Catholic Church
296 P.3d 450
No. DA 12–0010.
Supreme Court of Montana, Feb. 5, 2013
Rehearing Denied March 12, 2013.

*Synopsis: Indian tribe brought action against Catholic school located on reservation and against Catholic diocese, alleging numerous claims, including unjust enrichment, and seeking to impose constructive trust on funds raised by school using direct mail containing images of poverty among tribe members. The District Court, Yellowstone County, Susan P. Watters, Presiding Judge, entered summary judgment in favor of school and diocese, and tribe appealed.

* Holding: The Supreme Court, Brian Morris, J., held that:
(1) tribe was not required to prove that school had committed a wrongful act in order to support unjust enrichment claim, and
(2) trial court, in determining running of statute of limitations, was required to determine when tribe received notice that school had asserted an adverse interest as to funds.
Affirmed in part, reversed in part, and remanded.

Leisnoi, Inc. v. Merdes & Merdes, P.C.
307 P.3d 879
No. S–13790.
Supreme Court of Alaska, Feb. 1, 2013
Rehearing Denied April 26, 2013

*Synopsis: Law firm filed motion for a writ of execution to enforce judgment against Alaska Native corporation. Alaska Native corporation moved for relief from the judgment. The Superior Court, Third Judicial District, Anchorage, Brian C. Shortell and Sen K. Tan, JJ., granted law firm's motion to execute and denied Alaska Native corporation's motion for relief from judgment. Alaska Native corporation appealed.

* Holding: The Supreme Court, Stowers, J., held that:
(1) as a matter of first impression, Alaska Native corporation did not waive its right to appeal trial court orders as a result of paying judgment for law firm after writ of execution was issued;
(2) arbitration award for law firm violated provision in Alaska Native Claims Settlement Act (ANCSA) prohibiting ANCSA attorney fee contingency contracts;
(3) entry of judgment on arbitration award violated the ANCSA;
(4) issuance of writ of execution violated the ANCSA;
(5) Alaska Native corporation could recover sums paid to law firm after issuance of writ of execution; but
(6) illegal judgment was not void; and
(7) Alaska Native corporation could not recover fees paid to law firm prior to the issuance of the writ of execution on the ground that the judgment was released or discharged.
Reversed in part and affirmed in part.

January

Beaulieu v. Minnesota Dep't of Human Services
825 N.W.2d 716
No. A10–1350.
Supreme Court of Minnesota, Jan. 30, 2013, Rehearing Denied March 15, 2013.

*Synopsis: Sex offender, indeterminately committed as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP), filed petition for writ of habeas corpus, alleging that his appellate counsel had provided him with ineffective assistance by failing to file a timely notice of appeal from commitment order. The District Court, Carlton County, Dale Albert Wolf, J., summarily dismissed petition. Offender appealed. The Court of Appeals, 798 N.W.2d 542, affirmed. Offender filed petition for further review.

* Holding: The Supreme Court, Anderson, G. Barry, J., held that:
(1) district court had subject matter jurisdiction to civilly commit offender, an enrolled member of the Leech Lake Band of Ojibwe;
(2) doctrines of res judicata and collateral estoppel did not preclude State from presenting at civil commitment trial evidence of conduct alleged in earlier criminal cases that ended in acquittals; and
(3) offender failed to preserve for review claim that his right to trial by jury was violated.
Affirmed.

Seminole Tribe of Florida v. Hendry County
106 So.3d 19
No. 2D12–1657.
District Court of Appeal of Florida, Second District, Jan. 23, 2013

*Synopsis: Indian tribe filed petition for writ of certiorari, seeking to quash county ordinance that rezoned land from general agriculture to planned unit development (PUD) for purpose of constructing natural gas power plant and solar energy farm. The Circuit Court, Twentieth Judicial Circuit, Hendry County, denied petition. Tribe sought second-tier certiorari review.

* Holding: The District Court of Appeal, Khouzam, J., held that:
(1) statute providing exclusive methods for party to challenge consistency of development order with comprehensive plan precluded tribe from raising in certiorari petition its claim that ordinance was inconsistent with comprehensive plan;
(2) Circuit Court afforded procedural due process and applied correct law as to issues of compatibility of ordinance's approved uses with adjacent Indian reservation;
(3) limited scope of second-tier certiorari review precluded District Court of Appeal from deciding tribe's claim that Circuit Court improperly reweighed the evidence regarding compatible uses;
(4) local development code (LDC) did not require that water needs for proposed PUD be entirely self-contained; and
(5) Circuit Court afforded procedural due process and applied correct law as to Indian tribe's claim that ordinance violated LDC's termination section.
Petition denied.

McGuire v. Aberle
826 N.W.2d 353
No. 26205.
Supreme Court of South Dakota, Jan. 16, 2013

*Synopsis: Non-Native American owners of property located within exterior boundaries of Cheyenne River Sioux Indian Reservation brought action seeking sale of land. Owners who held 2/16 interest in property, one of whom was member of tribe, counterclaimed for partition, and moved to dismiss for lack of subject matter jurisdiction. The Fourth Judicial Circuit Court, Dewey County, John W. Bastian, J., denied motion to dismiss, and following trial, ordered sale of land. Native American owner appealed.

* Holding: The Supreme Court, Zinter, J., held that tribal court did not have exclusive jurisdiction over patented fee land located within exterior boundary of Cheyenne River Sioux Indian Reservation if land was alienated under allotment acts.
Remanded.

Outsource Servs. Mgmt., LLC v. Nooksack Bus. Corp.
292 P.3d 147
No. 67050–6–I.
Court of Appeals of Washington, Division 1, Jan. 14, 2013

*Synopsis: Bank's successor in interest brought action against casino-operating tribal corporation for breach of loan agreement. The Superior Court, Whatcom County, Steven J. Mura, J., denied tribal corporation's omnibus motion to dismiss. Tribal corporation appealed.

* Holding: The Court of Appeals, Cox, J., held that:
(1) superior court had subject matter jurisdiction to decide case, where tribal corporation expressly waived its sovereign immunity;
(2) waiver was sufficiently broad to include a waiver of tribal corporation's sovereignty as well as the sovereign protection of its property; and
(3) loan agreements were not "management contracts" required to be submitted to the Chairman of the Indian Gaming Regulatory Commission for approval under the Indian Gaming Regulatory Act (IGRA).
Affirmed.

Thea G. v. Alaska, Department of Health, Social Services, Office of Children's Services
291 P.3d 957
No. S–14663.
Court of Appeals of Oregon, Jan. 9, 2013

*Synopsis: Mother, who was member of Indian tribe and whose children were eligible for membership, appealed from order of the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, J., terminating her parental rights to children.

* Holding: The Supreme Court, Fabe, C.J., held that:
(1) Office of Children's Services (OCS) provided mother with active efforts to prevent breakup of her family;
(2) sufficient evidence supported superior court's finding that children would suffer harm if returned to mother's custody; and
(3) termination of parental rights was in best interests of children.
Affirmed. Carpeneti, J., filed dissenting opinion.

 

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