*Synopsis: Indian tribe moved for summary judgment in eminent domain proceeding brought by the Department of Environmental Protection. The Circuit Court, Collier County, Jack R. Schoonover, Associate Senior Judge, denied motion. Tribe petitioned for writ of certiorari.
* Holding: The District Court of Appeal, Villanti, J., held that:
(1) Indian tribe's sovereign immunity was not implicated in eminent domain action, and
(2) Nonintercourse Act did not preclude eminent domain proceeding.
Petition denied.
*Synopsis: Maternal grandparents of Indian child, who had been awarded permanent guardianship of child by Tribal Court, filed motion seeking to have their guardianship recognized in Circuit Court, which had previously issued child custody order for child. The Circuit Court, Fifth Judicial Circuit, Brown County, Eugene E. Dobberpuhl, Retired Circuit Judge, denied motion. Grandparents appealed.
* Holding: The Supreme Court, Gilbertson, C.J., held that Tribal Court lacked exclusive jurisdiction over guardianship petition of child's maternal grandparents under exclusive jurisdiction provision of the Indian Child Welfare Act (ICWA).
Affirmed.
*Synopsis: Office of Children's Services (OCS) petitioned to terminate father's parental rights. The Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, J., granted petition. Father appealed.
* Holding: The Supreme Court, Fabe, J., held that:
(1) evidence was sufficient to support trial court's finding that father had
abandoned child;
(2) child was a child in need of aid based on father's incarceration;
(3) trial court did not err in finding that father failed to remedy the conditions
that placed child in need of aid;
(4) any failure by OCS to comply with the Indian Child Welfare Act's placement
preferences did not result in a failure to take active efforts to prevent the
breakup of the Indian family;
(5) evidence was sufficient to support trial court's finding that termination of
father's parental rights was in child's best interests;
(6) father's mother was not an Indian custodian pursuant to the Indian Child
Welfare Act; and
(7) father failed to show he was prejudiced by any alleged ineffective assistance
by counsel.
Affirmed.
*Synopsis: Defendant pled guilty in the United States District Court for the District of Hawai'i to conspiracy to traffic in Native American cultural items, as prohibited by Native American Grave Protection and Repatriation Act (NAGPRA). Defendant was subsequently indicted by a Hawai'i grand jury for theft in the first degree in connection with same items. The Circuit Court of the Third Circuit denied defendant's motion to dismiss, and defendant appealed. The Intermediate Appellate Court (ICA), 2011 WL 661793, affirmed. The Supreme Court granted certiorari.
* Holding: The Supreme Court, Recktenwald, C.J., held that:
(1) evidence on "property of another" element was sufficient to maintain grand
jury indictment; and
(2) prior federal conviction for conspiracy to traffic in Native American
cultural items did not bar, under statutory double-jeopardy provision, a
subsequent state prosecution for theft in the first degree involving same
artifacts.
Judgment of ICA affirmed.
Acoba, J., concurred and dissented separately.
*Synopsis: Purported owners of mineral interests brought trespass to try title action against well operator and landlords who granted leases to well operator, including Indian Tribe, to determine possession of the mineral rights. The 411th District Court, Polk County, Robert Hill Trapp, J., denied Indian Tribe' plea to the jurisdiction, and granted well operator's motion for summary judgment. Purported owners and Indian Tribe appealed.
* Holding:The Court of Appeals, Charles Kreger, J., held that:
(1) Indian Tribe was immune from purported owners' trespass to try title action;
(2) doctrine of stare did not establish as a matter of law location of land that was surveyed in ancient survey;
(3) doctrine of res judicata did not bar purported owners' trespass to title claims; but
(4) landowners and well operator established their title to mineral interests by a presumed grant under the doctrine of presumed lost deed; and
(5) well operator and its predecessor established peaceable possession of mineral interests for purposes of ten-year adverse possession statute of limitations.
Affirmed in part, and reversed and rendered in part.
*Synopsis: Defendant charged with possession of marijuana and paraphernalia moved to dismiss the charges. Theresa Gardunia, Magistrate, denied the motion. Defendant appealed. The District Court, Fourth Judicial District, Ada County, Kathryn A. Sticklen, J., affirmed. Defendant appealed.
*Holding: The Court of Appeals, Gutierrez, J., held that substantial evidence
supported magistrate's determination that defendant's use of marijuana was not
substantially motivated by a religious belief.
Affirmed.
*Synopsis: Former students of parochial school filed action against religious charity, as purported operator of school, for childhood sexual abuse. The Circuit Court, Second Judicial Circuit, Minnehaha County, Bradley G. Zell, J., denied charity's motion to dismiss for failure to timely serve process and found that service of process was valid. Charity appealed.
*Holding: The Supreme Court, Severson, J., held that:
(1) service on executive director of child services at parochial school was not
proper; but
(2) service by private process server on president of religious charity, within 60
days of timely delivery of complaint to county sheriff with the intent that it be
served on charity, related back to timely delivery to sheriff; and
(3) a summons that is personally served during 60-day extension period by a person
authorized to serve process under state law relates back to the date the summons
was delivered, with the intent that it be actually served, to the sheriff or other
officer of the county in which defendants, or one of them, usually or last
resided.
Affirmed.
*Synopsis: Mother appealed from order of the District Court, Thirteenth Judicial District, County of Yellowstone, Ingrid G. Gustafson, J., terminating her parental rights to children, who were members of Indian tribe.
*Holding: The Supreme Court, Patricia O. Cotter, J., held that district court
should have transferred jurisdiction over case to the Tribal Court, or determined
after a hearing that there was good cause not to do so.
Reversed and remanded.
*Synopsis: Developer brought action against Indian tribe alleging breaches of the implied covenant of good faith and fair dealing arising out of development contracts. The Superior Court, Third Judicial District, Anchorage, Peter A. Michalski, J., dismissed the suit based on sovereign immunity. Developer appealed.
*Holding:The Supreme Court, Winfree, J., held that tribe was federally recognized tribe entitled to sovereign immunity.
Affirmed.
Related News Stories: Court upholds Alaska tribal sovereignty (Alaska Public Radio) 12/13/11
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
*Synopsis: State charged defendants, who were members of Indian tribe, with engaging in the business of purchasing, selling, consigning, or distributing cigarettes without a license, unlawful possession or transportation of unstamped cigarettes, and first degree theft. Defendants filed motion to dismiss the charges. The Superior Court, Pierce County, Katherine M. Stolz, J., denied motion. Defendants sought discretionary review. The Court of Appeals certified case to the Supreme Court.
*Holding: The Supreme Court, Gerry L. Alexander, J., held that:
(1) state had nonconsensual criminal jurisdiction over defendants, and
(2) unlicensed store from which defendants were allegedly selling unstamped
cigarettes was not exempt from state cigarette tax.
Affirmed.
*Synopsis: Petitioners sought review of Attorney General's certified ballot title that would amend a number of statutory provisions pertaining to the commercial harvest and sale of salmon from the Oregon portion of the Columbia River.
*Holding: The Supreme Court, Landau, J., held that:
(1) certified ballot title caption failed to substantially comply with the
statutory requirement that it reasonably identify the subject matter of the state
measure, and
(2) summary of ballot measure failed to substantially comply with statutory
requirement that summary state the "effect" of the measure.
Ordered accordingly.
*Synopsis: State filed petition for adjudication of children in need of aid (CINA). The Superior Court, Fourth Judicial District, Bethel, Leonard Devaney III, J., issued order finding that children were in need of aid. Father appealed.
*Holding: The Supreme Court, Christen, J., held that:
(1) trial court's entry of adjudication findings in CINA proceeding after
contested probable cause hearing did not violate father's right to due process,
and
(2) father waived his right to present a closing argument at end of contested
probable cause hearing.
Affirmed.
Winfree, J., dissented, with opinion.
*Synopsis: Juveniles appealed from dispositional order of the Superior Court, Madera County, Nos. MJP016600 and MJP016601,Thomas L. Bender, J., designating legal guardianship with their maternal grandparents as their permanent placement.
* Holding: The Court of Appeal, Gomes, Acting P.J., held that evidence was sufficient to satisfy relative caregiver exception to adoption preference that grandparents were unwilling to adopt because of circumstances that did not include unwillingness to accept legal or financial responsibility.
Affirmed.
*Synopsis: (from the opinion) "This appeal arises from a child in need of aid (CINA) case involving two special needs children. Both parents have recurrent alcohol abuse problems that impact their ability to provide adequate caregiving for their children. After attempting to implement two different safety plans aimed at keeping the children in their parents' care, the State took custody of the children and placed them into foster care. Over two years later the State moved to terminate parental rights. The father appeals the superior court's order terminating his parental rights, arguing that the superior court erred in all required findings. We affirm the termination of the father's parental rights because the record contains sufficient evidence to support the superior court's findings."
*Holding: Not yet available
*Synopsis: (from the opinion) "Plaintiff and appellant the Yavapai-Apache Nation (YAN) appeals from the trial court's order granting the motion to quash service of summons filed by defendant and respondent Iipay Nation of Santa Ysabel (previously known as the Santa Ysabel Band of Diegueno Indians; "Nation"). YAN's breach of contract action arose from alleged breaches by Nation of obligations contained in several related documents, a multimillion dollar loan agreement that has been amended and restated numerous times, and that is accompanied by YAN's written loan guaranty agreement of Nation's performance of the loan agreement, also amended and restated numerous times. YAN's complaint alleges that the documents amending the loan agreement, in particular the fourth amendment, signed by Nation's tribal chairman on its behalf under a legislative authorization by Nation to engage in such a transaction, included valid waivers of tribal sovereign immunity that allowed dispute resolution in the California courts. [...]"
*Holding: Not yet available
*Synopsis: The Division of Child and Family Services (DCFS) filed a petition to terminate mother and father's parental rights to their two children. The Seventh District Juvenile Court, Castle Dale Department, 550458, 550462, Scott N. Johansen, J., terminated parental rights. Parents appealed.
*Holding: The Court of Appeals, Orme, J., held that:
(1) evidence supported finding that the juvenile court did not have "reason to
know" that the children were Indian children under Indian Child Welfare Act
(ICWA);
(2) evidence was sufficient to support finding that the children were abused or
neglected; and
(3) evidence supported finding that the trial court adequately considered mother
and father's prior parental failures with their parental fitness at the time of
the termination trial.
*Synopsis: Defendant was convicted in the Circuit Court, Jefferson County, Gregory P. Lynch, J., of attempting to elude a police officer, failing to perform duties of a driver, driving under the influence of intoxicants (DUI), and reckless driving. Defendant appealed.
*Holding: The Court of Appeals, Wollheim, J. held that:
(1) ?hot pursuit? provision of tribal code applied both to tribal police acting outside of their jurisdictional authority and nontribal police acting outside of their jurisdictional authority;
(2) arresting officer was not required to follow warrant requirements of tribal code in arresting defendant;
(3) as matter of first impression, non-tribal police officer may arrest a person for a traffic offense on the Warm Springs reservation under ?hot pursuit? provision of tribal code; and
(4) city police officer was authorized to stop and arrest driver on reservation.
Affirmed.
*Synopsis: (from the opinion) "It is ADJUDGED AND DECLARED that 20 NYCRR 74.6 is valid and enforceable, and
that defendant New York State Department of Taxation and Finance substantially
complied with State Administrative Procedure Act ss 201-a, 202-a and 202-b in
promulgating that rule" and as modified the judgment is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking, inter alia, individual
declarations that 20 NYCRR 74.6 (hereafter, the rule), concerning taxes imposed on
cigarettes on qualified Indian reservations, is null, void and unenforceable based
on the failure of defendant New York State Department of Taxation and Finance
(Department) to comply with sections 201-a, 202-a, and 202-b of the State
Administrative Procedure Act. The Department promulgated the rule in accordance
with the statutory mandate governing the sale of tax-exempt cigarettes on
qualified reservations to members of an Indian nation or tribe, as well as the
collection of the excise tax on cigarette sales to non-members of the nation or
tribe (see generally Tax Law ss 471, 471- e). Plaintiff appeals from a judgment
that, inter alia, denied its motion for summary judgment seeking declaratory and
injunctive relief and granted defendants' cross motion for summary judgment. We
agree with plaintiff that, because "[i]nterpretation of the State Administrative
Procedure Act is not dependent on an understanding of technical data or underlying
operational practices ..., the courts [should] use their own competence to decide
issues of law raised" (Matter of Industrial Liaison Comm. of Niagara Falls Area
Chamber of Commerce v Williams, 72 N.Y.2d 137, 144). Nevertheless, we agree with
Supreme Court that our standard of review is whether there has been substantial
compliance with the State Administrative Procedure Act in promulgating the rule (
see s 202[8]; Industrial Liaison Comm. of Niagara Falls Area Chamber of
Commerce, 72 N.Y.2d at 144), and we conclude that there was substantial
compliance."
*Holding: Not yet available
*Synopsis: Taxpayer, a Native nonprofit corporation that applied to borough assessor for charitable-purpose tax exemptions on several of its properties, appealed decision of the Superior Court, Fourth Judicial District, Fairbanks, Raymond Funk, Judge pro tem, affirming denial as to four properties, and ordering taxpayer to pay borough $38,416 in attorney fees.
*Holding: The Supreme Court, Carpeneti, C.J., held that:
(1) tribal hall met exclusive use requirement of charitable-purpose tax
exemption statute, and
(2) taxpayer was entitled to charitable-purpose tax exemptions for properties it
rented to other nonprofit organizations.
Reversed in part, vacated in part, and remanded.
*Synopsis: (from the opinion) ?After parental rights to an Indian child living in Fillmore County were involuntarily terminated, the White Earth Band of Ojibwe (the Band) petitioned for transfer of the ensuing preadoptive placement proceedings to its tribal court. The district court granted the Band's motion and the court of appeals affirmed. Because we conclude that transfer of preadoptive proceedings to tribal court is not authorized by federal or state law, we reverse.?
*Holding: Not yet available.
*Synopsis: (from the opinion) ?A mother with a history of mental illness and alcohol abuse, in a relationship that consistently resulted in domestic violence, lost parental rights to her two young children. The mother appeals the superior court's ruling that the Office of Children's Services (OCS) made active efforts to provide remedial and rehabilitative services and the court's admission of a report of a psychological evaluation. Because the evidence supports the superior court's finding that OCS made active efforts, and because the mother waived her objection to the admission of the psychological evaluation report, we affirm the superior court's order terminating her parental rights.?
*Holding: Not yet available.
*Synopsis: Indian tribe that owned casino and resort brought action against contractor, alleging breach of construction contract. Contractor brought various counterclaims, some of which were dismissed on prior appeal, 67 A.D.3d 1345, 888 N.Y.S.2d 828. Third-party defendant architect brought fourth-party claim for indemnification against construction manager. The Supreme Court, Onondaga County, Deborah H. Karalunas, J., then denied tribe's motion for partial summary judgment on remaining counterclaims and denied fourth-party defendant construction manager's motion for summary judgment. Tribe and construction manager appealed.
*Holding: The Supreme Court, Appellate Division, held that:
(1) contractor was barred from seeking amounts in excess of contractual
guaranteed maximum price, and
(2) manager's contract with tribe expressly required manager to indemnify
architect.
Affirmed as modified.
*Synopsis: (From the Opinion) "A father and mother appeal from the order terminating their parental rights to their one-year-old son. They contend the juvenile court erred in terminating parental rights without the testimony of a qualified expert witness and that the State failed to prove active efforts were made for reunification. The father also contends the juvenile court erred in failing to address placement until after the termination hearing. The mother also contends termination is not in the child's best interests. Considering the parents' lack of involvement with the child and their periods of incarceration during these proceedings, we find termination of parental rights in the best interests of the child. The parents are also unable to safely parent the child and provide for his extensive medical needs. The child's permanency cannot be further delayed. The Iowa Indian Child Welfare Act (ICWA) requirements under Iowa Code chapter 232B are satisfied in this case. For these reasons, we affirm the decision of the juvenile court."
*Holding: Not yet available
*Synopsis: (From the Opinion) "The Petitioners/Appellees, petitioned to adopt grandson, G.D.J., by filing a Petition for Adoption and an Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother. The natural mother, Respondent/Appellant, contested the adoption. The trial court entered two orders on August 11, 2010, in favor of the Grandparents on the Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother and one order on December 2, 2010, Order Adjudicating Minor Eligible for Adoption Without Consent of the Natural Mother. This is a consolidated appeal of those orders. Judgement of the District Court affirmed in part; reversed in part; the adoption process may proceed. "
*Holding: Not yet available
*Synopsis: (from the opinion) "Raymond W. (father) and Ivy B. (mother) appeal from orders denying their Welfare & Institutions Code section 388 change of circumstance petitions and terminating their parental rights as to their son, Hunter W. The juvenile court held a hearing on appellants' section 388 petitions. Appellants checked in at the morning calendar call, but were not present in court at the start of the hearing hours later. Appellants' respective counsel requested a brief two-hour delay to locate them. The court denied the request and proceeded with the section 388 hearing and then the section 366.26 permanency hearing. Appellants argue the court violated their right to due process by denying the requests and by proceeding with the hearing in their absence. Under the circumstances presented, we conclude the court abused its discretion in denying the requests to delay the hearing, and reverse on that ground. Mother also argues that the court erred in finding that the Indian Child Welfare Act (ICWA) did not apply in this case. We do not agree, and affirm on that issue."
*Holding: Not yet available
*Synopsis: (from the opinion) ?Erik Lane, Sr. (Father), appeals from an order of the trial court upon jury verdict terminating his parental rights to his minor children, EPFL, Jr., HRSL, and JJL (the Children). Father raises the following issues on appeal: (1) whether the trial court erred in overruling his demurrer and finding that the State of Oklahoma met its burden to prove that active efforts had been made to prevent the breakup of this Indian family, an (2) whether the trial court erred by refusing to invoke the rule of sequestration. After reviewing the record and applicable law, we find the trial court did not err in overruling the demurrer or in refusing to invoke the rule of sequestration as to an expert witness. Accordingly, we affirm the order of the trial court.?
*Holding: Not yet available.
*Synopsis: Objectors petitioned for writ of mandamus challenging county's approval of mixed-use development project under California Environmental Quality Act (CEQA), the Planning and Zoning Law, and the California Water Code. The Superior Court, Madera County, No. MCV045353,James E. Oakley, J., granted petition in part and denied it in part. Objectors, county, and developers appealed.
*Holding: The Court of Appeal, Dawson, J., held that:
(1) EIR's proposed mitigation measure of "verification" that four prehistoric sites were historical resources improperly contradicted EIR's conclusion that the sites were historical resources;
(2) on issue of first impression, preservation of archaeological historical resources in place is not always mandatory when feasible;
(3) a lead agency may not adopt projected future events as the baseline for EIR analysis; and
(4) EIR unreasonably omitted circumstances affecting likelihood of availability of water.
Affirmed in part and reversed in part.
*Synopsis: Decedent's brother brought action against individual officers on Indian tribe's police force, alleging tort and s 1983 claims arising from decedent's death while being arrested by officers. The Superior Court, Pierce County, Susan K. Serko, J., granted defendants' motion to dismiss for lack of subject matter jurisdiction. Brother appealed.
*Holdings: The Court of Appeals, Appelwick, J., held that:
(1) tribal sovereign immunity barred tort claims;
(2) officers were not state actors, as required to state s 1983 claim.
Affirmed.
*Synopsis: (From the Opinion) "Lakesha R. appeals the orders terminating her parental rights to Nathkesha M., Nathan M., Hassan M., Hassada M., and Matitus M. The only issue Lakesha R. raises on this appeal is whether the trial court complied with WIS. STAT. ss 48.422(8) & 48.422(9)(a).] She contends that it did not and, accordingly, wants us to vacate the orders. We affirm."
*Holding: Not yet available
*Synopsis: Defendant, a non-native American, was convicted in the Superior Court, Whatcom County, Leon F. Henley, Jr., J., of driving under the influence (DUI) in connection with an incident in which she was detained by a tribal police officer who pursued her beyond the borders of an Indian reservation after observing alleged traffic infractions. Defendant moved for discretionary review.
*Holding: On reconsideration, the Supreme Court, Fairhurst, J., held that tribal
police officer lacked the inherent authority to stop and detain defendant on
ordinary state land outside Indian reservation.
Reversed and remanded.
*Synopsis: (From the Opinion) "Karol Kelly appeals from a judgment in a divorce action brought by Richard Kelly in which the district court granted her custody of the parties' minor child, restrained her from interfering with Richard Kelly's insurance business for five years, and awarded Richard Kelly a $40,000 cash payment for Karol Kelly's conduct. We conclude the district court had subject matter jurisdiction to decide child custody, the court did not abuse its discretion in awarding Richard Kelly the $40,000 cash payment, and the court did not err in restraining Karol Kelly from interfering with Richard Kelly's insurance business. However, we conclude the court erred in not limiting the geographic scope of the restraining order under N.D .C.C. s 9-08-06."
*Holding: Not yet available
*Synopsis: State sought permanent termination of mother and father's parental rights to Indian child and appointment of a guardian with the right to consent to child's adoption. Tribe petitioned to transfer the proceedings to the tribal court. The Circuit Court, Cook County, Richard A. Stevens, J., denied tribe's petition to transfer, terminated mother and father's parental rights on findings of unfitness, and determined that it was in child's best interest to be adopted by her foster mother. Mother, father, and tribe all appealed.
*Holding: The Appellate Court, Cahill, J., held that: *Synopsis: Commercial tenant, a nonmember of tribe, brought action seeking
declaratory judgment regarding his interest under lease, for which portion of land
that was subject to lease was tribe-owned and located partially within tribe
reservation boundary. The Northeast Judicial District Court, Rolette County,
Michael G. Sturdevant, J., entered default judgment in tenant's favor, and
personal representative of estate appealed.
*Holding: The Supreme Court, Carol Ronning Kapsner, J., held that: *Synopsis: (From the Opinion) "The probate court appointed 16-year-old H.C.'s brother and sister-in-law as
her guardians over the objection of her mother, L.B. L.B. contends the court
committed constitutional error when it declined her requests for appointed
counsel. She also asserts the guardianship is not supported by substantial
evidence and that the court failed to obtain a statutorily required report and
comply with the notice requirements of the Indian Child Welfare Act (ICWA). In the
published portion of this opinion, we conclude L.B. was not entitled to appointed
counsel. In the unpublished portion we conclude that only the ICWA claim has
merit. We therefore order a limited reversal for compliance with the ICWA, and
otherwise affirm the judgment."
*Holding: Not yet available
(1) transferring proceeding for termination of parental rights to tribal court
constituted an undue hardship and, thus, good cause not to transfer;
(2) proceeding for termination of parental rights was at an advanced stage when
tribe petitioned to transfer proceeding to tribal court, and thus good cause
existed to not transfer case;
(3) child's foster home placement was in compliance with the Indian Child
Welfare Act of 1978;
(4) State met its burden of establishing by a preponderance of the evidence
active efforts to provide remedial services and rehabilitative programs; and
(5) trial court did not err in considering the risk of emotional or physical
harm reunification would present to child and basing its decision to terminate
parental rights in part on that factor.
Affirmed. Gustafson v. Estate of Poitra
2011 WL 3484437
No. 20100277.
Supreme Court of North Dakota, Aug. 10, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
(1) Supreme Court would exercise jurisdiction over personal representative's
appeal from entry of default judgment, even though personal representative did not
file motion for relief from default, and
(2) district court lacked subject matter jurisdiction to resolve claim over
property that was tribe-owned and situated within tribe reservation's boundary.
Vacated.Guardianship of H.C., Z.B. et al.
2011 WL 3506420
No. No. A126914.
Court of Appeal, First District, Division 3, California, August 9, 2011
*Synopsis: After termination of guardianship and reinstatement of dependency proceeding, the Superior Court, Sonoma County, No. 2980-DEP, Lawrence E. Ornell, Commissioner, denied mother's request to reconsider reunification services, affirmed guardianship as the permanent plan and appointed successor guardians, and ordered supervised visitation for mother twice per year. Mother appealed.
*Holding: The Court of Appeal, Jenkins, J., held that:
(1) after termination of guardianship parents previously denied reunification services may be granted such services; but
(2) refusing to allow mother to reopen issue of reunification services was harmless beyond a reasonable doubt;
(3) no finding of detriment was required to reduce mother's visitation to twice per year; and
(4) reducing mother's visitation to twice per year was proper.
Affirmed.
*Synopsis: (From the Opinion) "PER CURIAM. Case No. S-10-280 is before this court on the motion for rehearing filed by the appellant regarding our opinion reported at StoreVisions v. Omaha Tribe of Neb., 281 Neb. 238, 795 N.W.2d 271 (2011). We overrule the motion, but modify the opinion as follows:
In the section of the opinion designated "Waiver of Sovereign Immunity," we withdraw the 12th and 13th paragraphs, id. at 248, 795 N.W.2d at 280, and substitute the following:
The situation presented by this appeal is virtually identical to the one presented in Rush Creek Solutions [Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402 (Colo.App.2004) ]. One difference is that, in this appeal, the Tribe and StoreVisions entered into a separate waiver prior to entering into the underlying contracts. As noted, this separate waiver was signed in the presence of *979 five of the seven members of the tribal council and lends even more weight to an appearance that the signatories to the document--the chairman and vice chairman--were vested with the authority to waive the Tribe's sovereign immunity. Indeed, the presence of five of the seven members of the tribal council in the tribal meeting room at the Tribe's headquarters, along with the tribal council's vote on resolution No. 08-74, strongly suggest that the action of the chairman and the vice chairman, both members of the tribal council, were, on these facts, essentially the action of the tribal council itself. Unlike those cases wherein the agent was a party removed from the principal by time, place, and/or organizational structure, the agent and the principal in this case, if not actually one and the same, are very nearly one and the same. We conclude that based upon these undisputed facts, the chairman and vice chairman had the requisite authority to waive the Tribe's sovereign immunity. The Tribe's first assignment of error is without merit. The remainder of the opinion shall remain unmodified. FORMER OPINION MODIFIED. MOTION FOR REHEARING OVERRULED. "
*Holding: Not yet available
*Synopsis: Objectors to city's application for modification of its assured water supply designation brought action against Arizona Department of Water Resources (ADWR) and town, claiming that proposal would adversely affect their interests in river and challenging ADWR's determination that they lacked standing to participate as objectors during the administrative review process. Indian tribe that was among the objectors during administrative review intervened. The Superior Court, Maricopa County, No. CV2009-000947, Robert H. Oberbillig, J., entered partial summary judgment in favor of defendants. Tribe appealed.
*Holding: The Court of Appeals, Orozco, J., held that:
(1) Groundwater Management Act (GMA) limited pool of potential objectors to residents of the active management area (AMA) where the water was to be used;
(2) limitation on pool of objectors did not infringe on tribe's right of access to the courts to litigate water rights;
(3) distinction between residents and non-residents did not violate equal protection under rational basis test;
(4) tribe's water rights were not at issue, and thus tribe was not entitled to notice and a hearing on town's application.
Affirmed.
*Synopsis: (From the Opinion) "The superior court granted a preliminary injunction, prohibiting defendants and appellants Black Hawk Tobacco, Inc. (Black Hawk) and Frederick Allen McAllister (McAllister) from selling cigarettes to non-Indians in violation of state and federal laws. Black Hawk and McAllister appeal from the order granting the injunction. (Code Civ. Proc., s 904.1, subd. (a)(6).) On appeal, defendants argue that the State of California cannot regulate defendants' sale of cigarettes to non-Indians because defendants are operating stores located on trust lands held by the United States for the Agua Caliente Band of Cahuilla Indians (the Band), a federally-recognized tribe. We reject this argument and hold the superior court did not abuse its discretion in granting the preliminary injunction against defendants."
*Holding: Not yet available
Related News Story: C.A. upholds injunction barring tobacco sales on tribal land to non-Indians (Metropolitan News-Enterprise) 08/09/11
*Synopsis: (From the Opinion) "Pursuant to ORS 183.400, petitioner Confederated Tribes of Siletz Indians of Oregon challenges OAR 635-043-0120, a rule promulgated by the Fish and Wildlife Commission (FWC) authorizing the issuance of ceremonial hunting permits for the Confederated Tribes of the Grand Ronde Community of Oregon (Grand Ronde Tribes or "the tribe") and establishing requirements for the use of those permits. Petitioner contends that the rule is invalid because it exceeds FWC's statutory authority and because its adoption violates "separation of powers provisions of the Oregon Constitution." We reject without discussion petitioner's constitutional challenge to the rule and write only to discuss its assertion that the rule exceeds the statutory authority of the agency. Based on our review of OAR 635-043-0120 and the pertinent statutes, we conclude that the rule is valid."
*Holding: Not yet available
*Synopsis: Personal representatives of decedents brought wrongful death action against tribal casino, alleging that casino sold alcohol to decedents at a social function despite their intoxication and, as a result of casino's negligence, they were killed on their way home in a single-vehicle automobile accident. The District Court, Bernalillo County, Nan G. Nash, D.J., dismissed the action for failure to state a claim. Representatives appealed. The Court of Appeals, 238 P.3d 903, reversed and remanded. Certiorari was granted.
*Holding: The Supreme Court, Petra Jimenez Maes, J., held that:
(1) tribe's gaming compact constituted consent to jurisdiction in state court;
(2) statutory codification of dram shop liability with respect to liquor
licensees did not preempt common-law third-party dram shop claims against
non-licensees, such as a tribal casino licensed by a tribe to serve liquor; and
(3) modern public policy supported a common-law patron claim against a
non-licensed tavernkeeper, including a tribal casino, which claim would require
proof of gross negligence.
Court of Appeals affirmed.
*Synopsis: State petitioned to terminate parental rights of Native American parents, whose child was enrolled or was eligible for tribal enrollment in Navajo Nation. The Juvenile Court, Douglas County, Elizabeth Crnkovich, J., entered judgment terminating parental rights. Parents appealed. The Court of Appeals, 18 Neb.App. 679, 791 N.W.2d 343, reversed and remanded. Further review was granted.
*Holding: The Supreme Court, Gerrard, J., held that:
(1) determination that State satisfied requirement in Nebraska Indian Child Welfare Act of making active efforts to prevent breakup of Indian family was not reviewable, in absence of timely appeal, and
(2) evidence established that father's continued custody would likely result in serious emotional or physical damage to child.
*Synopsis: Enrolled members of Leech Lake and Bois Forte bands of Minnesota Chippewa Indian tribe moved to dismiss, for lack of subject-matter jurisdiction, county's proceedings to have each of them civilly committed as a sexually dangerous person (SDP). The District Court, Cass County, John P. Smith, J., denied motions. Tribe members appealed. The Court of Appeals, 782 N.W.2d 274, affirmed. Tribe members petitioned for review.
*Holding:
(1) public Law 280, which granted Minnesota limited civil jurisdiction over
specifically provided for state enforcement of civil laws in Indian country within
the state, granted the state courts subject-matter jurisdiction to civilly commit
an enrolled member of federally recognized Indian tribe as a SDP, and
(2) state court had subject-matter jurisdiction to civilly commit enrolled
members of Minnesota Chippewa Indian tribe as SDPs, as exceptional circumstances
existed and federal law did not preempt state jurisdiction.
Affirmed.
*Synopsis: Contractor petitioned to compel arbitration with Indian tribe. The Superior Court, Riverside County, No. RIC535124, Gary B. Tranbarger, J., denied petition. Contractor appealed.
*Holding:The Court of Appeal, Hollenhorst, Acting P.J., held that arbitration clause was not a waiver of tribe's sovereign immunity. Affirmed.
*Synopsis: The Superior Court, Los Angeles County, No. CK 01672, Marguerite D. Downing, J., terminated mother's parental rights to two of her children. Mother appealed.
*Holding: The Court of Appeal, Grimes, J., held that omission of ZIP code in mailing notice did not support appellate review of order denying reunification services. Appeal dismissed.
*Synopsis: Speaker of state House of Representatives and president of state Senate brought special action challenging the qualifications of three nominees to the Independent Redistricting Commission (IRC).
*Holding:The Supreme Court, Bales, J., accepted jurisdiction and held that:
(1) Speaker and president had standing to challenge qualifications of nominees;
(2) irrigation district directors are excluded from serving as IRC commissioners;
(3) members of Congress are excluded from serving as IRC commissioners;
(4) tribal judges are not proscribed from serving as IRC commissioners.
*Synopsis: The Office of Children's Services (OCS) petitioned to terminate mother's parental rights to child. The Superior Court, Fourth Judicial District, Fairbanks, Paul R. Lyle, J., terminated parental rights. Mother appealed.
*Holding:The Supreme Court, Christen, J., held that:
(1) evidence supported finding that mother failed, within a reasonable time, to remedy the conduct that placed child at substantial risk of harm;
(2) evidence supported finding that mother was given a reasonable time in which to remedy the conditions that placed child at substantial risk of harm;
(3) clear and convincing evidence supported finding that the OCS made active efforts to reunify the family;
(4) evidence supported finding that child would be at substantial risk of emotional or physical damage if returned to mother's custody; and
(5) evidence supported finding that termination of mother's parental rights was in child's best interests.
Affirmed.
*Synopsis: Mother appealed from a judgment of the Denver Juvenile Court, Donna J. Schmalberger, J., terminating her parent-child legal relationship with child.
*Holding: The Court of Appeals, Webb, J., held that:
(1) mother provided sufficient information to trigger the notice requirements of the Indian Child Welfare Act (ICWA);
(2) Department of Human Services (DHS) and guardian ad litem (GAL) expressly waived the psychotherapist-client privilege with regard to therapist's treatment of child;
(3) juvenile court did not have the authority to waive the psychotherapist-client privilege for child; and
(4) GAL had the authority to waive the psychotherapist-client privilege for child.
Vacated and remanded.
*Synopsis: (from the opinion) "Former employee brought action against his former employer, the Department of Transportation and Public Facilities (DOTPF), arising out of termination of employment. The Superior Court, Third Judicial District, Anchorage, Frank A. Pfiffner, J., granted summary judgment in favor of DOTPF. Employee appealed."
*Holding:The Supreme Court, Fabe, J., held that:
(1) former employee failed to establish prima facie case of employment discrimination, and
(2) DOTPF did not violate implied covenant of good faith and fair dealing by terminating employment.
Affirmed.
*Synopsis: Former employees of tribe, who were terminated from employment prior to end of three year term, brought action against tribe for breach of contract. Tribe moved to dismiss on grounds of tribal sovereign immunity. The District Court, Ottawa County, Robert E. Reavis, J., on motion for reconsideration, granted tribe's motion to dismiss for lack of subject matter jurisdiction, and dismissed case. Former employees appealed.
*Holding: The Supreme Court, Edmondson, J., held that tribe did not expressly and unequivocally waive its sovereign immunity with respect to employment contracts. Affirmed.
*Synopsis: (from the opinion) "The Village of Hobart appeals a judgment declaring that Brown County may designate the law enforcement arm of the Oneida Tribe as the primary responsive agency to 911 calls originating within a 1,700-acre area of the Village. The Village contends that the designation is contrary to the statute establishing the statewide emergency number, WIS. STAT. s 256.35, and violates the Village's mandatory obligation to provide police services under WIS. STAT. s 61.65(1)(a)."
*Holding: (not yet available)
*Synopsis: (from the opinion) "In this appeal we first address the question of state court jurisdiction in a dram shop action brought under the Tribal-State Class III Gaming Compact, negotiated between the State of New Mexico and the Pueblo of Santa Ana pursuant to the Indian Gaming Regulatory Act of 1988, 25 U.S.C. ?? 2701-2721 (2006). There is an apparent conflict between Section 8 of the Compact,1 which provides for state court jurisdiction where a casino visitor has been injured by the conduct of a casino, and Section 191 of the Pueblo of Santa Ana Liquor Ordinance, which reserves exclusive jurisdiction to tribal courts. See Pueblo of Santa Ana Liquor Ordinance, 71 Fed. Reg. 17,903, 17,910 (Apr. 7, 2006) (Pueblo Liquor Ordinance)."
*Holding: (not yet available)
Related News Story: NM court allows lawsuit against tribal casino for serving alcohol to intoxicated siblings (Daily Reporter) 6/28/2011.
*Synopsis: Native American tribe filed complaint against Department of Revenue (DOR) for the refund of sales and excise taxes for fuel purchased off the reservations and tribal lands, but used for the performance of the tribe's functions as a sovereign government, and a declaration that the tribe was exempt. The Circuit Court, Seventeenth Judicial Circuit, Broward County, David Krathen, J., entered summary judgment in favor of tribe. DOR appealed.
*Holding:As a matter of first impression, the District Court of Appeal, May, J., held that fuel was taxable.
*Synopsis: Father and mother appealed from entry of amended judgment of the Circuit Court, Yamhill County, Ronald W. Stone, J., taking jurisdiction over their six minor children based on finding of medical neglect. The Court of Appeals, 237 Or.App. 133, 239 P.3d 255, reversed and remanded. On remand the Circuit Court entered a dispositional judgment that provided that the permanency plan for the children was adoption. Parents appealed.
*Holding: The Court of Appeals, Schuman, P.J., held that reversal of dispositional judgment that changed the permanency plan of the children to adoption was warranted.
*Synopsis: The Arizona Department of Economic Security (ADES) filed a petition to terminate mother's parental rights to her children. The Superior Court, Maricopa County, No. JD14624, Benjamin R. Norris, J., terminated parental rights. Mother appealed.
*Holding:The Court of Appeals, Weisberg, J., held that:
(1) the clear and convincing standard of proof, rather than the beyond a reasonable doubt standard, applied to trial court's determination under the Indian Child Welfare Act (ICWA) of whether the ADES had made active efforts to reunite mother with her children;
(2) clear and convincing evidence supported finding that the ADES made active efforts to prevent the breakup of Indian family; and
(3) the trial court's order requiring Indian children to remain in their foster care placements, rather than placing the children with a maternal aunt, was not an abuse of discretion.
*Synopsis: Employee filed claim against tribe casino employer, other tribal entities, and employer's workers' compensation carrier, seeking workers' compensation benefits. The Workers' Compensation Administration (WCA) awarded benefits. Employee and witness then pursued claims for retaliation against same tribe defendants based on claims that employee's and witness' gaming licenses from tribal entity were revoked, which resulted in their termination from employment. The Workers' Compensation Administration, Gregory Griego, Workers' Compensation Judge, 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 to employee but denied employee's request for reinstatement. Employee appealed. The Court of Appeals, 146 N.M. 735, 215 P.3d 44, affirmed in part, reversed in part, and remanded. On remand, the Workers' Compensation Administration, Gregory Griego, Workers' Compensation Judge, that employer could not be ordered to rehire employee. Employee appealed.
*Holding:The Court of Appeals, Linda M. Vanzi, J., held that:
(1) rehiring was required by statute;
(2) workers' compensation judge, on remand, failed to follow Court of Appeals'
mandate from the earlier appeal; and
(3) denial of employee's request for prejudgment interest was not an abuse of
discretion.
*Synopsis: Injured construction worker commenced Labor Law and common-law negligence action against contractors seeking damages for injuries worker sustained when truss he had lifted overhead onto aerial platform of scissor lift fell on him at construction project at Indian casino. Contractors filed third-party claim against injured worker's employer. The Supreme Court, Niagara County, Ralph A. Boniello III, J., granted worker partial summary judgment pursuant to Scaffold Law, denied in part and granted in part defendants' cross-motion for summary judgment against worker, and denied part of cross-motion seeking summary judgment against employer. Contractors appealed.
*Holding:The Supreme Court, Appellate Division, held that:
(1) Labor Law's vicarious liability provisions applied even though injury was sustained on Indian reservation;
(2) contractors were liable under Scaffold Law;
(3) Building Code provision did not apply;
(4) contractors did not owe statutory or common-law duty of care; and
(5) antisubrogation rule barred indemnification claim up to amount of limits of policies insuring the parties.
Affirmed as modified.
*Synopsis: (from the opinion) The State of California sued defendant Native Wholesale Supply Company for allegedly violating state law on cigarette distribution and state law on cigarette fire safety.
*Holding:The Court of Appeal, Butz, J., held that:
(1) distributor purposefully availed itself of forum benefits;
(2) the lawsuit arose out of distributor's contacts with California; and
(3) exercise of specific personal jurisdiction over distributor was fair and reasonable.
Reversed.
*Synopsis: (from the opinion) John Kroner appeals an order transferring his civil suit to the Oneida Tribal Judicial System pursuant to WIS. STAT. s 801.54, titled, discretionary transfer of civil actions to tribal court. Kroner argues the circuit court erred because the record did not support its determination that the tribal court had concurrent jurisdiction. Kroner further contends the court failed to properly consider the statutory discretion factors. We conclude the record supports the circuit court's exercise of discretion, and affirm.
*Holding: (not yet available)
*Synopsis: After personal representative of Blackfeet Indian tribe member closed member's estate, daughter of member brought petition for determination of testacy and heirs, and challenged personal representative's handling of estate. The District Court, Glacier County, Laurie McKinnon, denied second daughter and son's motion to dismiss for lack of jurisdiction. Second daughter and son appealed.
*Holding: The Supreme Court, Patricia O. Cotter, J., held that:
(1) daughter of member was an enrolled member of tribe for purposes of analysis of district court's subject matter jurisdiction over probate of estate;
(2) proper jurisdictional analysis in both regulatory and adjudicatory actions involving tribal members or lands is to ask whether the exercise of jurisdiction by a state court or regulatory body is preempted by federal law or, if not, whether it infringes on tribal self government; overruling In re Marriage of Skillen, 287 Mont. 399, 956 P.2d 1; and
(3) district court could not exercise jurisdiction over probate of member's estate.
Related News Story: Supreme Court ruling strengthens sovereignty in Indian Country (Great Falls Tribune) 06/04/11
*Synopsis: Grantors of 80 acres of land to be held in trust for purported Indian tribe to build prospective casino brought action to void deeds. The District Court, Muskogee County, Carl Robinson, J., entered summary judgment in favor of grantors. Putative grantees appealed.
*Holding:
(1) The Supreme Court, Combs, J., held that deeds conveyed to federal trust for purported Indian tribe were void, as tribe was not federally recognized.
Affirmed.
*Synopsis: (from the opinion) In this dependency and neglect proceeding, B.R. (mother) appeals from the judgment terminating the parent-child legal relationships between her and J.C.R. and between her and N. M-E. and N.M-E. (the twins), and T.R. (father) appeals from the judgment terminating the parent-child legal relationship between him and J.C.R. We affirm.
Holding: The Court of Appeals, Hawthorne, J., held that:
(1) Indian Child Welfare Act (ICWA) notice was not required;
(2) evidence supported termination of mother's parental rights;
(3) evidence supported finding that State had made reasonable efforts to prevent out-of-home placement of the children and to reunite the family; and
(4) evidence supported termination of father's parental rights.
Affirmed.
*Synopsis: (from the opinion) The question presented in this case is whether a Lower Sioux Indian Community police officer is a peace officer authorized to invoke the implied-consent law and request that a person suspected of driving while impaired submit to a chemical test for the presence of alcohol or controlled substances. Because we conclude that the Lower Sioux must have liability insurance limits in the amounts required by statute in order for a Lower Sioux police officer to qualify as a peace officer under Minn.Stat. s 169A.03, subd. 18(3) (2010), and because those limits were not in place at the time appellant was arrested for driving while impaired, we reverse.
Holding: Following grant of petition, the Supreme Court, Gildea, C.J., held that Indian community police officer lacked the authority to ask defendant to take a chemical test. Reversed.
*Synopsis: Taxpayers brought action against state of Hawai?i and city alleging that program that leased property to native Hawai?ians and exempted them from property taxes violated taxpayers' equal protection rights. The Tax Appeal Court, granted defendants' motion for summary judgment. Taxpayers appealed.
Holding: The Supreme Court, Recktenwald, C.J., held that taxpayers did not have standing to bring challenges to the constitutionality of the tax exemptions for homestead lessees.
Vacated and remanded.
*Synopsis: (from the opinion) A mother appeals the termination of her parental rights to her daughter, who qualifies for protection under the Indian Child Welfare Act (ICWA). The mother has a history of severe chronic pain and other severe medical problems that led to substance abuse. The mother argues that the State of Alaska made insufficient active efforts to address the medical conditions underlying her substance abuse.
Holding: The Supreme Court held that the State made active efforts, as required by the Indian Child Welfare Act (ICWA), to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.
*Synopsis: Department of Public Health and Human Services filed petition to terminate mother's and father's parental rights to Indian child. The District Court, Ravalli County, James A. Haynes, J., granted petition. Parents appealed.
Holding: The Supreme Court, Brian Morris, J., held that:
(1) substantial evidence supported infant's adjudication as a youth in
need of
care;
(2) sufficient evidence supported conclusion that continued custody by
parents
of their child likely would result in serious emotional or physical harm
to child;
(3) substantial evidence supported conclusion that Department made
active
efforts to provide remedial services and rehabilitative programs to
parents
designed to prevent the breakup of the Indian family; and
(4) parents' counsel did not render ineffective assistance.
Affirmed.
*Synopsis: (from the opinion) In this allocation of parental rights proceeding, the Oglala Sioux Tribe , acting through the Oglala Nation Tiospaye Resource Advocacy Center, appeals from the order denying its motion to dismiss the proceeding pursuant to 25 U.S.C. s 1911(a), or, in the alternative, transfer the proceeding to the Tribe's tribal court pursuant to 25 U.S.C. s 1911(b). We conclude that the record does not support the trial court's finding that the child had been abandoned, and thus, the record does not support the court's determination that the child's domicile was that of his caregiver rather than that of his custodial parent.
Holding: The Court of Appeals, Ney, J., sitting by assignment, held that record did not support trial court's finding that child had been abandoned. Vacated and remanded.
*Synopsis: (from the opinion) P 1 T.S. and A.S. are the young sons of S.T. . T.S. was born in 2002 and A.S. was born in 2004. The children were removed from Mother's care on December 20, 2007, and placed in foster care. Mother's parental rights to these children were terminated on June 18, 2010. She filed a timely appeal arguing the District Court abused its discretion by terminating her rights in the absence of compliance with s 1912(e) of the Indian Child Welfare Act (ICWA), 25 U.S.C. ss 1901-1963. ICWA is the federal law enacted in 1978, in part to protect the interests of Indian children and their families by establishing minimum standards under which Indian children may be removed from their homes. 25 U.S.C. s 1902.
Holding: The Supreme Court, Patricia O. Cotter, J., held that: (1) mother failed to preserve for appellate review issue of whether trial court's failure to hold expert hearing required by the Indian Child Welfare Act (ICWA) before children were removed from her home violated the ICWA, and (2) evidence supported termination of mother's parental rights. Affirmed.
*Synopsis: (from the opinion) In May 2008, the Sacramento County Department of Health and Human Services removed the minor from the custody of mother and father. In October 2008, the juvenile court sustained the jurisdictional allegations and denied reunification services to both parents. In May 2009, the court terminated the parents' rights to the minor. Mother appealed from that order, claiming the juvenile court failed to comply with ICWA. As stated in this court's opinion, mother identified the following errors in the Department's ICWA notices: "(1) the notices failed to list the relative through whom mother's purported Indian heritage derived, despite [the Department] having been given the information by mother and mother's cousin; (2) [Department] failed to satisfy the inquiry provisions as to the father's purported ancestry with the Blackfeet Nation; and (3) they failed to list father's ancestral information."
Holdings: (1) newly published list of agents for service of process under ICWA did not invalidate prior ICWA notice, and(2) mother's failure to object in juvenile court forfeited challenges to alleged defects in new ICWA notices for second appeal.
*Synopsis: State filed a petition alleging child to be within the jurisdiction of the Juvenile Code and a motion for temporary custody of child. The Juvenile Court, Douglas County, Vernon Daniels, J., granted parents' motions to dismiss, which were premised on an alleged lack of personal jurisdiction and improper venue because child did not reside in Douglas County. State appealed.
Holding: The Court of Appeals, Irwin, J., held that:
(1) Juvenile Court had subject matter jurisdiction to hear petition;
(2) proof of venue was immaterial to the determination of whether child
fell
within jurisdiction of Juvenile Code; and
(3) State courts retained subject matter jurisdiction over proceeding
despite
child's alleged eligibility for enrollment in Indian tribe.
Reversed and remanded.
*Synopsis: Defendant, whose vehicle was stopped by an Indian tribal police officer outside the boundaries of an Indian reservation, following a pursuit from within the reservation, was convicted in the Circuit Court, Jefferson County, Daniel J. Ahern, J., of fleeing or attempting to elude a police officer and resisting arrest by a peace officer. Defendant appealed. The Court of Appeals, 233 Or.App. 573, 228 P.3d 583, reversed. State filed petition for review.
Holding: Following grant of petition, the Supreme Court, De Muniz, C.J., held that:
(1) Indian tribal police officer was a "police officer," for purposes of offense of fleeing or attempting to elude a police officer, and
(2) Indian tribal police officer was a "peace officer" for purposes of offense of resisting arrest by a peace officer.
Court of Appeals' decision reversed; Circuit Court decision affirmed.
*Synopsis: (from the opinion) According to its Third Amended Petition, SCNT is ?a domestic dependent Indian Nation located within the State of Texas.? Hernandez is an attorney licensed in Texas who served as ?attorney general? for SCNT from approximately 1993 to 2005. During that time, he maintained records for SCNT and worked on developing a casino for SCNT known as the Raven Casino Project. SCNT paid legal fees to Hernandez for his services. SCNT's petition alleges Hernandez acted without SCNT's authority in issuing a prospectus, raising money from investors, and purchasing land for the Raven Casino Project. SCNT's operative petition, over 100 pages in length, alleges an elaborate scheme involving Hernandez's use of an account created under the Interest on Lawyers Trust Account (IOLTA) program to convert funds raised for SCNT to his own use.
Holding: The Court of Appeals, Richter, J., held that:
(1) direct relationship existed between attorney's conduct in violating temporary injunction and discovery orders and the discovery sanction of striking attorney's pleadings;
(2) sanction of striking attorney's pleadings was not excessive;
(3) client's evidence of lost profits;
(4) evidence was factually insufficient to support actual damages award in excess of $665,681.22, and thus appellate court would suggest remittitur; and
(5) award of exemplary damages of $2,500,000 for fraud was excessive, and an award of no more than $665,681.22, equivalent to amount of recoverable actual damages was appropriate.
Affirmed in part and affirmed as reformed.
*Synopsis: General contractor brought action against Indian tribe for breach of contract. The District Court, Thurston County, Darvid D. Quist, J., denied tribe's motion to dismiss for lack of subject matter jurisdiction, which alleged that tribe had not waived its sovereign immunity. Tribe appealed, and the Supreme Court moved the case to its docket.
Holding: The Supreme Court, Heavican, C.J., held that:
(1) order denying tribe's motion to dismiss was not a final, appealable
order;
(2) the denial of a motion to dismiss does not occur within a special
proceeding
under statute defining a final, appealable order;
(3) order denying tribe's motion to dismiss was reviewable under the
collateral
order doctrine; and
(4) tribe's council chairman and vice chairman had apparent authority to
waive
tribe's sovereign immunity.
Affirmed.
*Related News Stories: Nebraska Supreme Court: Company can proceed with lawsuit against tribe (Lincoln Journal Star) 3/25/2011. Nebraska high court rules Omaha tribe can be sued over payment for work on casinos, racetrack (The Republic) 3/25/2011.
*Synopsis: (from the opinion) C.L. ("Father") appeals the order dated July 15, 2010, and entered on July 20, 2010, in the Indiana County Court of Common Pleas, which declined jurisdiction over a custody dispute and dismissed Father's custody petition. We affirm. Father and Z.M.F.H. ("Mother") married on April 17, 1997. They are the parents of two children, Z.F.H.L. (d.o.b.6/11/99) and C.S.F.H.L. (d.o.b.7/27/05) (collectively "Children"). From 2002 until 2004, Mother, Father, and Z.F.H.L. resided on the Pine Ridge Reservation in South Dakota. In 2004, the family relocated to Rushville, Nebraska, where C.S.F.H.L. was born. Father and Mother separated in August or September of 2006. Following the separation, Mother and Children returned to the Pine Ridge Reservation. Father moved to Indiana County, Pennsylvania. Mother agreed that Children could visit Father in November of 2006. However, Father never returned Children. Children have resided with Father in Indiana County, Pennsylvania since November of 2006.
Holding: The Supreme Court, Combs, J., held that tribe was immune from suit brought under UFDPA. Judgment of the Court of Civil Appeals vacated; judgment of the trial court reversed and remanded with instructions to dismiss.
*Synopsis: (from the opinion) Tri-County Metropolitan Transportation District of Oregon (TriMet) appeals a general judgment entered on writ of review that reversed and annulled TriMet's decision to decline publishing on TriMet vehicles a display proposed by petitioners. Petitioners Karuk Tribe of California and Friends of the River Foundation offered to pay TriMet for displaying a message about salmon restoration efforts. TriMet refused that offer based upon its advertising policy to accept only certain types of commercial advertisements and public service announcements for display. The reviewing court concluded that TriMet's decision violated Article I, section 8, of the Oregon Constitution because the advertising policy classified acceptable displays on the basis of their subject matter and transgressed the First Amendment to the United States Constitution because the advertising policy was not applied in a viewpoint neutral way.
Holding: The Court of Appeals, Sercombe, J., held that:
(1) Indian tribe was not precluded from seeking review of district decision on the basis of tribe's status as a sovereign, and
(2) district's advertising policy violated state's constitutional prohibition against the restriction of freedom of expression.
Affirmed.
*Synopsis: Bankruptcy trustee for lender, loan subservicer, and banks which owned loan participation interests brought action alleging, inter alia, claim for tortious interference with pledge agreement which required Indian tribe to pay into escrow account certain amounts that tribe owed to borrower under management agreement for development of casino on tribe's reservation. Alleged tortfeasors moved for summary judgment. The Supreme Court, New York County, Richard B. Lowe III, J., 2009 WL 2440285, granted motion. Plaintiffs appealed.
Holding: The Supreme Court, Appellate Division, held that pledge
agreement was
void for lack of approval by National Indian Gaming Commission.
Affirmed.
*Synopsis: Ditch companies filed application seeking a water court determination that two prior decrees adjudicating companies' water rights to river included priorities for year-round stockwatering and domestic uses incidental to the appropriation and use of water for agricultural purposes, including wintertime use. Indian tribe filed motions to intervene and opposing application. The District Court, Water Division 7, Water Court, Case No. 09CW22, Gregory Lyman, J., disallowed tribe's statement of opposition as untimely filed, denied motion for intervention, and subsequently determined that ditch companies' water rights included the wintertime stock watering right use. Tribe appealed.
*Holding: The Supreme Court, Hobbs, J., held that:
(1) application was for a determination of a water right, governed by rules
providing for resume notice by publication;
(2) tribe was not entitled to personal service of notice;
(3) time limit for tribe to file opposition began to run on date of original
application, not on date of companies' belated-filed verification; and
(4) tribe was not entitled to intervene.
Affirmed.
Rice, J., filed a dissenting opinion, in which Coats and Eid, JJ., joined.
*Synopsis: Defendant, a member of Yakima tribe, was convicted in the Superior Court, Yakima County, Blaine G. Gibson, J., of felony driving while under influence (DUI) and other motor vehicle crimes. Defendant appealed.
Holding: The Court of Appeals, Korsmo, A.C.J., held that:
(1) trial court had jurisdiction over charges against defendant for
traffic
offenses committed on state highway located on reservation, and
(2) Statutes requiring motorists to be licensed and which prohibited
driving
while under influence of drugs or alcohol did not impede defendant's right
under
treaty to travel.
Affirmed.
*Synopsis: (from the opinion) Native American Tribe claims sovereign immunity in a tort action where phone lines were damaged in excavation work for another tribe. Phone company filed four separate small-claims suits, and recovered judgments totaling $13,648.93, with $600 in costs. Subsequently, Phone company also recovered an attorney's fee of $34,655.09. Court of Civil Appeals affirmed on appeal.
Holding: The Supreme Court, Combs, J., held that tribe was immune from suit brought under UFDPA. Judgment of the Court of Civil Appeals vacated; judgment of the trial court reversed and remanded with instructions to dismiss.
*Synopsis: Native tribes brought declaratory judgment action against State, seeking declaration that tribes possessed inherent and concurrent jurisdiction to adjudicate children's proceedings and issue tribal court decrees. The Superior Court, Third Judicial District, Anchorage, John Suddock and Sen K. Tan, JJ., granted summary judgment in favor of tribes. State appealed.
Holding: The Supreme Court, Winfree, J., held that:
(1) issue of native tribal inherent sovereign jurisdiction, concurrent
with State,
to initiate Indian Child Welfare Act (ICWA) child custody proceedings was
ripe for
adjudication;
(2) federally recognized Alaska Native tribes that have not reassumed
exclusive
jurisdiction under the ICWA still have concurrent jurisdiction to initiate
ICWA-defined child custody proceedings, both inside and outside of Indian
country;
and
(3) federally recognized Alaska Native tribes are entitled, under the
ICWA, to
full faith and credit with respect to ICWA-defined child custody orders.
Affirmed in part and vacated in part.
*Related News Stories: Alaska tribes win adoption court case (The Fairbanks Daily News-Miner) 03/07/11. State high court empowers tribes' child custody decisions, (The Seward Phoenix Log) 3/4/2011.
*Synopsis: Following termination of parental rights, the Circuit Court, Sixth Judicial Circuit, Jones County, Mark Barnett, J., found that good cause existed for placement of minor child in an adoptive home outside the placement preferences of the Indian Child Welfare Act (ICWA). Indian tribe appealed.
Holding: The Supreme Court held that:
(1) on an issue of first impression, proper standard of review was abuse
of
discretion;
(2) on an issue of first impression, burden of proof was clear and
convincing
evidence; and
(3) good cause existed to deviate from ICWA placement preferences.
Affirmed.
*Related News Stories: South Dakota supreme court decides ICWA case ? when good cause exists to deviate from placement preferences, (Turtle Talk) 3/4/201
*Synopsis: The Office of Children's Services (OCS) filed a petition to terminate father's parental rights to his three children. The Superior Court, Third Judicial District, Anchorage, Sharon Gleason, J., terminated parental rights. Father appealed.
Holding: The Supreme Court, Carpeneti, C.J., held that:
(1) evidence supported finding that the OCS made active efforts to
prevent the
breakup of father's Indian family;
(2) evidence supported finding that father failed to remedy the conduct
that
placed his children at substantial risk;
(3) evidence supported finding that returning the children to father
would
likely result in serious emotional or physical injury; and
(4) evidence supported finding that termination of father's parental
rights was
in the best interests of the children.
Affirmed.
*Synopsis: In dependency proceedings regarding three children, father petitioned to transfer jurisdiction to tribal court. The Superior Court, San Diego County, No. J516832, Yvonne E. Campos, J., denied the petition, terminated parental rights as to one child, and ordered long-term foster care as to the others. Father and mother appealed.
Holding: The Court of Appeal, O'Rourke, Acting P.J., held that:
(1) the children were Indian children under Indian Child Welfare Act (ICWA);
(2) juvenile court was required to proceed as if the children were Indian children even if their status was not clear;
(3) father's petition to transfer proceeding to tribal court was timely filed;
(4) no evidence supported finding that tribal court could not mitigate hardship caused by distance;
(5) juvenile court failed to hold hearings on good cause to deny transfer as to two children; and
(6) juvenile court's error was jurisdictional.
Reversed with directions.
*Synopsis: Prospective adoptive parents filed petition to adopt child, whom they alleged was an ?Indian child? under the Indian Child Welfare Act (ICWA). Child's putative father filed petition seeking custody of child. Adoption and custody proceedings were consolidated. The Superior Court, Third Judicial District, Palmer, Kari Kristiansen, J., terminated putative father's parental rights and granted adoption petition. Putative father appealed.
Holding: The Supreme Court, Winfree, J., held that:
(1) trial court's sua sponte decision that child was not an ?Indian child? under the ICWA was fundamentally unfair;
(2) putative father of child sufficiently acknowledged his paternity so as to invoke application of the ICWA;
(3) evidence supported conclusion that putative father produced justifiable cause for his failure to communicate with child for a period of at least one year; and
(4) putative father produced sufficient evidence of justifiable cause for his failure to provide care and support for child during first year of child's life.
Vacated and remanded.
*Synopsis: Workers' compensation claimant sought benefits from subcontractor for whom he worked on casino expansion project located on land held in trust by the federal government for an Indian tribe after he allegedly sustained a work-related back injury. Subcontractor and its workers' compensation insurer filed motion to dismiss claim, arguing that the Office of Administrative Hearings (OAH), Workers' Compensation Section, lacked jurisdiction. Claim was dismissed by Compensation Judge Jennifer Patterson. Claimant appealed. The Workers' Compensation Court of Appeals, 2010 WL 431914, David A. Stofferahn, J., reversed. Insurer sought certiorari review.
Holding: The Supreme Court, Meyer, J., held that:
(1) OAH, Workers' Compensation Section has authority under Minnesota
Workers'
Compensation Act to hear claim arising out of an injury to a nontribal
employee
occurring on land either held directly by an Indian tribe or held by the
federal
government in trust for an Indian tribe;
(2) agreement between Indian tribe and its prime contractor for casino
expansion
project to subject all disputes arising out of the contract to the tribe's
jurisdiction did not affect the state's jurisdiction over the workers'
compensation claim of a subcontractor's non-tribal employee; and
(3) Minnesota was authorized to adjudicate claim pursuant to statute
extending
state workers' compensation laws to buildings, works, and property of the
federal
government.
Affirmed.
*Synopsis: Farm bureau federation, water associations, and individual fee payers filed lawsuit against State Water Resources Control Board (SWRCB) for declaratory and injunctive relief, and writ of mandate, after SWRCB denied plaintiffs' requests for reconsideration and refund of new annual fees imposed by statutes on holders of water right permits and licenses. The Superior Court, Sacramento County, Nos. 03CS01776 and 04CS00473, Raymond M. Cadei, J., denied plaintiffs' petitions for writ of mandate and ruled that fees imposed under statutes and emergency regulations were valid regulatory fees. Plaintiffs appealed. The Court of Appeal reversed with directions. The Supreme Court granted review, superseding the opinion of the Court of Appeal.
Holding: The Supreme Court, Corrigan, J., held that:
(1) statute requiring fees on appropriative water rights was not subject
to
supermajority vote requirement on its face;
(2) statute requiring fees on appropriative water rights was not subject
to
constitutional limitation on ad valorem real estate taxes;
(3) fees on appropriative rights held by federal entities may be
allocated to
federal water delivery contractors to the extent of contractors'
beneficial
interest;
(4) statute requiring fees on appropriative water rights did not
improperly
apply to federal entities themselves; and
(5) contractors' beneficial interest in federal water rights was not
limited to
the amount of water contracted for delivery.
Affirmed in part, reversed in part, and remanded.
*Synopsis: (from the opinion) The Oglala Sioux Tribe appeals the circuit court's judgment finding that good cause existed for placement of D.W. (Child) in an adoptive home outside the placement preferences of the Indian Child Welfare Act (ICWA)...On August 22, 2006, the State filed a petition in Jones County alleging that Child and his half-brother (Brother), then ages six and four months, respectively, were abused and neglected. At the time, Child was living with Mother and T.M., who is Brother's father. Child and Brother were taken into protective custody on December 1, 2006. Following a hearing, the Department of Social Services (DSS) was granted continued temporary custody of the children.
Holding: (not yet available)
*Synopsis: (from the opinion) In this appeal, Father argues the district court erred: (1) refusing to dismiss the abuse and neglect petition with prejudice; (2) finding sufficient evidence for abuse and neglect of Angelina; and (3) finding sufficient evidence of active efforts by Children, Youth and Families Department (CYFD) to provide remedial services and rehabilitative programs prior to the termination of his parental rights to Arthur and Angelina. We hold that the district court did not err in refusing to dismiss the abuse and neglect petition. Furthermore, we hold that there was sufficient evidence to meet the standard of proof for both a finding of abuse and neglect, and a finding of active efforts by CYFD.
Holding: The Court of Appeals, Kennedy, J., held that:
(1) father preserved for appeal his contention that statutory time limits to commence an adjudicatory hearing applied to termination hearing;
(2) amended rule that made dismissal for noncompliance with rule that set forth the time in which an adjudicatory hearing had to be commenced discretionary applied to father's motion to dismiss abuse and neglect petition, even though rule was not amended until after petition was filed;
(3) statutory provision that required dismissal of any petition when an adjudicatory hearing was not commenced within a specified time period did not trump a conflicting procedural rule promulgated by the Supreme Court that allowed the District Court discretion to dismiss or issue other sanctions for such violations;
(4) District Court's decision not to dismiss abuse and neglect petition that sought to terminate father's parental rights over an Indian child did not constitute an abuse of discretion;
(5) evidence was sufficient to prove beyond a reasonable doubt that father abused and neglected his son, an Indian child;
(6) evidence that father physically abused daughter's older sibling was sufficient to support finding of abuse and neglect of daughter, an Indian child; and
(7) evidence of past domestic violence by father against mother was sufficient to constitute grounds for termination of father's parental rights of daughter, an Indian child.
Affirmed.
*Synopsis: Biological mother's former boyfriend petitioned for primary residential custody of child who was born out of wedlock when former boyfriend and biological mother were still living together, claiming status as a "de facto" parent due to the fact that he had raised child as his own. The Superior Court, Spokane County, Gregory David Sypolt, J., denied petition upon finding that, although former boyfriend was child's "de facto" parent, he did not stand in parity with biological mother and, moreover, was not entitled to visitation. Former boyfriend appealed and biological mother cross-appealed.
Holding: The Court of Appeals, Sweeney, J., held that:
(1) biological mother's former boyfriend lacked standing to seek primary
residential custody of child under Indian Child Welfare Act (ICWA);
(2) Congress did not exceed its power under the commerce clause by enacting
ICWA; and
(3) ICWA did not deny child equal protection or substantive due process.
Affirmed.
*Synopsis: Attorney for Indian tribe filed libel suit against newspaper publisher, which published article stating that attorney admitted to ?skimming 10% of casino profits off the top.? Publisher filed motion for summary judgment. The 365th Judicial District Court, Maverick County, Amado J. Abascal, III, J., denied motion. Publisher appealed.
Holding: The Court of Appeals, Steven C. Hilbig, J., held that:
(1) time for filing suit was properly extended to include the next day that the county offices were open after last day of limitations period fell on a holiday, and
(2) factual issue remained as to whether attorney did not act as a limited-purpose public figure.
Affirmed.
*Synopsis: After parental rights to Indian child had been terminated, tribe filed a motion to transfer the case to tribal court. The District Court, Fillmore County, Robert R. Benson, J., granted the motion. The guardian ad litem appealed.
Holding: The Court of Appeals, Hudson, J., held that the juvenile court
had the
authority to transfer preadoptive-placement proceeding involving an Indian
child
who was not domiciled or residing within the tribal reservation to the
tribal
court.
Affirmed.
*Synopsis: Paternal grandparents filed petition seeking permanent legal and physical custody of child as the child's de facto custodians. The District Court, Dakota County, Rex D. Stacey, J., granted petition. Mother appealed.
Holding: The Court of Appeals, Halbrooks, J., held that:
(1) paternal grandparents were entitled to an evidentiary hearing to prove their de facto custodian status;
(2) remand was required for evidentiary hearing on issue of whether grandparents satisfied statutory requirements to establish their de facto custodian status; and
(3) in a matter of first impression, trial court had an affirmative obligation to inquire into whether the Indian Child Welfare Act (ICWA) applied to determination of whether grandparents were child's de facto custodians.
Reversed and remanded.
*Synopsis: Mother appealed from decision of the District Court, McKinley County, Louis E. DePauli, Jr., D.J., adjudicating child neglected. The Court of Appeals, 146 N.M. 588, 212 P.3d 1142, reversed and remanded. Children, Youth, and Families Department petitioned for review and mother cross-petitioned. Review was granted.
Holding: The Supreme Court, Daniels, C.J., held that:
(1) mother's consent to temporary custody did not transform involuntary proceeding to voluntary one under ICWA;
(2) on issue of first impression, findings of fact required ICWA were required to be made at adjudicatory hearing;
(3) ex parte and custody hearing were emergency proceedings under ICWA;
(4) mother's stipulation to temporary custody did not meet requirements for valid admission; and
(5) remand, rather than dismissal, was proper remedy.
District Court's adjudication reversed and remanded.
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