*Synopsis: Department of Public Health and Human Services filed petition for permanent legal custody and termination of parental rights concerning mother's parental rights to two of her three children, alleging that mother failed to complete her treatment plan. The District Court, Cascade County, Nos. BDN 16-112 and BDN 17-104, Elizabeth Best, J., terminated the parental rights. Mother appealed.
*Holdings: The Supreme Court, McGrath, C.J., held that District Court was not required to make conclusive determination that children were not Indian children Affirmed.
*Synopsis: After mother failed to reunify with Indian child and child was placed with caretakers, the Superior Court, Shasta County, No. 13JVSQ2986301, Leonard J. LaCasse, J., Retired Judge, sitting by assignment, removed child and placed child with caretakers of child's siblings to be adopted through tribal customary adoption. Contemporaneously, the Superior Court, Shasta County, Nos. 13JVSQ2986101, 13JVSQ2986201, 13JVSQ2986301, Gary G. Gibson, J., granted Pit River Tribe's petition for modification, giving full faith and credit to amended tribal customary adoption order. Mother appealed orders and appeals were consolidated.
*Holdings: The Court of Appeal, Robie, J., held that:
1) mother lacked standing to challenge child's removal from caretakers, and
2) court had authority to give full faith and credit to amended tribal customary adoption order.
Affirmed.
*Synopsis: In child protection proceedings, the District Court, Eighth Judicial District, Cascade County, Nos. ADN 16-008 and ADN 16-009, Gregory G. Pinski, J., determined that subject children were Indian children under the Indian Child Welfare Act (ICWA) and terminated father's parental rights to children. Father appealed, and appeals were consolidated.
*Holdings: The Supreme Court, Gustafson, J., held that trial court was required to make specific findings about how or if facts of case met “active efforts” required by clear and convincing evidence prior to removal of Indian children, and beyond reasonable doubt prior to termination of father's parental rights to such children, under ICWA.
Reversed and remanded.
*Synopsis: Department of Family and Protective Services petitioned seeking termination mother's parental rights to child who was a member of Ysleta Del Sur Pueblo Tribe. After emergency ex parte hearing and temporary orders, the District Court, El Paso County, Yahara Lisa Gutierrez, J., entered final judgment terminating mother's parental rights. Mother appealed.
*Holdings: The Court of Appeals, Ann Crawford McClure, C.J., held that:
1) Department was not required to provide formal notice to Tribe of emergency ex parte hearing, and
2) temporary orders were not required to make findings under Indian Child Welfare Act.
Affirmed.
*Synopsis: Brother and sister-in-law of mother killed by child's father petitioned for guardianship of child, but father requested that his sister, a Native American, be appointed guardian of child, who was an enrolled member of a tribe. The Circuit Court, Third Judicial Circuit, Brookings County, Gregory J. Stoltenburg, J., granted brother and sister-in-law's petition. Father appealed.
*Holdings: The Supreme Court, Zinter, J., held that:
1) trial court had jurisdiction pursuant to the Guardianship Act to transfer custody of child;
2) brother and sister-in-law were not required to provide father with each one of the procedural protections required in state-instituted abuse and neglect proceedings;
3) trial court's requirement that father appear via interactive television at hearing did not deprive father of due process; and
4) trial court did not abuse its discretion in appointing brother and sister-in-law permanent guardians.
Affirmed.
*Synopsis: Taxpayer brought action seeking business and occupational (B&O) tax refund. The Superior Court, James Dixon, J., 2017 WL 3317325, granted summary judgment in favor of the Department of Revenue, and taxpayer appealed.
*Holdings: The Court of Appeals, Worswick, J., held that:
1) State was not categorically barred from levying a B&O tax on taxpayer;
2) Indian Gaming Regulatory Act (IGRA) did not expressly preempt B&O tax imposed on taxpayer;
3) cash access services provided by taxpayer at tribal casinos fell outside the realm of the IGRA, and were, therefore, capable of being subject to generally-applicable state tax laws, including a B&O tax;
4) Washington-Tribal Compacts did not operate to preempt B&O tax imposed on taxpayer;
5) Indian Trader Statutes did not apply, and thus, did not preempt imposition of a B&O tax on taxpayer;
6) B&O tax was not preempted by federal law; and
7) Department of Revenue rule governing taxation of nonenrolled persons doing business in Indian county did not apply to prevent the Department from assessing a B&O tax on taxpayer.
Affirmed.
*Synopsis: Hopi Tribe brought an action against city for public nuisance after city moved forward with sale to ski resort of reclaimed wastewater for artificial snowmaking on public land. City filed a third-party indemnification claim against resort. The Superior Court, Coconino County, No. CV2011-00701, Mark R. Moran, J., dismissed action against resort. Tribe appealed. The Court of Appeals, 244 Ariz. 259, 418 P.3d 1032, reversed in part, vacated in part, and remanded. A petition for review was granted.
*Holdings: The Supreme Court, Pelander, J., held that Tribe's alleged injury from environmental damage to land, which had religious and cultural significance to Tribe, was different in degree but not in kind or quality suffered by the public, and thus Tribe did not sufficiently allege the required special injury to maintain claim.
Court of Appeals' opinion vacated and remanded; trial court's judgment affirmed.
Related News Stories: High court rules agains Hopi Tribe in snowmaking challenge (The Philadelphia Tribune) 12/1/18, Indigenous peoples denied access to sacred site as ski are opens wtih treated sewage (Navajo-Hopi Observer) 11/27/18
*Synopsis: Native American father's parental rights to child were terminated, following dispositional hearing in the Second Judicial Circuit Court, Minnehaha County, Susan M. Sabers, J., and father appealed.
*Holdings: The Supreme Court, Gilbertson, C.J., held that:
1) evidence did not support father's claim that Department of Social Services (DSS) did not make active efforts to prevent breakup of family, as prerequisite to termination of parental rights under ICWA, and
2) DSS had good cause for placing child with foster family who were not members of father's family or Native American tribe, as exception to placement preferences under ICWA.
Affirmed.
*Synopsis: County department of human services initiated a dependency and neglect case regarding two of mother's children. Department later filed another petition adding two more of mother's children. Following jury trial, the District Court, el Paso County, Theresa M. Cisneros, J., adjudicated the children dependent and neglected and entered a dispositional order that adopted a treatment plan for mother and decided on children's custody. Mother appealed.
*Holdings: The Court of Appeals, Dailey, J., held that:
1) as a matter of first impression, juvenile court's lack of compliance with ICWA's notice provisions did not divest it of subject-matter jurisdiction to enter the adjudicatory and dispositional orders;
2) department's failure to give notice of dispositional hearing to federally recognized Sioux tribes warranted reversal of court's dispositional order;
3) department failed to properly authenticate videos of mother using and distributing methamphetamine and children later having access to the same area; and
4) erroneous admission of video recordings substantially influenced the jury's verdict.
Reversed and remanded.
*Synopsis: Native Hawaiian cultural practitioners appealed the decision of the Board of Land and Natural Resources, No. BLNR-CC-16-002, granting university's application for a conservation district use permit for the development of a 30 meter telescope observatory near a sacred mountain summit. The Third Circuit Court, Greg K. Nakamura, J., affirmed. Practitioners appealed and sought transfer to the Supreme Court, which was granted. The Supreme Court, 136 Hawai'i 376, 363 P.3d 224, vacated and remanded. On remand, the Board again granted application. Practitioners appealed.
*Holdings: The Supreme Court, McKenna, J., held that:
1) disqualification of hearing officer on basis that she had a family membership to an astronomy center was not warranted;
2) Board member's comments did not fairly give rise to an appearance of impropriety and did not reasonably cast suspicion on member's impartiality, and thus member's disqualification was not required by due process;
3) Board fulfilled its constitutional requirement to protect Native Hawaiian traditional and customary rights;
4) applicant was not required to be disqualified based on its alleged hostility toward the traditional Hawaiian faith;
5) project did not violate public trust principles or provision of State Constitution requiring public natural resources to be held in trust by the State for the benefit of the people;
6) project would not have a substantial adverse impact to existing natural resources within surrounding area, community, or region under statute prohibiting a proposed land use if it would cause such impact; and
7) project was compatible with the locality and surrounding areas.
Affirmed.
Related News Stories: Thirty meter telescope permitted on sacred volcano, rules Hawaii Supreme Court (MotherBoard) 10/31/18
*Synopsis: Native Hawaiian cultural practitioners appealed the decision of the Board of Land and Natural Resources, No. BLNR-CC-16-002, granting university's application for a conservation district use permit for the development of a 30 meter telescope observatory near a sacred mountain summit. The Third Circuit Court, Greg K. Nakamura, J., affirmed. Practitioners appealed and sought transfer to the Supreme Court, which was granted. The Supreme Court, 136 Hawai'i 376, 363 P.3d 224, vacated and remanded. On remand, the Board again granted application. Practitioners appealed.
*Holdings: The Supreme Court, McKenna, J., held that:
1) disqualification of hearing officer on basis that she had a family membership to an astronomy center was not warranted;
2) Board member's comments did not fairly give rise to an appearance of impropriety and did not reasonably cast suspicion on member's impartiality, and thus member's disqualification was not required by due process;
3) Board fulfilled its constitutional requirement to protect Native Hawaiian traditional and customary rights;
4) applicant was not required to be disqualified based on its alleged hostility toward the traditional Hawaiian faith;
5) project did not violate public trust principles or provision of State Constitution requiring public natural resources to be held in trust by the State for the benefit of the people;
6) project would not have a substantial adverse impact to existing natural resources within surrounding area, community, or region under statute prohibiting a proposed land use if it would cause such impact; and
7) project was compatible with the locality and surrounding areas.
Affirmed.
Related News Stories: Thirty meter telescope permitted on sacred volcano, rules Hawaii Supreme Court (MotherBoard) 10/31/18
*Synopsis: Maternal grandparents and guardians of minor child brought petition seeking to terminate parental rights and to adopt the child whose mother was member of Indian tribe. The County Court, Saunders County, Patrick R. McDermott, J., denied petition. Grandparents appealed. The Supreme Court, 295 Neb. 213887 N.W.2d 859, reversed and remanded. On remand the County Court found father had abandoned child, terminated parental rights, and granted adoption petition. Father appealed.
*Holdings: The Supreme Court, Heavican, C.J., held that:
1) clear and convincing evidence established that maternal grandparents used active efforts to provide remedial services and rehabilitative programs designed to unite father and Indian child;
2) evidence supported finding that father had abandoned child;
3) evidence supported finding that it was in the best interest of Indian child to be adopted by maternal grandparents; and
4) vacation of adoption decree and remand was warranted based on the trial court's failure to comply with statutory adoption procedures.
Affirmed in part, vacated in part, and remanded with directions.
*Synopsis: Department of Public Health and Human Services filed petition for termination of mother's parental rights as to her two minor children. Following termination hearing, the District Court, Cascade County, Nos. ADN 16-175 and ADN-16-176, Gregory G. Pinski, P.J., terminated mother's parental rights. Mother appealed.
*Holdings: The Supreme Court, Beth Baker, J., held that:
1) trial court violated Indian Child Welfare Act (ICWA) when it terminated mother's parental rights before having conclusive determination of children's status in Indian tribe;
2) trial court's oral findings and comments within written order did not implicitly establish that court agreed active efforts to prevent the breakup of Indian family were made, as required under ICWA; but
3) mother's due process rights were not violated when Department raised issue of abandonment during closing argument.
Reversed and remanded with instructions.
*Synopsis: After Nevada juvenile court declined to exercise further jurisdiction after initially sustaining Nevada Department of Family Services (DFS) juvenile dependency petition, California county human services agency (HSA) filed juvenile dependency petitions in California, alleging that mother and father were unable to care for and protect their infant children and repeated allegations of Nevada DFS petition relating to substance abuse, criminal conduct, abuse, and neglect. Following termination of parental rights hearing, the Superior Court, Ventura County, Nos. J071566, J071567, Ellen Gay Conroy, J., terminated mother's and father's parental rights and found children to be adoptable. Mother and father appealed.
*Holdings: The Court of Appeal, Gilbert, P.J. held that:
1) California juvenile court had subject matter jurisdiction over dependency proceedings;
2) Nevada court was permitted to communicate with California court before declining jurisdiction;
3) Nevada court's order declining jurisdiction was a valid, final judgment; but
4) HSA was required to interview children's paternal great-grandmother regarding children's possible Indian heritage.
Affirmed in part, reversed in part, and remanded with instructions.
*Synopsis: After being convicted for third-degree sale of a controlled substance in the District Court, Beltrami County, receiving a stay of imposition of sentence, and being placed on probation, defendant was convicted of other criminal charges in tribal court. The District Court, Beltrami County, Paul Benshoof, J., revoked the stay for the probation violation and sentenced defendant to a 21-month prison sentence with credit for time served. Defendant appealed.
*Holdings: The Court of Appeals, Kirk, J., held that:
1) ntrajurisdictional rule for jail credit did not apply to time defendant served in custody while in tribal detention center;
2) interjurisdictional rule for jail credit did not apply; and
3) limited exception to interjurisdictional rule allowing for concurrent sentencing in multi-state context did not apply.
Affirmed
*Synopsis: Department of Health and Social Services, Office of Children's Services, (OCS) petitioned to terminate mother's parental rights to Indian child. The Superior Court, Third Judicial District, Anchorage, Andrew Guidi, J., terminated mother's parental rights, and she appealed.
*Holdings: The Supreme Court, Carney, J., held that:
1) evidence was sufficient to support trial court's finding that the OCS made active but unsuccessful efforts to prevent the breakup of Indian family;
2) evidence was sufficient to support trial court's finding that Indian mother's continued custody would likely result in Indian child suffering serious emotional or physical harm; and;
3) trial court did not err in qualifying expert witness, or in using his testimony to support its finding that continued custody of Indian child by Indian mother was likely to result in serious emotional or physical harm to the child.
Affirmed
*Synopsis: Dependency proceeding was initiated. The Superior Court, San Diego County, No. EJ3633B/C, Ana L. Espana, J., entered orders selecting tribal customary adoption proposed by Mesa Grande Band of Mission Indians as permanent plan for children. Parents appealed.
*Holdings: The Court of Appeal, Aaron, J., held that:
1) record demonstrated that parents were afforded sufficient opportunity to present evidence to tribe, in accordance with due process;
2) All-County Letter issued by Department of Social services was interpretive, and thus was not binding;
3) any error in trial court's failure to expressly confirm that parents were afforded due process opportunity to present evidence to tribe was harmless under the circumstances;
4) father failed to demonstrate that his due process rights were violated at selection and implementation hearing;
5) mother's testimony about visitation with children and bond with children was relevant to detriment, and thus was admissible in selection and implementation hearing;
6) trial court acted within its discretion in determining that parents' testimony regarding visitation narratives, visitation scheduling, and progress with services was irrelevant, and thus inadmissible, in selection and implementation hearing; and
7) any error in admitting such testimony about visitation and progress with services was harmless.
Affirmed
*Synopsis: Attorney General brought enforcement action against member of Wiyot Band of Indians for selling illegal cigarettes in violation of Unfair Competition Law (UCL), Tax Stamp Act, Directory Act, and Fire Safety Act. The Superior Court, Humboldt County, No. DR110232, W. Bruce Watson, J., granted summary adjudication in part in Attorney General's favor and entered permanent injunction against member. Member appealed.
*Holdings: The Court of Appeal, Streeter, Acting P.J., held that:
1) State court lacked civil jurisdiction to hear action;
2) State court had adjudicative jurisdiction to proceed regarding the Directory Act and the Fire Safety Act;
3) State court lacked adjudicative jurisdiction to proceed regarding the Tax Stamp Act, the Directory Act, and the Fire Safety Act derivatively through the UCL; and
4) shutdown, via injunction, of member’ business by seizing off-reservation goods did not go beyond authorized minimal burdens.
Affirmed in part, reversed in part, vacated in part, and remanded.
*Synopsis: Contractor filed petition to compel Coyote Valley Band of Pomo Indians to mediate and arbitrate claims that the tribe failed to pay the contractor for work performed under two agreements. The Superior Court, Mendocino County, No. SCUKCVG-1259929, Jeanine Nadel, J., granted motion to dismiss based on sovereign immunity and subsequently granted tribe's motion for attorney's fees as prevailing party. The Court of Appeal reversed and remanded as to the dismissal, 1 Cal.App.5th 1194, 205 Cal.Rptr.3d 699, and as to the award of attorney's fees, 2016 WL 4098730. On remand, the Superior Court, Richard J. Henderson, J., granted contractor's motion for fees he incurred in enforcing right to arbitrate. Tribe appealed.
*Holdings: The Court of Appeal, Stewart, J., held that:
1) law of the case doctrine precluded tribe from arguing that it had sovereign immunity under one agreement;
2) law of the case doctrine precluded tribe from arguing that trial court lacked jurisdiction to take any action on remand;
3) law of the case doctrine did not bar tribe from asserting that scope of waiver of sovereign immunity did not extend to attorney fee award;
4) contractor's request for attorney fees incurred in prosecuting first appeal fell within waiver of tribe's sovereign immunity; and
5) contractor was not required to waive tribal remedies prior to filing petition in state court.
Affirmed.
*Synopsis: After Department of Public Social Services (DPSS) sent Indian Child Welfare Act (ICWA) notices to the Blackfeet Tribe of Montana, the Navajo Nation, the Colorado River Indian Tribes, and the Colorado River Tribal Council, the Superior Court, Riverside County, No. RIJ1100389, Jean P. Leonard, Retired Judge, sitting by assignment, terminated mother's parental rights. Mother appealed.
*Holdings: The Court of Appeal, Fields, J., held that:
1) trial court, on remand, was required to order DPSS to send ICWA notices to all federally recognized Cherokee tribes;
2) trial court, on remand, was required to fully investigate child's paternal lineal ancestry; and
3) substantial evidence did not show that DPSS complied with sending ICWA notices.
Reversed and remanded.
*Synopsis: A petition to terminate mother and father's parental rights was filed. The Circuit Court, Family Division, Eaton County, No. 15-019320-NA, terminated mother and father's parental rights. Parents appealed.
*Holdings: The Court of Appeals, Murphy, P.J., held that:
1) the trial court erred in failing to apply the Michigan Indian Family Preservation Act (MIFPA) and the Indian Child Welfare Act (ICWA) standards when assessing whether to terminate father's parental rights to Indian child;
2) the heightened standards of the ICWA and the MIFPA applied to termination of father's parental rights to Indian child, even though father never had legal or physical custody rights as to child; and
3) clear and convincing evidence established that active efforts had been made to provide services designed to prevent the breakup of mother's Indian family.
Affirmed in part; reversed and remanded in part.
*Synopsis: County health and human services agency brought action against mother to terminate her parental rights. The Superior Court, San Diego County, No. SJ13241, Michael J. Popkins, J., entered judgment terminating parental rights. Mother appealed.
* Holdings: The Court of Appeal, Aaron, Acting P.J., held that agency's failure to provide Tohono O'odham Nation with notice of information in determining whether child was an Indian child was prejudicial.
Reversed and remanded.
*Synopsis: Non-Indian fee owner of two parcels of land located on Indian reservation by virtue of a foreclosure judgment brought action against claimants claiming an interest in the parcels. Following a bench trial, the District Court, Rolette County, Northeast Judicial District, Anthony S. Benson, J., entered judgment quieting title to fee owner, finding claimants' lessor's lien to be void, and awarding fee owner a money judgment in the amount of $67,567.98 and attorney’s fees in the amount of $6,620. Claimants appealed.
* Holdings: The Supreme Court, McEvers, J., held that:
1) an express determination by the trial court in a prior foreclosure action, that it had jurisdiction over non-Indian owned fee land located within Indian reservation, had res judicata effect in fee owner's subsequent action to quiet title to the land, and
2) the tribal court did not have jurisdiction over non-Indian fee owner's quiet title action.
Affirmed
*Synopsis: Department of Public Health and Human Services, Child and Family Services Division, filed a petition to terminate putative father's parental rights to child, who was a member of or eligible for membership in the Fort Peck Indian Tribe. The District Court, 12th Judicial District, Hill County, No. DN-15-010, Daniel A. Boucher, J., granted the petition. Father appealed.
* Holdings: The Supreme Court, Mike McGrath, C.J., held that:
1) family relationship did not exist between Indian child and putative father, and therefore, requirements of Indian Child Welfare Act (ICWA) did not apply; and
2) argument that oral pronouncement, minute entry, and order differed in the way they define the active efforts requirement was immaterial.
Affirmed
*Synopsis: Landowner filed a petition for a bill of discovery, alleging a possible cause of action of intentional interference with a business relationship against the Mohegan Tribe of Indians of Connecticut, tribe's historical preservation officers, and the Tribal Council after communications company stopped considering landowner's property as a potential site for a new cellular communications tower following a report from the tribe that the tower's placement on that property would impact the view of religiously and culturally significant tribal sites. The tribe filed a motion to dismiss, citing tribal sovereign authority. The Superior Court, Judicial District of New London, Cole-Chu, J., granted the motion to dismiss. Landowner appealed.
* Holdings: The Appellate Court, Lavine, J., held that:
1) bill of discovery was barred by tribal sovereign immunity, and
2) tribal historical preservation officers were entitled to tribal sovereign immunity.
Affirmed.
*Synopsis: In child protection proceedings, the District Court, Second Judicial District, Butte/Silver Bow County, Nos. DN-15-75-BN and DN-15-76-BN, Brad Newman, J., terminated mother's parental rights with respect to two children. Mother appealed, and appeals were consolidated.
* Holdings: The Supreme Court, Gustafson, J., held that:
1) Department of Public Health and Human Services failed to meet burden under the Indian Child Welfare Act (ICWA) to actively investigate further and make formal inquiry with tribe for conclusive determination of children's tribal membership eligibility prior to terminating mother's rights to children, and;
2) evidence was sufficient to support finding that mother's condition was unlikely to change within reasonable time, as required to terminate her parental rights after children were adjudicated youth in need of care.
*Synopsis: County department of social services filed a petition alleging child was a neglected and dependent juvenile. The District Court, Mecklenburg County, No. 16 JA 151, Ty Hands, J., adjudicated child to be a neglected and dependent juvenile. Mother appealed. The Court of Appeals, Tyson, J., 800 S.E.2d 77, vacated due to lack of standing. Following petition for discretionary review, the Supreme Court, Beasley, J., 812 S.E.2d 840, reversed and remanded for resolution of remaining issues.
*Holdings: The Court of Appeals Tyson, J., held that evidence, including a form indicating that child and her mother had American Indian heritage within two specified tribes, triggered court's obligation to direct county youth and family services to send a notification letter to the tribes.
Remanded
*Synopsis: Defendant was charged with possession of methamphetamine. The District Court of the First Judicial District, Kootenai County, Cynthia K.C. Meyer, J., granted defendant's motion to dismiss based on jurisdiction. State appealed.
*Holdings: The Supreme Court, Burdick, C.J., held that as a matter of first impression, defendant was an Indian, and thus district court lacked jurisdiction over defendant.
Affirmed.
Legal Topics: Official Tribal Government
*Synopsis: Father was found in contempt for failing to pay child support for Indian child, and sentenced to ten days in jail unless he purged the contempt by making payments of no less than $606 per month. A warrant of attachment was subsequently issued for father's arrest, and he moved to dismiss the State court proceeding for lack of jurisdiction and to enjoin the State from withholding, restricting, or suspending his driver's license. The District Court, Rolette County, Northeast Judicial District, Anthony S. Benson, J., denied the motion to dismiss, and ruled it had concurrent jurisdiction with the tribal court over father's child support obligation. Father appealed.
*Holdings: The Supreme Court, McEvers, J., held that District Court's exercise of jurisdiction over child support proceeding did not infringe on tribes' right of self-government.
Affirmed.
*Synopsis: Defendant, a non-enrolled member of any federally recognized Indian tribe but a first descendant of an enrolled member of a recognized tribe, was convicted in the Superior Court, Jackson County, Nos. 12 CRS 51720, 1362-63, Bradley B. Letts, J., of armed robbery, first-degree murder, and firearm possession by a felon. Defendant appealed.
*Holdings: The Court of Appeals, Elmore, J., held that:
1) as a matter of first impression, when determining whether a person is recognized as an Indian by a tribe or the federal government or both for purposes of exercising tribal criminal jurisdiction under the Indian Major Crimes Act (IMCA), a person's status as a firstdescendant of an enrolled member of a recognized tribe is a factor to be considered along with balancing multiple factors; a person's status as a first descendant is not dispositive;
2) defendant's status as a first descendant of an enrolled member of a recognized tribe did not sufficiently show defendant was a member of a federally recognized tribe;
3) defendant did not sufficiently show that he had been recognized as a tribal member by the government through receipt of assistance available only to tribal members, or was eligible to become members, of federally recognized tribes;
4) defendant did not sufficiently show that he had enjoyed the benefits of affiliation with a federally recognized tribe;
5) defendant did not sufficiently show that he was socially recognized as someone affiliated with a federally recognized tribe;
6) evidence did not support issuance of a special instruction on the issue of defendant's Indian status as it related to state criminal jurisdiction; and
7) defendant's question about whether he could consult with a lawyer was not a request for counsel, and thus officers were not required to cease questioning
No error in part, dismissed in part, remanded in part.
*Synopsis: Tribal retailer and its owner brought action against state Attorney General and state tax commissioner, seeking declaration that requirement that they pre-pay amount of tax to be assessed on sale of cigarettes to non–Indians violated Indian Law and treaties between Seneca Nation and United States, and sought preliminary injunction enjoining enforcement of Tax Law. The Supreme Court, Cattaraugus County, Jeremiah J. Moriarty, III, J., granted defendants' cross motion to dismiss, and plaintiffs appealed. The Supreme Court, Appellate Division, 140 A.D.3d 1636, 33 N.Y.S.3d 614, affirmed as modified, reinstating complaint for declaratory relief but concluding plaintiffs were not entitled to such relief. Plaintiffs were granted leave to appeal.
*Holdings: The Court of Appeals, Garcia, J., held that:
1) prepayment scheme did not constitute a tax, and thus did not violate federal law, and
2) since prepayment scheme was not a tax, it did not violate Buffalo Creek Treaty of 1842, or state statute derived therefrom.
Affirmed.
Related News Stories: NY top court: Tax on Indian-reservation cigarettes is legal (Newsday) 6/7/18
*Synopsis: Dependency proceeding was initiated regarding child born with amphetamine and methamphetamine in her system at birth. Following determination that Indian Child Welfare Act (ICWA) did not apply to child's presumed father or biological father, the Superior Court, San Diego County, No. J519280, Kimberlee Lagotta, J., terminated mother's parental rights to child. Mother and presumed father appealed.
*Holdings: The Court of Appeal, Irion, Acting P.J., held that:
1) record demonstrated ICWA did not apply based on biological father's initial claim of Native American heritage;
2) as an issue of apparent first impression, presumed father's claim of Native American heritage was insufficient to trigger ICWA notice requirements; and
3) record supported finding that mother was not entitled to parent-child relationship exception to adoption to preclude termination of parental rights.
Affirmed.
*Synopsis: Foster parents petitioned to adopt children, whose biological father was member of Indian tribe, after father signed consent to termination of his parental rights. Father intervened and moved to withdraw his consent to termination of his parental rights. The Macomb Circuit Court, No. 2012-000291-NA, denied father's motion, and the Oakland Circuit Court, No. 2015-837756-AM, denied foster parents' adoption petitions. Foster parents and father appealed. The Court of Appeals, 320 Mich.App. 88, 902 N.W.2d 901, affirmed in part, reversed in part, vacated in part, and remanded. Father applied for leave to appeal, which application was granted, 501 Mich. 870, 901 N.W.2d 856.
*Holdings: The Supreme Court, McCormack, J., held that:
1) specific adoptive placement was not required for father's consent to termination of his parental rights to be valid;
2) father was not required to have executed any additional consent in order to be statutorily-entitled, under the Michigan Indian Family Preservation Act (MIFPA), to withdraw his consent to termination of his parental rights; and
3) father's status as participant in child protection proceeding did not preclude father from benefiting from consent-withdrawal provision of the Michigan Indian Family Preservation Act (MIFPA).
Reversed and Remanded.
Related News Stories: Michigan court backs dad on parental rights, cites Indian child welfare law (Detroit Free Press) 5/18/18
*Synopsis: Department of Human Services (DHS) initiated dependency and neglect proceedings against mother and two fathers of mother's children. DHS subsequently filed petition to terminate their parental rights. The District Court, Weld County, Elizabeth B. Strobel, J., terminated parental rights, and each parent appealed.
*Holdings: The Court of Appeals held that under Indian Child Welfare Act (ICWA), accompanying regulation, and Colorado law, trial court was required to send notice to Bureau of Indian Affairs (BIA) of proceeding informing BIA that child might be Indian child from unknown tribe in Arkansas.
Remanded with instructions.
*Synopsis: Petition was filed to terminate parental rights of Indian mother and non-Indian father. The District Court, Clay County, granted petition, and mother and father appealed. The Court of Appeals, 2017 WL 2062137, reversed in part and remanded for additional finding as to whether parents' continued custody of children was likely to result in serious emotional or physical damage to children. On remand, the District Court issued one-sentence addendum to original judgment to make that finding, and mother and father appealed. The Court of Appeals, 2017 WL 6273152, affirmed. Parents' petition for review was granted.
*Holdings: The Supreme Court, Lillehaug, J., held that:
1) as matter of first impression, determination that parent's continued custody of Indian child was likely to result in serious emotional or physical damage to child, as prerequisite totermination of parental rights, had to be supported by qualified expert testimony;
2) evidence supported determination that mother's continued custody of children was likely to result in serious physical or emotional damage to children; and
3) evidence was insufficient to support determination that non-Indian father's continued custody of Indian children was likely to result in serious physical or emotional damage to children.
Affirmed in part and reversed in part.
*Synopsis: Department of Social and Health Services petitioned to terminate mother's parental rights to her children. The Superior Court, King County, No. 14-7-02779-4, Theresa B. Doyle, J., terminated parental rights. Mother appealed.
*Holdings: The Court of Appeals, Schindler, J., held that:
1) termination of parental rights statutes were narrowly drawn to achieve the compelling interest of the State to prevent harm to children, and thus, statutes did not violate substantive due process or interfere with the fundamental rights of parents to the care and custody of their children;
2) termination of parental rights statutes were not unconstitutional as applied to mother;
3) substantial evidence supported trial court's finding that Department offered or provided all reasonably available services capable of correcting mother's parental deficiency of drug addiction within the foreseeable future
4) trial court's decision to terminate mother's parental rights rested on mother's severe drug addiction, not on her deficient parenting skills or failure to participate in unrelated treatment services, and thus, Department did not violate mother's due process rights by failing to notify mother in termination petition that her lack of parenting skills and failure to participate in services would constitute grounds for terminating her parental rights;
5) substantial evidence supported trial court's finding that mother's drug addiction rendered her currently unfit to parent her children; and
6) termination of mother's parental rights to her two children was in the best interests of the children.
Affirmed.
*Synopsis: Department of Human Services (DHS) filed a petition to terminate the parental rights of the parents of two children. The Circuit Court, Washington County, No. 72JV16-904, Stacey Zimmerman, J., entered an order terminating parental rights. Mother appealed.
*Holdings: The Court of Appeals, Kenneth S. Hixson, J., held that evidence was sufficient to support termination of mother's parental rights on subsequent-factors grounds due to mother's continued use of illegal drugs and alcohol.
Affirmed.
*Synopsis: Department of human services petitioned to terminate father's parental rights as to his two children, arising from allegations of sexual abuse to one of his children. Father was acquitted of sex-abuse allegations in companion criminal case. The District Court, Larimer County, No. 15JV143, Stephen E. Howard, J., terminated father's parental rights. Father appealed.
*Holdings: The Court of Appeals, Furman, J., held that:
1) record did not support termination on basis of father's inability to address his children's perceptions of sexual abuse, and
2) record did not support termination on basis of father's failure to address his children's trauma from possible issues other than the alleged sexual abuse.
Reversed and remanded.
*Synopsis: Mother appealed from decision of the District Court, Mesa County, Valerie J. Robison, J., finding that child was dependent and neglected.
*Holdings: The Court of Appeals, Casebolt, J., held that:
1) doctor's testimony, that test on premature child's umbilical cord revealed a positive methamphetamine result, was admissible under medical treatment hearsay exception;
2) dependency and neglect proceeding involving child, whose mother had Native American heritage, was subject to Indian Child Welfare Act (ICWA); and
3) case would be remanded to the trial court for the purpose of conducting a proper inquiry under ICWA to determine if child was an Indian child.
Affirmed in part, reversed in part, and remanded.
*Synopsis: The Department of Human Services filed petition to terminate mother's parental rights. The District Court, Blaine County, Mark A. Moore, J., terminated mother's rights and denied her motion for new trial that alleged that Indian Child Welfare Act (ICWA) applied to proceedings. Mother appealed.
*Holdings: The Court of Civil Appeals, Jane P. Wiseman, P.J., held that involvement of Indian children required application of ICWA to proceedings to terminate mother's parental rights.
Reversed and remanded.
*Synopsis: Non-member Native American motorist petitioned for review of Department of Transportation's revocation of his driver's license arising out of his refusal to take breath test following arrest for driving under influence (DUI) within boundaries of reservation. The South Central Judicial District Court, Morton County, Richard L. Hagar, J., affirmed revocation, and motorist appealed.
*Holdings: The Supreme Court, Jon J. Jensen, J., held that:
1) county sheriff's deputy lacked authority to arrest non-member Native American motorist for DUI within boundaries of reservation, as prerequisite to revocation of motorist's driver's license;
2) statute providing that peace officers within state may provide aid and assistance to foreign law enforcement agencies or officers when asked did not confer deputy with authority to arrest motorist within boundaries of reservation;
3) deputy lacked authority to arrest motorist within reservation absent showing of cross-deputization or other cooperative agreement between county and tribe; and
4) deputy lacked authority to make citizen's arrest of motorist within reservation
Reversed.
*Synopsis: Employee of Indian tribe's casino filed a workers' compensation complaint against casino and its workers' compensation insurer. Following dismissal by a workers' compensation judge on the grounds of sovereign immunity, employee appealed.
*Holdings: The Court of Appeals, Vigil, J., held that:
1) Indian Gaming Compact set forth an express and unequivocal waiver of sovereign immunity;
2) even if Indian Gaming Compact did not contain an express waiver of sovereign immunity, employee had a right to pursue her workers' compensation claim against insurer and its third-party administrator;
3) even if casino was determined to enjoy tribal sovereign immunity in the context of a workers' compensation claim, casino was not an indispensable party without which casino employee's claim could not go forward; and
4) employee was a third-party beneficiary to casino's workers' compensation insurance policy.
Reversed and remanded.
Legal Topics: Indian Child Welfare Act - Transfer to Tribal Court
*Synopsis: In child protection proceeding, the District Court, Eighth Judicial District, Cascade County, John A. Kutzman, J., terminated mother's parental rights. Mother appealed.
*Holdings: The Supreme Court, Sandefur, J., held that:
1) Department of Health and Human Services could not passively rely on inaction of Indian tribe to satisfy burden under Indian Child Welfare Act (ICWA) to actively investigate and ultimately make formal inquiry with tribe for conclusive determination of child's tribal membership eligibility, and
2) trial court could not rely on mother's stipulation or acquiescence that the Indian Child Welfare Act (ICWA) did not apply to child to satisfy its threshold duty to obtain conclusive determination from Indian tribe of child's tribal eligibility.
Reversed and remanded.
*Synopsis: Defendant was convicted in the Superior Court, Yakima County, Richard H. Bartheld, J., of assault of law enforcement officer, arising out of assault of jail officer while transporting defendant to hospital on deeded (fee) land within boundaries of reservation. Defendant appealed.
*Holdings: As matter of first impression, the Court of Appeals, Korsmo, J., held that State had jurisdiction to prosecute defendant, who was not enrolled member of tribe, for crime that occurred on fee land within boundaries of reservation.
Affirmed.
*Synopsis: Office of Children's Services (OCS) petitioned for removal of Indian child from parents' custody. The Superior Court, Fourth Judicial District, Bethel, No. 4SM-14-00002 CN, Dwayne W. McConnell, J., ordered child removed from her parents' home. Parents appealed. The Supreme Court remanded for additional findings. Following remand, the Superior Court, McConnell, J., issued ordering clarifying its removal findings. Parents appealed.
*Holdings: The Supreme Court, Carney, J., held that information from status hearings, including unsworn statements made by OCS workers, could not be used by trial court to support its order authorizing removal of Indian child from parents' custody.
Vacated and remanded.
*Synopsis: County department of human services sought to terminate mother's parent-child legal relationship with her child who had possible Indian heritage. The District Court, Jefferson County, No. 15JV650, Ann Gail Meinster, J., determined that Indian Child Welfare Act (ICWA) did not apply and terminated mother's parental rights. Mother appealed.
*Holdings: The Court of Appeals held that trial court was required to notify Indian tribes historically affiliated with tribe mother asserted her biological brother belonged to.
Remanded with instructions.
*Synopsis: Dependency proceeding was initiated by county department of public social services regarding three children. The Superior Court, Riverside County, No. SWJ1600319, Judith C. Clark, J., determined that Indian Child Welfare Act (ICWA) did not apply and subsequently terminated mother's parental rights to children.
*Holdings: The Court of Appeal, McKinster Acting P.J., held that department failed to demonstrate that it complied with investigatory requirements for determining children's possible Indian heritage.
Conditionally reversed with directions.
*Synopsis: Indian tribe brought an action against city, alleging public nuisance after city moved forward with sale of reclaimed wastewater to ski resort. City filed a third-party indemnification claim against ski resort. The Superior Court, Coconino County, No. S0300CV201100701, Mark R. Moran, J., denied tribe's motion to amend its complaint to add ski resort as a defendant and to add a claim for injunction against ski resort's artificial snowmaking, and granted ski resort's motion to dismiss. Tribe appealed.
*Holdings: The Court of Appeals, Jones, J., held that tribe sufficiently alleged special injury.
Reversed in part, vacated in part, and remanded.
Related News Stories: Arizona Supreme Court to review ruling in ski resort dispute (mySA) 5/9/18, Attorneys warn Snowbowl they could open the door to a flood of litigation (Payson Roundup) 4/9/18, Hopi suit over ski resort's wastewater snow revived (Courthouse News) 2/8/18
*Synopsis: Human Services Agency (HSA) brought dependency action against mother to terminate her parental rights to Indian child and select adoption as permanent plan. The Superior Court, Ventura County, No. J070951, Tari L. Cody, J., terminated mother's parental rights and found child was adoptable to non-Indian parents notwithstanding placement preferences under Indian Child Welfare Act (ICWA). Mother appealed.
*Holdings: The Court of Appeal, Perren, J., held that:
1) disentitlement doctrine did not preclude appeal;
2) trial court had good cause to depart from ICWA's placement preferences;
3) mother's proffered additional evidence was inadmissible.
Affirmed
*Synopsis: County department of human services sought to terminate mother's parental rights to children. The District Court, Alamosa County, No. 15JV114, Martin A. Gonzalez, J., entered order terminating mother's parental rights. Mother appealed.
*Holdings: The Court of Appeals held that department failed to comply with noticerequirements under Indian Child Welfare Act (ICWA), and thus record on appeal did not support the trial court's finding that ICWA did not apply.
Related News Stories: Colorado Court of Appeals: Written advisement form does not satisfy ICWA notice requirements. (CBA CLE Legal Connection) 2/6/18.
*Synopsis: State petitioned to terminate parental rights of father of minor children of Native American descent, alleging father, who resided in Kansas, failed to correct conditions which led to minor children's deprived status after he pled no contest to domestic battery for spanking one child who suffered significant bruising. The District Court, Pottawatomie County, Dawson R. Engle, J., terminated father's parental rights. Father appealed, raising issues under state and federal Indian Child Welfare Act (ICWA).
*Holdings: The Court of Civil Appeals, Jerry L. Goodman, J., held that:
1) expert was qualified to testify regarding placement of minor children, and
2) expert testimony was insufficient to support required finding under ICWA that continued custody of children with father was likely to result in serious emotional or physical damage
Reversed.
*Synopsis: After amended dependency petition was sustained, the Superior Court, Los Angeles County, No. CK95071, Daniel Zeke Zeidler, J., terminated father's parental rights to two children. Father appealed.
*Holdings: The Court of Appeal, Perluss, P.J., held that:
1) trial court acted within its discretion in denying continuance of permanency hearing;
2) evidence was sufficient to support finding that any interference with children's relationship with their siblings did not outweigh benefits of permanency through adoption, supporting termination of father's rights; and
3)county department of children and family services failed to adequately investigate mother's claim of Indian ancestry, before determining that Indian Child Welfare Act (ICWA) did not apply to case.
Conditionally affirmed and remanded.
January | February | March | April | May | June | July | August | September | October | November | December
Visit the Archives for the Indian Law Bulletins to see cases from previous years.
Indian Law Bulletins are a current awareness service of the National Indian Law Library. The purpose of the Indian Law Bulletins is to provide succinct and timely information about new developments in Indian Law. See the About page for more information.
A note about links used in this document
Blue links on this page go to information available for free on the Internet. Green links go to information available on Westlaw which require a Westlaw account. The library is not affiliated with Thomson Reuters or Westlaw.
* Synopsis and holding provided under an agreement with Westlaw.
