Last updated: January 3, 2019
Legal Topics: Indian Mascots
Legal Topics: Jurisdiction; Cross-Deputization Agreement
Legal Topics: Treaty Fishing
Legal Topics: Attorney Discipline
Legal Topics: Criminal Restitution
*Synopsis: Department of Public Health and Human Services petitioned to terminate father’s parental rights to an Indian child. The District Court of the Eighth Judicial District, County of Cascade, Elizabeth A. Best, J., terminated parental rights. Father appealed.
*Holdings: The Supreme Court, Gustafson, J., held that Department did not engage in active efforts under the Indian Child Welfare Act (ICWA) to provide remedial services and rehabilitative programs to prevent breakup of family before seeking to terminate parental rights. Reversed and remanded.
Legal Topics: Tribal Leadership
Legal Topics: Indian Child Welfare Act
Legal Topics: Indian Child Welfare Act
Legal Topics: ICWA; UCCJEA; Jurisdiction
Legal Topics: Public Law 280
Legal Topics: Indian Child Welfare Act
Legal Topics:
Jurisdiction
Legal Topics: Indian Water Rights
Legal Topics: Indian Child Welfare Act
Legal Topics: Indian Child Welfare Act
Legal Topics: Tribal Jurisdiction; Law Enforcement
Legal Topics: Keystone XL Pipeline
*Synopsis: Indian tribe moved for attorney fees pursuant to the offer of judgment statute after obtaining dismissal, based on sovereign immunity, of its former attorneys' malicious prosecution action against it upon remand from a prior appeal, 227 So.3d 656. The Circuit Court, Miami-Dade County, Beatrice Butchko, J., denied motion. Tribe appealed.
*Holdings: On rehearing, the District Court of Appeal, Logue, J., held that:
1) Tribe's nominal offers of judgement did not indicate bad faith, and
2) Dismissal of action for lack of jurisdiction consituted a "final adjudication on the merits," and thus, qualified as a basis for an award of attorney fees under offer of judgment statute.
Reversed and remanded.
Legal Topics: Indian Child Welfare Act
Legal Topics: Indian Child Welfare Act
*Synopsis: Personal representative of duplex resident's estate filed action against duplex's propane supplier, alleging negligence, strict liability, and breach of warranty after resident was killed in explosion. Supplier filed third-party complaint against tribal housing authority and individual tribal members, alleging they caused explosion by failing to cap one or more propane lines. The Circuit Court, Oglala Lakota County, Jeffrey R. Connolly, J., granted motion to dismiss filed by authority and tribal members. Supplier appealed.
*Holdings: The Supreme Court, Kern, J., held that:
1) Circuit court lacked subject matter jurisdiction over supplier's third-party claims, and
2) Circuit court properly declined to grant additional discovery on sovereign immunity.
Affirmed.
Legal Topics: Indian Child Welfare Act - Application of
*Synopsis: Former chief of police for tribal police department, who had pleaded guilty to conspiracy to defraud the United States by dishonest means, brought action against city seeking declaration that he was not disqualified from serving on city council under state constitutional provision disqualifying persons convicted of certain felonies from public office. The Circuit Court, Mackinac County, William W. Carmody, J., denied former chief's motion for summary disposition and dismissed case. Former chief appealed. The Court of Appeals, 321 Mich.App. 673, 909 N.W.2d 884, affirmed. Former chief appealed.
*Holdings: The Supreme Court, Bernstein, J., held:
1) That a federally recognized Indian tribe is not “local government” under state constitutional provision disqualifying persons convicted of certain felonies from public office.
Reversed and remanded.
Markman, J., filed a dissenting opinion.
*Synopsis: Actions were brought to terminate Indian parents' parental rights. The Superior Court, Third Judicial District, Palmer, Kari Kristiansen, J., and Third Judicial District, Anchorage, Andrew Peterson, J., terminated parental rights in two cases, and parents appealed.
*Holdings: The Supreme Court held that:
1) Tribal elderm while clearly qualified to testify to tribal cultural standards and childrearing norms, was unqualified to speak to the likelihood of harm to the child if returned to the parent's custody, and
2) Expert in Indian Child Welfare Act (ICWA) compliance was unqualified to speak to the likelihood of harm to the child if returned to the parent's custody.
Reversed and remanded.
Legal Topics: Sentencing
Legal Topics: Indian Child Welfare Act - Active Efforts
Legal Topics: Indian Child Welfare Act - Transfer to Tribal Court
Legal Topics: Indian Child Welfare Act - Application of
Legal Topics: Criminal Jurisdiction; Arrest
Legal Topics: Indian Child Welfare Act - Notice
Legal Topics: Indian Child Welfare Act - Expert Witnesses
*Synopsis: After child, a member of a Native American tribe, was removed from biological mother's care by Department of Child Safety, mother moved to appoint child's foster placement, who was not affiliated with child's family or tribe or any Native American organization, as child's permanent guardian, and tribe indicated that mother or Department would need to provide expert witness to testify regarding child's placement, as required by Indian Child Welfare Act. The Superior Court, Maricopa County, Arthur T. Anderson, J., without hearing testimony from qualified expert witness, found good cause to place child in non-ICWA-preferred placement, and appointed child's foster placement as her permanent guardian. Tribe appealed.
*Holdings: The Court of Appeals, Howe, J., held that:
1) provision of ICWA prohibiting courts from placing children who are members of tribes into foster placement without first hearing expert testimony applied, and
2) mother's proposed expert witness was not qualified.
Vacated and remanded.
*Synopsis: In child protection proceeding involving child who was an Indian child under the Indian Child Welfare Act (ICWA), the Circuit Court, Seventh Judicial Circuit, Pennington County, Matthew M. Brown, J., granted tribe's motion to transfer jurisdiction to tribal court. Counsel for child petitioned for permission to take intermediate appeal, which petition was granted.
*Holdings: The Supreme Court, Salter, J., held that evidentiary hearing was required prior to denial of motion to transfer proceeding to tribal court.
Reversed and remanded.
Related News Stories: Supreme Court nixes transfer of child abuse and neglect case to tribal court (Rapid City Journal) 4/24/19
*Synopsis: Following extensive litigation in child custody action, 2018 WY 110, 426 P.3d 830, father, an Indian tribe member who kept child on reservation, filed motion to establish jurisdiction in tribal court and motion for change of venue, seeking an order relinquishing permanent child custody jurisdiction to the tribal court. Mother, who was not a member of the tribe and who had been awarded primary custody of child, filed motion to strike. The District Court, Sheridan County, Norman E. Young, J., granted mother's motion, and father appealed.
*Holdings: The Supreme Court, Kautz, J., held that:
1) Indian Child Welfare Act (ICWA) did not apply, and
2) even assuming ICWA applied, tribal court's emergency orders under Parental Kidnapping Prevention Act (PKPA) did not give tribal court jurisdiction to make permanent custody decisions.
Affirmed.
Legal Topics: Indian Child Welfare Act - Notice
*Synopsis: Defendant was convicted in the Superior Court, Second Judicial District, Kotzebue, Timothy Dooley, J., of attempted murder, first-degree assault, first-degree robbery, and third-degree assault. Defendant appealed.
*Holdings: The Court of Appeals, Mannheimer, C.J., held that:
1) administrative rule did not abridge a constitutional right, and
2) defendant was entitled to evidentiary hearing.
Affirmed in part and remanded.
*Synopsis: Father appealed judgment of the Circuit Court, Linn County, 17JU10855, Daniel R. Murphy, J., establishing juvenile court's jurisdiction over daughter.
*Holdings: The Court of Appeals held that Department of Human Services (DHS) failed to provide notice to father of pending involuntary child custody proceeding, as required by Indian Child Welfare Act (ICWA), and therefore juvenile court erred in assuming jurisdiction over daughter.
Reversed.
*Synopsis: Former chief executive officer (CEO) of Native American tribe's casino brought action against tribe's gaming commission, alleging commission violated terms of a settlement agreement by refusing to rescind revocation of former CEO's gaming license. The Superior Court, King County, No. 17-2-01853-8, Jeffrey M. Ramsdell, J., dismissed action. Former CEO appealed.
*Holdings: The Court of Appeals, Leach, J., held that:
1) any waiver by tribe of its own sovereign immunity, without more, did not also necessarily waive commission's sovereign immunity in matters falling within exclusive purview of commission, and
2) settlement agreement executed between tribe and former CEO, waiving tribe's sovereign immunity for purposes of resolving any dispute arising under agreement, did not constitute waiver of immunity of commission.
Affirmed.
Related News Stories: Snoqualmie Tribe celebrates 'Land into Trust' decision (Snoqualmie Valley Record) 2/25/19
*Synopsis: State brought enforcement action against owner of tobacco smokeshop, who was a member of Native American tribe, alleging violation of Unfair Competition Law (UCL). The Superior Court, Humboldt County, No. DR110232, W. Bruce Watson, J., granted summary adjudication to State and entered permanent injunction. Owner appealed.
*Holdings: The Court of Appeal, Streeter, Acting P.J., held that:
1) exercise of state court jurisdiction over enforcement action did not infringe tribal sovereignty, supporting application of default rule of existence of general jurisdiction on part of state court, and
2) State's enforcement of UCL was not preempted under doctrine of Indian preemption.
Affirmed.
*Synopsis: Department of Public Health and Human Services petitioned to terminate mother's parental rights to children. The District Court, Silver Bow County, Brad Newman, J., terminated rights. Mother appealed, arguing that District Court had possessed reason to know that children could have been eligible for tribal enrollment so as to trigger Indian Child Welfare Act's (ICWA) tribal notice and enrollment eligibility determination requirements, yet District Court had failed to observe requirements.
*Holdings: The Supreme Court, Dirk Sandefur, J., held that:
1) the District Court had possessed reason to know that children could have been eligible for tribal enrollment, triggering ICWA requirements, but
2) the District Court's failures to comply with ICWA had been harmless.
Affirmed.
*Synopsis: Father appealed order of 446th District Court, Ector County, terminating his parental rights to Indian child.
*Holdings: The Court of Appeals, Jim R. Wright, Senior Chief Justice, held that trial court was able to determine that Indian tribe's representative was qualified as an expert witness.
Affirmed.
*Synopsis: State filed an adjudication petition alleging that mother was unable to meet child’s basic needs for care and protection, mother used inappropriate discipline, and mother’s mental-health issues put child at risk of abuse and/or neglect. The County Court, Scotts Bluff County, James M. Worden, J., entered an order placing temporary custody of child with Nebraska’s Department of Health and Human Services. State then filed motion to terminate mother's parental rights. The County Court granted the motion. Mother appealed.
*Holdings: The Court of Appeals, Welch, J., held that:
1) there was clear and convincing evidence that child had been in an out-of-home placement for 15 or more months of the most recent 22 months, as statutory ground for termination of mother's parental rights;
2) opinion testimony from qualified expert supported finding that continued custody by mother was likely to result in serious emotional or physical damage to child;
3) evidence showed that termination of mother's parental rights was in child's best interests; and
4) evidence established that tribe in which child was enrolled was given proper notice of proceedings.
Affirmed.
*Synopsis: County department of family and children's services filed juvenile dependency petition on behalf of nine-year-old child who may have Native Alaskan ancestry. The Superior Court, Santa Clara County, No. 17JD024833, Michael L. Clark, J., found sufficient notice was sent, pursuant to the Indian Child Welfare Act (ICWA), to Athabascan Indian tribe in Alaska before declaring child dependent. The court subsequently issued restraining order protecting child from mother, and mother was later found to have violated restraining order by possessing or having access to handgun. Mother appealed to challenge the ICWA notice.
*Holdings: The Court of Appeal, Grover, J., held that mother's challenge to ICWA notice was untimely.
Appeal dismissed.
Legal Topics: Attorneys' Fees
In re Interest of Mercedes L.
26 Neb.App. 737
Nos. A-17-1281 through A-17-1286.
Court of Appeals of Nebraska
January 15, 2019
*Synopsis: In child protection proceedings, the County Court, Platte County, Frank J. Skorupa, J., approved a change in permanency objective for mother and each of her six minor children from reunification to guardianship. Mother appealed, and appeals were consolidated.
*Holdings: The Court of Appeals held that:
1) orders issued by juvenile court approving change in permanency objective affected mother's substantial rights and, thus, were final appealable orders;
2) changing permanency objective for mother and each of her six minor children from reunification with concurrent plan for guardianship to guardianship only was in children's best interests; and
3) State made adequate active efforts prior to seeking change in permanency objective with respect to Indian children.
Affirmed in part and vacated in part.
*Synopsis: The Department of Health and Human Services filed a child-protection petition alleging neglect by both the mother and the father of several children who were living with mother in an Indian reservation. The Department then requested a preliminary protection order, seeking custody of the children. The Calais District Court, D. Mitchell, J., allowed the Department to seek foster placement. Following Department's removal of the children from their mother's care, tribe filed motion to intervene. The District Court denied the motion. Tribe appealed.
*Holdings: The Supreme Judicial Court, Jabar, J., held that:
1) removal of children from mother's custody was not impermissible state regulation of the internal tribal matter of who had the right to reside within Indian territories, and
2) tribe's participation in child-custody case was not necessary to protect the tribe's sovereign power to decide who could and could not reside within its territory.
Affirmed.
*Synopsis: In child protection proceeding involving children deemed to be Indian children under the Indian Child Welfare Act (ICWA), parents and Indian tribe moved to transfer jurisdiction of matter to Tribal Court. The Portland District Court, Powers, J., denied the motions. Parents appealed.
*Holdings: The Supreme Judicial Court, Gorman, J., held that trial court had “good cause,” within meaning of ICWA, not to transfer matter to Tribal Court.
Affirmed.
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