Subjects: Parent and child (Law); Trials (Custody of children) -- Nevada; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Indian children -- Defined; Central Council of the Tlingit & Haida Indian Tribes.
*Synopsis: After petition to adopt child was granted, tribal council sought to intervene and invalidate adoption. The Third Judicial District Court, Churchill County, Archie E. Blake, J., vacated the adoption. Adoptive father appealed.
*Holding: The Supreme Court, Becker, J.,
held that:
(1) trial court possessed jurisdiction to consider tribal council's
motion to intervene and to invalidate adoption of child;
(2) voluntary dismissal was ineffective as to mother and tribal
council;
(3) affidavit of tribal council's enrollment officer was admissible
to establish that child was a Native American child and was subject
to the Indian Child Welfare Act (ICWA);
(4) tribal council had independent standing to contest adoption
of Indian child; and
(5) adoptive father was entitled to an opportunity to challenge
enrollment officer's authority to attest to mother and child's status
with tribe.
Subjects: Parent and child (Law); Trials (Custody of children) -- Oregon; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- Oregon.
*Synopsis: In proceedings to terminate parental rights, the Circuit Court, Douglas County, Joan G. Seitz, J., entered an order finding that mother and father were unfit and terminated their parental rights. Parents appealed.
*Holding: The Court of Appeals, Ortega,
J., held that:
(1) mother's mental illness and addiction to controlled substances
rendered her unfit, and
(2) termination was in child's best interests.
Affirmed.
Subjects: Agua Caliente Band of Cahuilla Indians of the Agua Caliente Indian Reservation, California; California. Fair Political Practices Commission; California. Political Reform Act of 1974; Campaign funds; Jurisdiction -- California; Sovereign immunity -- Agua Caliente Band of Cahuilla Indians of the Agua Caliente Indian Reservation, California; United States. Constitution. 10th Amendment.
*Synopsis: Fair Political Practices Commission (FPPC) sued an Indian tribe to force it to comply with reporting requirements for campaign contributions contained in the Political Reform Act (PRA). The tribe filed a motion to quash service of summons for lack of personal jurisdiction, on the ground that it was immune from suit under the doctrine of tribal sovereign immunity. The Superior Court, Sacramento County, No. 02AS04545, Loren E. McMaster, J., denied the tribe's motion. The tribe filed a petition for writ of mandate, and the Court of Appeal denied the petition. The California Supreme Court granted the tribe's petition for review and transferred the matter to the Court of Appeal. The Court of Appeal denied the petition, and the Supreme Court again granted the tribe's petition for review, superseding the opinion of the Court of Appeal.
*Holding: The Supreme Court, Chin, J.,
held that:
(1) Tenth Amendment and the republican government guarantee clause
provided FPPC authority to bring suit against the tribe to enforce
PRA, and thus tribal sovereign immunity did not apply, and
(2) alternatives to enforcing PRA were inadequate to protect the
state's rights.
Judgment of Court of Appeal affirmed and matter remanded.
Related News Stories: Court rulings question sovereign immunity. (MSNBC) 1/2/07.
Subjects: Parent and child (Law); Trials (Custody of children) -- New York (State); Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Visitation rights (Domestic relations).
*Synopsis: Father petitioned for visitation. The Family Court, Suffolk County, Lynaugh, J., granted the petition, and mother appealed.
*Holding: The Supreme Court, Appellate
Division, held that:
(1) visitation granted to the father would not be detrimental to
the welfare of the child, and
(2) Indian Child Welfare Act did not apply.
Affirmed.
Subjects: Curyung Tribal Council (formerly Native Village of Dillingham) (AK); Kwinhagak (aka Quinhagak), Native Village of (AK); Chevak Native Village (AK); Parent and child (Law); Trials (Custody of children) -- Alaska; Indian children -- Legal status, laws, etc.; Alaska Native children -- Legal status, laws, etc.; Child welfare -- Alaska; United States. Indian Child Welfare Act of 1978; Jurisdiction -- Indian Country (U.S.); Tribes -- Alaska; Alaska Native Villages; United States. Adoption Assistance and Child Welfare Act of 1980.
*Synopsis: Alaska native villages brought action against the State and the Director of the Division of Family and Youth Services, alleging violations of the Adoption Assistance Act and the Indian Child Welfare Act. The Superior Court, Third Judicial District, Dillingham County, John Reese, J., dismissed some of villages' claims, but denied State's motion to dismiss all claims. State petitioned for interlocutory review.
*Holding: Upon granting review, the Supreme
Court, Bryner, C.J., held that:
(1) villages were entitled to bring suit as parens patriae under
§ 1983 to enforce the rights created by the Adoption Assistance
Act and the Indian Child Welfare Act;
(2) villages were precluded from bringing claims on their own behalf
under § 1983 to enforce tribal notification provisions of the
Adoption Assistance Act and the Indian Child Welfare Act;
(3) § 1983 did not create a cause of action against State;
(4) § 1983 claims against Director of the Division of Family
and Youth Services were not precluded by sovereign immunity;
(5) villages were entitled to enforce rights under the Adoption
Assistance Act through § 1983 action; and
(6) villages were entitled to enforce rights under Indian Child
Welfare Act through § 1983 action.
Affirmed in part, reversed in part, and remanded.
Subjects: Race discrimination -- Confederated Tribes of the Colville Reservation, Washington; Non-Indians; Sovereign immunity -- Corporations, Government -- Officials and employees -- Confederated Tribes of the Colville Reservation, Washington; Colville Tribal Enterprise Corporation; Colville Tribal Services Corporation.
*Synopsis: Non-Indian employee brought action against his supervisor and two corporate Indian entities, alleging race discrimination, racial harassment, hostile work environment, negligent supervision, and negligent infliction of emotional distress. Defendants moved to dismiss, based on lack of subject matter jurisdiction, and tribal sovereign immunity. The Superior Court, Island County, Vickie Churchill, J., granted the motion to dismiss. Employee appealed. The Court of Appeals, 127 Wash.App. 644, 111 P.3d 1244, reversed, and the Supreme Court granted review.
*Holding: The Supreme Court, Sanders,
J., held that:
(1) tribal governmental corporations conducting commercial enterprises
outside reservation were protected by tribal sovereign immunity,
and
(2) supervisor was immune as to his official capacity.
Decision of the Court of Appeals reversed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Arkansas; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Foster care placement; Kinship care; Tohono O'odham Nation of Arizona.
*Synopsis: Guardian filed a family in need of services petition (FINS) that sought a determination of custody of six children. The Circuit Court, Van Buren County, Linda P. Collier, J., granted guardian custody of four children and granted mother's cousin and her husband custody of two children. Guardian appealed.
*Holding: The Court of Appeals, Robert J. Gladwin, J., held that trial court's failure to make specific findings that there was "good cause" to disregard Indian tribe's preference for placement of two Indian children was clearly erroneous and violated the Indian Child Welfare Act (ICWA).
Reversed and remanded.
Subjects: Independent Traditional Seminole Nation; Red Bay Stronghold Foundation; Real property tax -- Florida -- Okeechobee County; Tax exemption -- Florida -- Okeechobee County.
*Synopsis: Action was brought involving tax appraisal of 2400-acre parcel of property that was leased to Native American tribe. The Circuit Court, Nineteenth Judicial Circuit, Okeechobee County, William L. Roby, J., entered final summary judgment declaring the parcel to be exempt from ad valorem taxation by county. County's property appraiser appealed.
*Holding: The District Court of Appeal,
Lewis, Terry P., Associate Judge, held that:
(1) all but 30 acres of the parcel was used exclusively for the
charitable purpose of conservation, but
(2) thirty-acre portion that was cleared for ceremonial purposes
was not used for tax-exempt purposes.
Affirmed in part, reversed in part, and remanded with directions.
Subjects: Mescalero Apache Travel Center Casino (N.M.); Liability for traffic accidents; Drinking and traffic accidents; Negligence; Casinos; Distributors (Commerce); Desert Eagle Distributing Company of New Mexico.
*Synopsis: Motorists, who were injured in automobile accident involving drunk driver who was served alcohol at Indian casino, brought negligence action against casino and alcohol distributors. The District Court, Santa Fe County, James A. Hall, D.J., dismissed claims against distributors. Motorists appealed.
*Holding: The Court of Appeals, Pickard,
J., held that:
(1) provision of state Liquor Control Act that governed hours and
days of business did not apply to casino;
(2) Act's provision stating that licensees shall be fully liable
and accountable for use of license did create duty of care;
(3) motorists' injuries were not foreseeable to distributors; and
(4) public policy did not support imposition of duty.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Colorado; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- Colorado; Notice (Law) -- United States; Citizen Potawatomi Nation, Oklahoma.
*Synopsis: Following termination of parental rights in a child dependency proceeding, an Indian tribe, which had previously been provided with notice that the proceeding had been filed, entered its formal entry of appearance and moved to intervene. Step-aunt and uncle of child also moved to intervene. The District Court, Jefferson County, No. 05JV301, Brian D. Boatright, J., denied both motions. Indian tribe and relatives appealed.
*Holding: The Court of Appeals, RomÁn,
J., held that:
(1) agency's failure to provide tribe with notice of termination
hearing required reversal of termination order under Indian Child
Welfare Act (ICWA); but
(2) relatives' intervention motion was untimely.
Affirmed in part, vacated in part, and remanded.
Subjects: Political activity -- Flandreau Santee Sioux Tribe of South Dakota -- Officials and employees; Insurance, Unemployment -- South Dakota; Freedom of speech -- Flandreau Santee Sioux Tribe of South Dakota -- Officials and employees.
*Synopsis: Claimant sought judicial review of denial, by Department of Labor, Unemployment Insurance Division, of her claim for unemployment insurance (UI) benefits. The Circuit Court, Third Judicial Circuit, Moody County, David R. Gienapp, J., affirmed. Claimant appealed.
*Holding: The Supreme Court, Meierhenry,
J., held that letter that claimant, who had been employed as education
coordinator for Indian tribe, sent to Tribal Executive Committee
did not involve matters of public concern, and thus, state's denial
of claim for unemployment insurance benefits, based on finding of
work-related misconduct, i.e., that claimant had been terminated
because letter violated tribe's policy prohibiting political activity,
did not violate protection of speech under federal and South Dakota
Constitutions.
Affirmed.
Related News Stories: High court backs ruling against ex-employee (Rapid City Journal) 12/1/2006
Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- Iowa; Evidence, Expert; Tribes -- Social life and customs.
*Synopsis: (from the opinion) A mother appeals from the termination of her parental rights to her children. She raises the following issues on appeal: (1) the State “failed to present proper proof of tribal custom by a qualified expert as required by the Indian Child Welfare Act” (ICWA) FN1 and (2) “On a de novo review of the facts and law the court of appeals should enter a finding that parental rights of appellant should not be terminated.”
*Holding: not yet available
Subjects: Parent and child (Law); Trials (Custody of children) -- Ohio; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Jurisdiction -- Transfer -- Ohio; Jurisdiction -- Native Village of Deering; Jurisdiction -- Ohio.
*Synopsis: (from the opinion) [T]he only issue for determination is whether the trial court erred in failing to transfer jurisdiction to the Deering Tribe pursuant to the Indian Child Welfare Act [ICWA].
*Holding: not yet available
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- California.
*Synopsis: Following termination of parental rights in a child dependency proceeding, the Court of Appeal issued a limited reversal and remanded the matter for compliance with the notice requirements of the Indian Child Welfare Act (ICWA), and mother filed a modification petition based on allegations of changed circumstances. The Superior Court, San Diego County, No. SJ10975C, Peter E. Riddle, J., summarily denied mother's petition. Mother appealed.
*Holding: The Court of Appeal, Nares,
Acting P.J., held that limited nature of appellate reversal and
remand precluded juvenile court's consideration of mother's petition.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- California; Notice (Law) -- United States.
*Synopsis: On petition by county health and human services agency, the Superior Court, San Diego County, No. J515-349, Hideo Chino, Juvenile Court Referee, entered judgment terminating mother's parental rights to child. Mother appealed.
*Holding: The Court of Appeal, McConnell,
P.J., held that:
(1) county agency fulfilled its continuing duty to inquire and obtain
additional family history;
(2) any irregularity in address county agency used to contact Indian
tribes was harmless; and
(3) mother was not prejudiced by any failure by county agency to
send her notice of her rights under ICWA.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Alaska Native children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Child in need of aid -- Alaska.
*Synopsis: Two children were adjudicated in the Superior Court, Fourth Judicial District, Bethel, Leonard R. Devaney, J., to be children in need of aid (CINA) after their father's wife developed alcohol abuse problem. Father appealed.
*Holding: The Supreme Court, Eastaugh,
J., held that:
(1) father's appeal was rendered moot by dismissal of case before
disposition, and
(2) public interest exception to mootness doctrine did not apply.
Order vacated and appeal dismissed.
Subjects: Paragon Casino Resort; Indian business enterprises -- Tunica-Biloxi Indian Tribe of Louisiana; Molds (Fungi); Hotels -- Design and construction -- Tunica-Biloxi Indian Tribe of Louisiana; Microbial contamination; Subcontractors.
*Synopsis: Former employees and customers of Indian tribe brought personal injury actions against tribe's insurer, and general contractor and subcontractors involved in construction of hotel for tribe, alleging they had been exposed to toxic mold. The Twelfth Judicial District Court, Parish Of Avoyelles, Nos. 2002-3740, 2002-3996, 2002-3997 and 2002-3998, William Bennett, D.J., denied defendants' exceptions of no right of action, lack of indispensable party and related exceptions. Defendants filed writs of review. The Court of Appeal reversed, and plaintiffs applied for writs. The Supreme Court, 925 So.2d 523, denied in part and granted in part the application.
*Holding: On remand, the Court of Appeal,
en banc, Amy, J., held that Indian tribe was not a necessary party,
and action would not be dismissed for nonjoinder.
Writ denied, and remanded.
Subjects: Factions -- Sac & Fox Tribe of the Mississippi in Iowa; Leadership disputes -- Sac & Fox Tribe of the Mississippi in Iowa; Contested elections -- Sac & Fox Tribe of the Mississippi in Iowa.
*Synopsis: (from the opinion) This case is another in a long string of state and federal litigation stemming from a tribal leadership dispute within the Meskwaki Settlement near Tama, Iowa. In September 2002, a dissident faction led by Homer Bear Jr., challenged the authority of the elected council chaired by Alex Walker.
*Holding: not yet available
Subjects: Parent and child (Law); Trials (Custody of children) -- Minnesota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Jurisdiction -- Transfer -- Minnesota; Jurisdiction -- Yankton Sioux Tribe of South Dakota; Jurisdiction -- Minnesota.
*Synopsis: In child protection proceeding, county filed petition for transfer of legal custody of Indian child. Mother and father filed joint petition requesting transfer of jurisdiction to the tribal court, and father filed motion to dismiss. Tribe filed independent motion for transfer of jurisdiction. The District Court, Hennepin County, Herbert P. Lefler, J., denied requests to transfer and father's motion to dismiss, and issued order transferring legal custody of child to paternal grandmother of mother's older child. Father and tribe appealed. The Court of Appeals, 710 N.W.2d 799, reversed, concluding that good cause did not exist to deny transfer of jurisdiction to tribal court. Appeal was taken.
*Holding: Upon grant of expedited review,
the Supreme Court, Russell A. Anderson, C.J., held that good cause
existed for trial court to deny transfer of jurisdiction of proceeding
to tribal court of child's tribe.
Reversed; District Court order denying transfer of jurisdiction
to tribal court reinstated.
Subjects: Intergovenmental agreements -- Cowlitz Indian Tribe, Washington; Intergovernmental agreements -- Clark County (Wash.); Memorandums; Jurisdiction -- Western Washington Growth Management Hearings Board; Indian gaming -- Cowlitz Indian Tribe, Washington.
*Synopsis: Property owner and businesses appealed decision of Growth Management Hearings Board dismissing, for lack of jurisdiction, their petition to challenge memorandum of understanding (MOU) between county and Indian tribe concerning tribe's application to use certain land for commercial gaming, allegedly in violation of comprehensive plan. The Superior Court, Thurston County, Paula K. Casey, J., affirmed, and petitioners appealed.
*Holding: The Court of Appeals, Penoyar,
J., held that Board had jurisdiction, since MOU was de facto amendment
to county's comprehensive plan.
Reversed and remanded.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- California; Notice (Law) -- United States.
*Synopsis: In a child dependency proceeding, the Superior Court, San Bernardino County, James C. McGuire, J., terminated father's parental rights. Father appealed.
*Holding: The Court of Appeal, Gaut, J.,
held that trial court and county agency fulfilled mandatory duty
of inquiry under Indian Child Welfare Act (ICWA).
Affirmed.
Subjects: United States. Alaska Native Claims Settlement Act; Alaska Native corporations; Stock transfer; Tetlin Native Corporation.
*Synopsis: Former board members of Native corporation moved to enforce settlement agreement between Native corporation and its shareholders and directors, which provided for transfer of Alaska Native Claims Settlement Act (ANCSA) stock back to Native corporation in exchange for stock in a newly created corporation. The Superior Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, J., determined that settlement agreement was unenforceable. Former board members appealed.
*Holding: The Supreme Court, Matthews,
J., held that settlement agreement was unenforceable for violating
ANCSA prohibition on alienation of shares.
Affirmed.
Subjects: State recognized Indian tribes -- Unkechaug Indian Nation of Poospatuck Indians (N.Y.); Tribes -- Defined; Jurisdiction -- Suffolk County (N.Y.) Sovereign immunity -- Unkechaug Indian Nation of Poospatuck Indians (N.Y.).
*Synopsis: Action was brought against Indian tribe to recover for personal injuries. The Supreme Court, Suffolk County, Cohalan, J., granted tribe's motion to dismiss the complaint, and plaintiff appealed.
*Holding: The Supreme Court, Appellate
Division, held that tribe had tribal status which entitled it to
assert sovereign immunity from personal injury suit.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Oklahoma; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978 -- Application.
*Synopsis: Mother and stepfather of Indian child filed application for order determining child eligible for adoption without consent of natural parent, alleging that father's consent was not required. The District Court, Cleveland County, Stephen Bonner, J., denied application. Mother and stepfather appealed.
*Holding: The Court of Civil Appeals,
Adams, J., held that:
(1) mother and stepfather were not required to prove grounds for
application beyond a reasonable doubt, and
(2) appellate court could not enter order that trial court should
have entered, but instead was required to remand to trial court,
as trial court had not evaluated evidence under correct burden of
proof.
Reversed and remanded.
Subjects: Parent and child (Law); Trials (Custody of children) -- Washington (State); Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978 -- Application; Parental rights -- Termination -- Washington (State); Non-members of a tribe.
*Synopsis: Mother appealed from orders of the Superior Court, Grays Harbor County, Gordon Godfrey, J., terminating her parental rights over her three children.
*Holding: The Court of Appeals, Bridgewater,
P.J., held that:
(1) substantial evidence did not support trial court's finding that
there was little likelihood that mother's parental deficiencies
could be remedied in near future, as would support termination of
parental rights, and
(2) Indian Child Welfare Act (ICWA) was inapplicable.
Reversed.
Subjects: Illinois. Illinois Civil Rights Act of 2003; Indians as mascots -- Illinois; University of Illinois at Urbana-Champaign; Illinois Native American Bar Association; Chief Illiniwek (Mascot).
*Synopsis: Students and Native American association brought action against State University alleging that performances by Indian Chief mascot at University football games violated the Civil Rights Act. The Circuit Court of Cook County, David R. Donnersberger, J., dismissed plaintiffs' complaint, and plaintiffs appealed.
*Holding: The Appellate Court, Wolfson, J., held that Civil Rights Act did not by implication repeal statute recognizing Indian Chief mascot as the honored symbol of the University.
Subjects: Oil and gas leases -- Navajo Nation, Arizona, New Mexico & Utah -- Sales -- Federal supervision; United States. Bureau of Indian Affairs.
*Synopsis: Seller of oil well leases sought to rescind purchase and sale agreement of leases to buyer. The District Court, San Juan County, John A. Dean, D.J., granted buyer's motion for summary judgment and dismissed complaint with prejudice. Seller appealed.
*Holding: The Court of Appeals, Vigil,
J., held that:
(1) federal approval of sale of oil and gas leases was not a condition
precedent to making of purchase and sale agreement;
(2) buyer's technical failure to comply with bonding requirements
was insufficient to support seller's claim for rescission of contract;
and
(3) courts did not lack jurisdiction for failure to join Indian
tribe that owned the mineral rights as indispensable party.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978 -- Application; Parental rights -- Termination -- California; Existing Indian family exception; Confederated Tribes of the Grand Ronde Community of Oregon -- Members.
*Synopsis: Non-Indian mother filed petition to terminate parental rights of father to free minor for adoption by stepfather and Indian tribe, in which minor was enrolled member through father, was allowed to intervene. The Superior Court, Sacramento County, No. 03AD00616, Charles C. Kobayashi, J., denied the petition, and mother appealed.
*Holding: The Court of Appeal, Davis, J., held that:
(1) it would decline to adopt the judicially created "existing Indian family doctrine" exclusion from the protections of the Indian Child Welfare Act (ICWA);
(2) "good cause" exception to evidentiary requirements of ICWA did not apply under circumstances where anticipated placement was with child's mother;
(3) under ICWA, mother had to prove by clear and convincing evidence that she made active efforts to prevent breakup of Indian family; and
(4) mother carried her burden of proving that she made reasonable, active efforts to preserve minor's relationship with father.
Reversed.
Subjects: Jurisdiction -- Confederated Salish & Kootenai Tribes of the Flathead Reservation, Montana; Drinking and traffic accidents -- Montana; Non-members of a tribe; Tiny's Tavern of Charlo, Inc. (Mont.).
*Synopsis: Underage patron brought negligence action against tavern, tavern's owner, who was tribal member, and tavern's alleged owner, seeking recovery for injuries sustained in automobile accident after bartenders allegedly served patron and continued to serve patron after he was visibly intoxicated. The District Court, Twentieth Judicial District, County of Lake, C.B. McNeil, J., dismissed defendants. Patron appealed.
*Holding: The Supreme Court, James C.
Nelson, J., held that:
(1) fact that owner was tavern's sole shareholder was not, by itself,
enough to warrant piercing the corporate veil;
(2) consensual-relationship exception to general rule that inherent
sovereign powers of Indian tribe do not extend to activities of
nonmembers of tribe did not apply; and
(3) self-government exception did not apply.
Affirmed in part, reversed in part, and remanded.
Subjects: Divorce suits -- Minnesota; Income -- Defined; Marital property -- Defined; Shakopee Mdewakanton Sioux Community of Minnesota -- Members.
*Synopsis: In divorce proceeding, the District Court, Scott County, Diane M. Hanson, J., dissolved parties' marriage, granted parties joint legal and physical custody of children, and ordered division of parties' marital property, after which former wife's motion for amended findings or a new trial was denied. Former wife appealed.
*Holding: The Court of Appeals, Willis,
J., held that:
(1) trial court did not abuse its discretion by denying former wife's
motion for amended findings relating to former husband's residence;
(2) trial court did not abuse its discretion in denying former wife's
motion for new trial on grounds of fraud or newly discovered evidence;
(3) evidence supported award to parties of joint legal and physical
custody of children;
(4) monthly per capita payments that former wife, who was member
of Indian tribe, received from tribal community were marital property
subject to division between parties; and
(5) trial court did not abuse its discretion in equally dividing
marital property.
Affirmed.
Related News Stories: Court gives ex-husband share of tribal casino profits (St. Paul Pioneer) 8/24/06
Subjects: Employees, Dismissal of -- Mohegan Indian Tribe of Connecticut; Sovereign immunity -- Mohegan Indian Tribe of Connecticut; Indian gaming -- Mohegan Indian Tribe of Connecticut; Mohegan Indian Tribe of Connecticut. Mohegan Discriminatory Employment Practices Ordinance; Jurisdiction -- New Haven (Conn.).
*Synopsis: Former casino employee brought action against tribal gaming authority and casino, alleging that his rights under tribe's discriminatory employment practices ordinance had been violated, and defendants filed motion to dismiss for lack of subject matter jurisdiction. The Superior Court, Judicial District of New Haven, Thompson, J., granted defendants' motion to dismiss. Former employee appealed.
*Holding: The Appellate Court held that
trial court lacked subject matter jurisdiction over action.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Oklahoma; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- Oklahoma; Cherokee Nation, Oklahoma; Family reunification.
*Synopsis: The State moved to terminate mother's parental rights to Indian child. The District Court, Tulsa County, Edward Hicks, J., terminated parental rights. Mother appealed.
*Holding: The Court of Civil Appeals,
Kenneth L. Buettner, C.J., held that:
(1) evidence supported finding that the State and Tribe performed
"active efforts" to reunite Indian family, and
(2) trial court finding that the State and Tribe performed active
efforts to reunite family was to be reviewed to determine whether
the finding was against the clear weight of the evidence.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Colorado; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Jurisdiction -- Probate courts -- Denver (Colo.).
*Synopsis: Suspended legal guardian of minor filed a petition seeking permanent guardianship of minor. The Denver Probate Court, Denver County, C. Jean Stewart, J., denied the petition and entered an order that removed minor's temporary substitute guardian, declared minor to be ward of the court, and appointed the guardian ad litem (GAL) as guardian designee. Suspended legal guardian appealed.
*Holding: The Court of Appeals, Rothenberg,
J., held that:
(1) Denver Probate Court exceeded its subject matter jurisdiction
when it conducted what amount to de facto adoption proceeding;
(2) order that appointed minor's GAL as minor's “guardian
designee” was improper; and
(3) there were grounds for Denver Probate Court to refer matter
to Juvenile Court.
Vacated and remanded with directions.
Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Adoption; Limitation of actions -- United States.
*Synopsis: Putative father sought to set aside decree granting petition for adoption of an Indian child on grounds of noncompliance with requirements of Indian Child Welfare Act (ICWA). The Superior Court, Fourth Judicial District, Fairbanks, Richard D. Savell, J., entered summary judgment in favor of adoptive parents. Putative father appealed.
*Holding: The Supreme Court, Eastaugh, J., held that father's action was governed by state's one-year statute of limitations for challenging adoption decrees.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- Alaska; Evidence, Expert.
*Synopsis: The Superior Court, Third Judicial District, Anchorage, Sharon Gleason, J., entered judgment terminating mother's parental rights to Indian child, and child's grandfather, who claimed to be her Indian custodian, appealed.
*Holding: The Supreme Court, Carpeneti,
J., held that:
(1) grandfather lacked standing in proceedings; and
(2) grandfather's incarceration rendered status as custodian moot.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Alabama; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978 -- Application; Alabama. Uniform Child Custody Jurisdiction and Enforcement Act; Family violence.
*Synopsis: After wife filed a tribal court order that granted her custody of child and the trial court relinquished jurisdiction over pending domestic-relations issues, husband filed a motion to vacate judgment. The Circuit Court, Shelby County, DR-03-239.02, vacated its judgment and declined to give full faith and credit to the tribal order. Wife petitioned for a writ of mandamus.
*Holding: The Court of Civil Appeals,
Pittman, J., held that:
(1) trial court had jurisdiction to vacate its judgment that purported
to relinquish jurisdiction over child custody proceeding to a tribal
court, and
(2) tribal court did not have exclusive jurisdiction over child
custody proceeding.
Petition denied.
Subjects: Gambling on Indian reservations -- Wisconsin; Indian gaming -- Wisconsin; Governors -- Wisconsin -- Powers and duties; Intergovernmental agreements -- Indian Country (Wisconsin).
*Synopsis: Greyhound racing facility sought declaratory judgment to effect that amendment to state constitution prohibiting legislature from authorizing gambling deprived governor of authority to permit Indian tribes in state to continue conducting casino-type gaming, and injunctive relief enjoining governor from renewing compacts authorizing Indian tribes to conduct casino-type gaming. The Circuit Court, Dane County, Richard J. Callaway, J., granted governor's motion for summary judgment, and racing facility appealed. The Court of Appeals certified appeal to state Supreme Court. An equally divided Supreme Court, 270 Wis.2d 267, 677 N.W.2d 275, remanded to the Court of Appeals. The Court of Appeals again certified appeal.
*Holding: The Supreme Court, Louis B.
Butler, Jr., J., accepted certification and held that:
(1) amendment at issue was not retrospective in operation with respect
to pre-existing gaming compacts;
(2) amendment at issue was not intended to invalidate compacts;
(3) law in existence at time state and tribes entered into compacts
controlled;
(4) amendment at issue did not impact extension of compacts;
(5) amendment at issue did not require state to exercise its right
of nonrenewal of compacts; and
(6) amendment at issue did not prohibit state from amending compacts
to expand scope of permissible tribal gaming, abrogating Panzer
v. Doyle, 271 Wis.2d 295, 680
N.W.2d 666.
Affirmed.
Related News Stories: Wisconsin: State Supreme Court upholds Indian gambling (Grand Forks Herald) 7/14/06
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- California; Notice (Law) -- United States; Due process of law -- United States.
*Synopsis: In a child dependency proceeding, the Superior Court, San Diego County, No. J508666F, William E. Lehnhardt, J., terminated mother's parental rights after appointing a guardian ad litem (GAL) for her, and mother appealed.
*Holding: The Court of Appeal, Aaron, J., held that:
(1) appointment violated mother's due process rights; but
(2) appointment was trial error that was harmless beyond a reasonable doubt; and
(3) notice to Indian tribes under Indian Child Welfare Act (ICWA) was deficient.
Reversed and remanded.
Subjects: Parent and child (Law); Trials (Custody of children) -- Nebraska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- Nebraska; Notice (Law) -- United States; Yankton Sioux Tribe of South Dakota.
*Synopsis: Natural mother of child appealed from order of the Separate Juvenile Court, Douglas County, Elizabeth G. Crnkovich, J., terminating her parental rights.
*Holding: The Court of Appeals, Inbody,
C.J., held that state failed to notify essential party to proceedings
to terminate parental rights of mother, an enrolled member of an
Indian tribe, thus requiring vacating of order of termination.
Vacated and remanded.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; United States. Indian Child Welfare Act of 1978 -- Application..
*Synopsis: In a child dependency proceeding, the Superior Court, San Bernardino County, Nos. J186198, David S. Cohn, J., determined that the Indian Child Welfare Act (ICWA) did not apply and terminated mother's parental rights. Mother appealed.
*Holding: The Court of Appeal, McKinster,
J., held that sufficient evidence supported trial court's determination
that ICWA was inapplicable.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978 -- Application; Parental rights -- Termination -- California.
*Synopsis: In a child dependency proceeding, the Superior Court, Kern County, Nos. JD105181, JD105182, Richard J. Oberholzer, J., determined that the Indian Child Welfare Act (ICWA) did not apply and terminated father's parental rights. Father appealed.
*Holding: The Court of Appeal, Harris, Acting P.J., held that father's late assertion of Indian heritage at termination hearing did not retrigger ICWA notice requirements, given earlier compliance with such requirements.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Colorado; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- Colorado; Notice (Law) -- United States.
*Synopsis: The district court terminated mother's parental rights to child who was found to be dependent and neglected. Mother appealed. The Court of Appeals affirmed. Review was granted.
*Holding: The Supreme Court, Coats, J., held that requirement under Indian Child Welfare Act (ICWA) that potentially affected tribes be noticed was triggered during dependency proceeding. Reversed and remanded.
Subjects: Parent and child (Law); Trials (Custody of children) -- Alabama; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Jurisdiction -- Transfer -- Alabama; Jurisdiction -- Chickasaw Nation, Oklahoma; Jurisdiction -- Alabama.
*Synopsis: In child dependency proceeding, the Montgomery Juvenile Court, Nos. JU-03-446.01 and JU-03-446.02, John L. Capell III, J., entered an order transferring action to Chickasaw Nation tribal court pursuant to the Indian Child Welfare Act (ICWA), and denied guardian ad litem's motion asking that order be reconsidered. Guardian ad litem filed petition for writ of mandamus. The Court of Civil Appeals granted petition and directed Juvenile Court to rescind order.
*Holding: After granting Chickasaw Nation's
application for rehearing, the Court of Civil Appeals, Thompson,
J., held that:
(1) juvenile court's order transferring jurisdiction was a final
judgment from which an appeal would lie;
(2) ICWA applied to the proceeding; but
(3) juvenile court abused its discretion by ordering the transfer
without conducting a hearing to determine whether good cause existed
to deny the transfer.
Reversed and remanded with instructions.
Subjects: Assault and battery -- New Mexico; Taos (N.M.); Indian Country (New Mexico) -- Defined; Jurisdiction -- New Mexico; Tribal members -- Pueblo of Taos, New Mexico; Jurisdiction -- New Mexico.
*Synopsis: In one case, Native American defendant was charged with aggravated battery. The District Court, Taos County, Peggy J. Nelson, D.J., granted defendant's motion to dismiss indictment, and State appealed. The Court of Appeals, 135 N.M. 53, 84 P.3d 670, reversed. In other case, Native American defendant was indicted for assault, battery, carrying concealed weapon, criminal negligence, and disorderly conduct. The District Court, Michael E. Vigil, D.J., dismissed indictment, and State appealed. The Court of Appeals reversed. Both defendants petitioned for certiorari review.
*Holding: The Supreme Court, Serna, J.,
held that:
(1) State lacked jurisdiction to prosecute Native American defendants
for crimes committed within exterior boundaries of their respective
pueblos, and
(2) conveyance of land designated as Indian country to non-Native
American did not extinguish status of land as Indian country.
Judgment of the Court of Appeals reversed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Intervention (Civil procedure); Winnebago Tribe of Nebraska.
*Synopsis: In child-of-need-of-assistance proceedings, the District Court, Woodbury County, Brian L. Michaelson, J., entered order allowing tribe to intervene. State and child appealed. Attorney General filed motion to dismiss appeal. A three-judge panel of Supreme Court dismissed appeal as untimely, but then subsequently recalled procedendo. Attorney General filed motion to vacate order recalling procedendo.
*Holding: The Supreme Court, Ternus, J., held that neither Supreme Court clerk's issuance of procedendo prior to expiration of 14-day period for requesting rehearing nor State's petition for rehearing provided grounds for recall of procedendo.
Appeal dismissed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Notice (Law).
*Synopsis: County agency filed dependency petition, based on inadequate parental supervision, for child with possible Indian heritage bringing him within the notice provisions of the Indian Child Welfare Act (ICWA). The Superior Court, San Diego County, No. J515221, Cynthia Bashant, J., found that ICWA did not apply, and terminated father's parental rights. Father appealed, but subsequently stipulated with minor and agency for reversal of the judgment based on defective notice under the ICWA. However, father and minor withdrew their consent to the stipulation, based on their challenge to the appellate practice of limited reversals for correction of ICWA notice defects, with automatic reinstatement of the prior termination judgment if an Indian tribe were not to intervene.
*Holding: The Court of Appeal, Huffman, J., held that:
(1) challenged appellate practice was proper as comporting with public policy of child dependency scheme and with established appellate practice, and
(2) practice of limited reversals did not violate substantive due process principles.
Reversed and remanded with directions.
Subjects: Sovereign immunity -- Viejas Band of Kumeyaay Indians; House of Blues (Firm); Indian business enterprises -- Viejas Band of Kumeyaay Indians; Employees; Contracts; Trade secrets.
*Synopsis: (from the opinion) House of Blues Concerts, Inc. (House of Blues) appeals the trial court's order granting a motion to quash service of summons based on tribal sovereign immunity in favor of Steve Redfearn-an officer of a tribal business entity owned by the Viejas Band of Kumeyaay Indians (Viejas). As we will explain, we conclude that the trial court correctly concluded that Redfearn is protected by Viejas's tribal sovereign immunity as an officer of a tribal business enterprise. Accordingly, we affirm.
*Holding: not yet available
Subjects: Jurisdiction -- Minnesota; Traffic violations -- On Indian reservations; Non-members of a tribe.
*Synopsis: (from the opinion) Appellant Joelyn Rose Hart argues that the district court erred in determining that respondent State of Minnesota has jurisdiction to enforce its driver's license and proof of insurance laws against an American Indian who commits these offenses on a road located on the reservation of a tribe of which she is not an enrolled member. Because the Minnesota Supreme Court has already decided this issue, and we defer to that court as to any reevaluation of its previous holding, we affirm.
*Holding: not yet available
Subjects: Water rights -- San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Gila River (N.M. and Ariz.); San Carlos Indian Irrigation Project (U.S.); Water rights -- Arizona.
*Synopsis: General stream adjudication order was entered by the Maricopa County Superior Court, Nos. W-1, W-2, W-3, W-4, determining that 1935 federal court consent decree had preclusive effect on water claims by Indian Tribe to additional water from the mainstem of river, but not to water from its tributaries. Tribe appealed. The Supreme Court, 212 Ariz. 64, 127 P.3d 882, affirmed and remanded. Tribe filed motion for reconsideration.
*Holding: The Supreme Court, Hurwitz, J., held that doctrine of comity precluded attack on federal court decree.
Motion denied.
Subjects: Hawaii. Office of Hawaiian Affairs; Breach of trust -- Alaska; Public lands -- Hawaii; Revenue sharing -- Alaska.
*Synopsis: Office of Hawaiian Affairs (OHA) brought action against State alleging breach of settlement and breach of trust, seeking a share of revenues that State had collected from ceded lands, including the airport. The First Circuit Court, No. 03-1-1505-07, Gary W.B. Chang, J., entered judgment in favor of State. OHA appealed.
*Holding: On reconsideration, the Supreme Court, Moon, C.J., held that:
(1) OHA's claim for breach of settlement was subject to dismissal;
(2) claim for breach of trust was subject to dismissal based on notice and statute of limitations grounds; and
(3) equitable tolling did not apply.
Affirmed.
Subjects: Foster care placement -- Kansas; Adoption -- Kansas; United States. Indian Child Welfare Act of 1978; Existing Indian family exception; Potawatomi Indians.
*Synopsis: Non-Native American foster parents petitioned to adopt Native American child. Tribe intervened. The Johnson District Court, Lawrence E. Sheppard, J., granted parents' petition. Tribe appealed, and the Court of Appeals, 33 Kan.App.2d 894, 111 P.3d 651, affirmed.
*Holding: On tribe's petition for review, the Supreme Court, Allegrucci, J., held that:
(1) appellate review of determination as to whether there was good cause for deviating from preferred placement of child under Indian Child Welfare Act (ICWA) was for substantial abuse of discretion, and
(2) good cause existed for deviating from statutory placement preferences under ICWA.
Affirmed.
Subjects: Cigarette vendors -- New York (State); Cigarettes -- Transportation; Law -- New York (State); Shinnecock Indian Nation (N.Y.) -- Members; Shinnecock Smoke Shop (N.Y.).
*Synopsis: Proprietor of smoke shop located on Indian reservation brought Article 78 proceeding against state Attorney General, seeking injunctive relief and declaration that statute governing unlawful shipment and transport of cigarettes was invalid as applied to him, due to his status as member of Indian tribe who enjoyed free trade guarantee under treaty. The Supreme Court, Albany County, Clemente, J., dismissed petition. Proprietor appealed.
*Holding: The Supreme Court, Appellate Division, Mercure, J.P., held that:
(1) proprietor lacked standing to bring proceeding, and
(2) proprietor lacked standing to invoke on his own behalf any rights that tribe had under treaty.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Grandparents; Parental rights -- Termination -- California; Adoption -- California; Guardianship -- California.
*Synopsis: Permanency planning hearing was held for dependent child who had been temporarily placed with his maternal grandmother. The Superior Court, Los Angeles County, No. CK56333, Stephen Marpet, Juvenile Court Referee, terminated mother's parental rights and ordered adoption as the permanent plan. Mother and minor appealed.
*Holding: The Court of Appeal, Cooper, P.J., held that statutory exceptions applied, so that guardianship, rather than adoption and termination of parental rights, should have been selected as permanent plan.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Abused Indian children -- California; Sex crimes -- California; Notice (Law) -- United States.
*Synopsis: County agency filed dependency petition on behalf of 15-year-old minor, who had Down's syndrome with an IQ of 44, based on minor's allegations that she had been sexually molested by her stepfather and her mother's failure to protect her from continuing abuse. The Superior Court, Sacramento County, No. JD220095, Peter Mering, J., declared the minor dependent and found that it would be detrimental to return her to mother's custody at the dispositional hearing. Mother appealed
*Holding: The Court of Appeal, Scotland, P.J., held that:
(1) appellate counsel's application for permission to file oversized appellate brief was unsupported by good cause;
(2) appellate brief contained numerous violations of court rules;
(3) sufficient evidence supported juvenile court's findings that minor was molested and that mother failed to adequately protect her against recurrence of molestations;
(4) juvenile court adequately fulfilled its duty to ensure that mother had visitation with minor;
(5) appellate counsel violated statutory duty to truthfully represent appellate holdings to the court;
(6) because minor briefly recanted her reports of molestation, expert testimony relating to child sexual abuse accommodation syndrome (CSAAS) was relevant;
(7) substantial evidence supported finding that minor was competent to testify; and
(8) evidence failed to support claim of judicial bias in favor of county agency.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Grandparents; Abused Indian children -- California; Family reunification -- California; Genealogy -- Research.
*Synopsis: County agency filed dependency petition for 10-year-old minor based on father's failure to protect minor against emotional damage and cruelty he was suffering while he was living with his maternal grandparents. Mother had been incarcerated and had not seen minor in nine years, based on her no contest plea to willful cruelty and voluntary manslaughter in connection with the death of minor's sister, but mother had spoken to minor in weekly telephone calls while he was living with her parents. The Superior Court, Kern County, No. JD107612, Robert J. Anspach, J., ordered reunification services and supervised visits for father, but denied services for mother and ordered that minor have no contact with her. Mother appealed.
*Holding: The Court of Appeal, Gomes,
J., held that:
(1) once juvenile court denied reunification services with mother
based on finding of detriment, decision whether to permit visitation
was discretionary and could be based on best interests analysis;
(2) no contact order was not an abuse of discretion; but
(3) juvenile court failed to inquire as to whether mother had Indian
heritage, as required by Indian Child Welfare Act (ICWA).
Affirmed
in part, reversed in part, and remanded.
Subjects: Restraining orders -- Confederated Tribes of the Colville Reservation, Washington; Judgments, Foreign -- Confederated Tribes of the Colville Reservation, Washington; Judicial assistance -- Washington (State); Due process of law -- United States.
*Synopsis: Defendant, who was charged with violating tribal court restraining order, moved to dismiss charges on ground that order did not contain warning that violation could be punishable as crime. The Superior Court, Okanogan County, Christopher E. Culp, J., granted motion. State appealed.
*Holding: The Court of Appeals, Thompson, Judge Pro Tempore, held that:
(1) statute requiring restraining orders to contain warning of criminal penalty did not apply to order issued by tribal court;
(2) tribal court order was entitled to full faith and credit; and
(3) enforcement of order did not violate due process.
Reversed.
Subjects: Cigarettes -- Taxation -- Idaho; Cigarettes -- Taxation -- Washington (State); Cigarettes -- Transportation -- Washington (State); Searches and seizures -- Washington (State); Cigarette vendors -- Puyallup Tribe of the Puyallup Reservation, Washington; Puyallup Tribe of the Puyallup Reservation, Washington -- Members; Commerce -- Law and legislation -- Washington (State); Excise taxes; Commerce -- Law and legislation -- United States; Due process of law -- United Sates; Equality before the law -- United States.
*Synopsis: Member of Idaho Indian Tribe petitioned for return of tobacco products and certain personal property seized by the State as contraband for violation of cigarette tax law. The Superior Court, Kittitas County, Scott R. Sparks, J., entered summary judgment for the State. Member appealed.
*Holding: The Court of Appeals, Brown, J., held that:
(1) tax did not violate commerce clause;
(2) tax did not violate equal protection;
(3) tax did not violate state guarantee of equal privileges, and
(4) uniform taxation requirements do not apply to excise taxes.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Minnesota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- Rhode Island; Jurisdiction -- Transfer -- Minnesota; Jurisdiction -- Yankton Sioux Tribe of South Dakota; Jurisdiction -- Minnesota; Grandparents.
*Synopsis: In child protection proceeding, county filed petition for transfer of legal custody of Indian child. Mother and father filed joint petition requesting transfer of jurisdiction to the tribal court, and father filed motion to dismiss. Tribe filed independent motion for transfer of jurisdiction. The District Court, Hennepin County, Herbert P. Lefler, J., denied requests to transfer and father's motion to dismiss, and issued order transferring legal custody of child to paternal grandmother of mother's older child. Father and tribe appealed.
*Holding: The Court of Appeals, Lansing, J., held that:
(1) allegations set forth in child protection petitions filed by county were sufficient to confer subject matter jurisdiction on trial court;
(2) father and Indian tribe waived on appeal issue of whether trial court lacked personal jurisdiction over Indian child; and
(3) good cause did not exist to deny requests of parents and Indian tribe to transfer jurisdiction to tribal court.
Affirmed in part, reversed in part, and remanded.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- California; Adoption -- California; Grandparents; Indian children -- Sycuan Band of Diegueno Mission Indians of California; Sycuan Band of Diegueno Mission Indians of California -- Members.
*Synopsis: In dependency proceeding relating to two siblings, one of whom came within purview of Indian Child Welfare Act (ICWA), agency recommended termination of parental rights and adoption of the child by the paternal grandparents at the 12-month review hearing. The Superior Court, San Diego County, Gary M. Bubis, Referee, terminated mother's parental rights at the permanency planning hearing. Mother appealed.
*Holding: The Court of Appeal, Huffman,
Acting P.J., held that:
(1) substantial evidence supported current finding of detriment
required by ICWA, and thus finding was not stale despite 11-month
gap between 12-month review and permanency planning hearings, and
(2) dual representation of children by counsel was not marred by
conflict of interest.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Nebraska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Omaha Tribe of Nebraska -- Members; Indian children -- Omaha Tribe of Nebraska; Jurisdiction -- Nebraska; Notice (Law) -- United States.
*Synopsis: Department of Health and Human Services (DHHS) sought custody of Indian children. The Juvenile Court, Douglas County, Christopher Kelly, J., found that was in the best interests of the children to remain in the temporary custody of DHHS for appropriate care and placement. Mother appealed.
*Holding: The Court of Appeals, Moore,
J., held that:
(1) juvenile court had jurisdiction over Indian children in involuntary
foster care placement proceeding;
(2) juvenile court erred when it proceeded in involuntary foster
care placement proceeding under original petition instead of amended
petition, which included ICWA language; and
(3) notice that Indian children had been removed from family residence
by DHHS was required to be given to tribe.
Reversed and remanded
with directions.
Subjects: Indian youth -- California; Juvenile delinquents -- California; United States. Indian Child Welfare Act; Notice (Law) -- United States.
*Synopsis: Minor was adjudicated ward of the juvenile court in the Superior Court, Kings County, No. 03JQ0224, James LaPorte, J., based on findings he committed sexual battery and vandalism. Minor appealed.
*Holding: The Court of Appeal, Ardaiz, P.J., held that Indian Child Welfare Act (ICWA) notice requirements did not apply to this delinquency case.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Texas; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- Texas. United States. Indian Child Welfare Act -- Application.
*Synopsis: Robin and Angela Waldrop's parental rights to their children, R.M .W., J.M.W., and C.A.W., were terminated by the trial court. The Waldrops raise five issues on appeal, each of which depends on their assertion that the federal Indian Child Welfare Act (ICWA) applies to this case and, therefore, imposes additional procedural and standard-of-proof requirements] which were not met in the trial court.
*Holding: The Court of Appeals, Morriss, C.J held that Indian Child Welfare Act (ICWA) did not apply.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- New Mexico; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Intervention (Civil procedure) -- Karuk Tribe of California; Transfer (Law) -- United States; Exclusive jurisdiction -- Karuk Tribe of California.
*Synopsis: After Indian tribe was permitted to intervene in a child dependency proceeding, tribe petitioned to transfer proceeding from juvenile court to tribal court pursuant to Indian Child Welfare Act (ICWA). The Superior Court, Siskiyou County, No. 999900124, Bill Davis, J., issued an order granting the transfer. County agency appealed.
*Holding: The Court of Appeal, Sims, J., held that Indian tribe was entitled to transfer of proceeding to tribal court under ICWA, even though tribal court had not followed statutory procedure for "reassumption" of exclusive jurisdiction.
Affirmed.
Subjects: United States. Freedom of Information Act; Natural gas facilities -- Pleasant Point Passamaquoddy Reservation (Me.).
*Synopsis: Newspapers brought action against tribal reservation under the state Freedom of Access Act (FOAA) seeking reservation docents concerning proposed liquefied natural gas (LNG) facility, and seeking declaratory judgment that meetings of reservation's governor and council must be open to the public. The Superior Court, Washington County, Humphrey, C.J., entered judgment in favor of reservation. Newspapers appealed.
*Holding: The Supreme Judicial Court, Saufley, C.J., held that:
(1) reservation was acting in its business capacity, rather than its municipal capacity, when it entered into lease of tribal land with developer of LNG facility, and
(2) public policy concerns did not require that reservation's actions in entering into lease result in reservation being subject to requirements of Freedom of Access Act (FOAA).
Affirmed.
Subjects: Sovereign immunity -- Pueblo of San Juan, New Mexico; Sovereign immunity -- San Juan Gaming Commission (N.M.); Licenses; Revocation.
*Synopsis: Former executive director of tribal gaming commission brought action against tribe and gaming commission in connection with the revocation of his gaming license. The District Court of Rio Arriba County, Garcia, D.J., granted tribe's motion to dismiss. Plaintiff appealed.
*Holding: The Court of Appeals, Alarid, Judge. held that tribe and commission did not waive tribal sovereign immunity.
Affirmed.
Subjects: Jurisdiction -- California; Sovereign immunity -- Campo Band of Diegueno Mission Indians of the Campo Indian Reservation, California; Intergovernmental agreements -- California; Intergovernmental agreements -- Campo Band of Diegueno Mission Indians of the Campo Indian Reservation, California; Accidents -- Golden Acorn Casino.
*Synopsis: Woman who was injured while a patron at a gaming facility operated by an Indian tribe brought personal injury and premises liability actions against the tribe. The tribe, having concluded that the patron had failed to comply with the procedural prerequisites to arbitration, which was the procedure mandated by the tribe's compact with the state for processing tort claims, refused to participate in arbitration of the woman's claims. The Superior Court, San Diego County, No. GIE021220, Eddie J. Sturgeon, J., dismissed the complaints based on tribal sovereign immunity, but issued an order requiring arbitration of the claims. Tribe filed a petition for writ of mandate.
*Holding: The Court of Appeal, McIntyre, J., held that:
(1) tribe unambiguously waived its immunity from personal injury suits by patrons of its gambling facility in its compact with the state, but
(2) tribe's waiver in compact was limited to waiver of right to be sued in arbitral forum, and thus trial court lacked subject matter jurisdiction to compel arbitration on merits of claim, but
(3) viability of patrons claim had to be addressed in arbitral forum.
Petition granted in part.
Subjects: Wrongful death -- Tohono O'odham Nation Gaming Enterprise; Jurisdiction -- Arizona; Sovereign immunity -- Tohono O'odham Nation of Arizona; Tohono O'odham Nation Gaming Enterprise.
*Synopsis: Motorist, and passenger's estate, brought personal injury, wrongful death, and statutory dram-shop liability claims against tribal casino and several of its employees, alleging that the employees had served alcohol to an obviously intoxicated patron, who later drove a vehicle that collided with motorist's vehicle. The Superior Court, Pima County, Deborah Bernini, J., dismissed the action, based on tribal sovereign immunity. Plaintiffs appealed.
*Holding: The Court of Appeals, John Pelander, C.J., held that:
(1) Arizona's prohibition against a liquor licensee's serving alcohol to an obviously intoxicated person constitutes permissible regulation of Indian tribe; but
(2) private party cannot prosecute suit for monetary damages, for violation of state's liquor laws, against Indian tribe in state court, absent Congressional waiver of tribal immunity or tribe's clear waiver of immunity;
(3) tribe did not clearly and expressly waive sovereign immunity; and
(4) tribe employees had sovereign immunity.
Affirmed.
Subjects: Clergy -- Qualifications; Marriage -- North Carolina; Marital status -- North Carolina.
*Synopsis: Department of Health and Human Services (DHHS) sought custody of Indian children. The Juvenile Court, Douglas County, Christopher Kelly, J., found that was in the best interests of the children to remain in the temporary custody of DHHS for appropriate care and placement. Mother appealed.
*Holding: The Court of Appeals, Moore,
J., held that:
(1) juvenile court had jurisdiction over Indian children in involuntary
foster care placement proceeding;
(2) juvenile court erred when it proceeded in involuntary foster
care placement proceeding under original petition instead of amended
petition, which included ICWA language; and
(3) notice that Indian children had been removed from family residence
by DHHS was required to be given to tribe.
Reversed and remanded
with directions.
Subjects: Water rights -- San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Gila River (N.M. and Ariz.); San Carlos Indian Irrigation Project (U.S.); Water rights -- Arizona.
*Synopsis: The Superior Court of Maricopa County, Eddward P. Ballinger, Jr., J., entered an order in a general stream adjudication that a 1935 federal court consent decree had preclusive effect on water claims by an Indian Tribe to additional water from the mainstem, but not to water from its tributaries. The Tribe appealed.
*Holding: The Supreme Court, Hurwitz,
J., held that:
(1) decree had no preclusive effect as to claims to tributaries,
and
(2) there was preclusive effect as to claims to river.
Affirmed
and remanded.
Subjects: Contracts -- New Mexico; Torts -- New Mexico; Sovereign immunity -- Pueblo of Santa Ana, New Mexico; Intergovernmental agreements -- Pueblo of Santa Ana, New Mexico; Intergovernmental agreements -- New Mexico; Contracts -- Pueblo of Santa Ana, New Mexico; Liquor industry -- Licenses; Santa Ana Star Casino.
*Synopsis: Commercial lessee operating restaurant located in tribal casino brought action against lessor, which was a federally chartered corporation owned by the tribe, the tribe itself, and the casino, alleging a variety of contract and tort claims arising from tribe's decision not to renew lessee's liquor license. Lessor, tribe, and casino filed joint motion to dismiss. The District Court, Bernalillo County, Theresa Baca, D.J., dismissed the action finding that lessee's claims were barred by sovereign immunity and were within exclusive jurisdiction of the tribal court. Lessee appealed.
*Holding: The Court of Appeals, Pickard, J., held that:
(1) waiver adopted in tribe's resolution pursuant to lease did not waive sovereign immunity from lessee's action;
(2) waiver provisions in gaming compact between state and tribe for the protection of visitors did not waive sovereign immunity from lessee's action; and
(3) provisions in gaming contract that prohibited discrimination did not waive tribe's sovereign immunity.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Nebraska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: Mother filed a petition to invalidate several juvenile court dependency orders and a motion to dismiss based on an alleged failure to comply with the Indian Child Welfare Act (ICWA). The Separate Juvenile Court, Douglas Court, Elizabeth G. Crnkovich, J., denied the petition and motion. Mother appealed.
*Holding: The Court of Appeals, Moore, J., held that:
(1) order denying mother's motion to invalidate prior dependency orders and mother's motion to dismiss proceeding was a final, appealable order;
(2) trial court error, if any, in issuing dependency orders, which found that the children were lacking proper parental care by reason of the faults or habits of mother, that failed to comply with the federal and Nebraska ICWAs was harmless; and
(3) trial court error in failing to articulate a standard by which it made its findings regarding foster care placement for the children, or make a finding, supported by testimony of qualified expert witnesses, that active but unsuccessful efforts had been made to prevent the breakup of the Indian family or that continued custody of the children by mother was likely to result in serious emotional or physical damage, was harmless.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Nebraska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination -- Nebraska.
*Synopsis: Department of Health and Human Services (DHHS) filed motions to terminate mother's parental rights to children. The Separate Juvenile Court, Lancaster County, Thomas B. Dawson, J., granted motions. Mother appealed.
*Holding: The Supreme Court, Miller-Lerman, J., held that:
(1) statute governing termination of parental rights of non-Indian children did not violate mother's right to equal protection by requiring lesser "clear and convincing" burden of proof than the Nebraska Indian Child Welfare Act (NICWA);
(2) juvenile court was not divested of jurisdiction to terminate mother's parental rights to child in separate case involving mother during pendency of appeal of order terminating father's parental rights to child;
(3) evidence supported adjudication of child as lacking proper parental care by reason of fault or habits of mother, in that child's siblings had been previously adjudicated and mother had failed to correct conditions that had led to those adjudications; and
(4) termination of mother's parental rights was in children's best interests.
Affirmed.
Related Law Review Articles: In re Phoenix L., 270 NEB. 870, 708 N.W.2D 786 (2006): an analysis of parental rights and the Nebraska Indian Child Welfare Act (Nebraska Law Review, Volume 86 (2007))
Subjects: Sovereign immunity -- Pueblo of San Juan, New Mexico; Sovereign immunity -- San Juan Gaming Commission (N.M.); Indian gaming -- Licenses; Revocation.
*Synopsis: Former executive director of tribal gaming commission brought action against tribe and gaming commission in connection with the revocation of his gaming license. The District Court of Rio Arriba County, Garcia, D.J., granted tribe's motion to dismiss. Plaintiff appealed.
*Holding: The Court of Appeals, Alarid,
Judge. held that tribe and commission did not waive tribal sovereign
immunity.
Affirmed.
Subjects: Mascots -- Lake County (Mont.); Middle schools -- Ronan (Mont.); Jurisdiction -- Montana.
*Synopsis: Citizen filed an appeal to the Lake County Superintendent of Schools, alleging that the use of the "Chief" and "Maiden" mascots created a hostile environment within the district. The County Superintendent issued limited order accepting jurisdiction, and the district appealed. The State Superintendent of Public Instruction reversed the County Superintendent's jurisdiction order. Citizen filed a petition for judicial review. The District Court of the Twentieth Judicial District, Lake County, Cause No. DV 2004-200, Deborah Kim Christopher, J., dismissed the petition for lack of jurisdiction, and citizen appealed.
*Holding: The Supreme Court, Brian Morris,
J., held that, by themselves, school district policies did not confer
jurisdiction on the County Superintendent of Schools to hear citizen's
claims.
Affirmed.
Subjects: Income tax -- Connecticut; Mashantucket Pequot Tribe of Connecticut -- Members -- Taxation -- Connecticut; United States. Mashantucket Pequot Indian Claims Settlement Act; Indian Country (U.S.) -- Defined.
*Synopsis: Taxpayer, an enrolled member of a federally recognized Indian tribe, filed tax appeal challenging assessment of state income tax on income she earned from tribal council while living on property located in area that was designated as private settlement lands pursuant to Mashantucket Pequot Indian Claims Settlement Act and that tribe purchased with nonsettlement moneys. The Superior Court, Judicial District of New Britain, Tax Session, Arnold W. Aronson, Judge Trial Referee, dismissed tax appeal. Taxpayer appealed.
*Holding: The Supreme Court, Katz, J., held that:
(1) the generally applicable definition of Indian country under federal law applied in determining whether property qualified as Indian country prior
to federal government taking it into trust as part of tribe's reservation, and
(2) property did not satisfy federal set-aside requirement for qualifying
as a dependent Indian community under federal statute defining Indian
country and, thus, taxpayer was not exempt from state income taxes.
Affirmed.
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