*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 to children.
Reversed.
*Synopsis: Department of Human Services petitioned to terminate parental rights of father of minor Indian child, alleging father, who was not of Native American heritage, abandoned child. The Circuit Court, Kewaunee County, Keith A. Mehn, J., No. 2016TP7A, terminated father's parental rights and he appealed.
*Holdings: The Court of Appeals, Stark, P.J., held that provisions regarding damage to child from continued custody and active efforts to prevent breakup of family under state and federal ICWA were inapplicable.
Affirmed.
*Synopsis: Department of Family and Protective Services filed petition to terminate parental rights to child, who was member of Navajo Nation. After denying the Navajo Nation the right to intervene in the proceedings, the District Court, El Paso County, Yahara Lisa Gutierrez, J., terminated parental rights of both parents and ordered child to remain in foster home. The Navajo Nation formally intervened pursuant to the Indian Child Welfare Act (ICWA) and filed a motion requesting a placement hearing. Navajo Nation then filed notice of appeal.
*Holdings: The Court of Appeals, Ann Crawford McClure, C.J., held that:
1) Navajo Nation had standing to appeal under ICWA;
2) ICWA section allowing tribe to intervene in child custody proceedings for an Indian child preempted state rule requiring a written intervention pleading; and
3) evidence was sufficient to establish beyond a reasonable doubt that mother's continued custody of child was likely to result in serious emotional or physical damage to the child, and was not in the child's best interest.
Reversed and remanded.
*Synopsis: In dependency proceedings, maternal uncle appealed orders of the Superior Court, Mendocino County, Nos. SCUK-JVSQ-12-16629, SCUK-JVSQ-12-16630, SCUK-JVSQ-12-16631 & SCUK-JVSQ-12-16632, Cindee F. Mayfield, J., continuing the minors in long-term foster care
*Holdings: The Court of Appeal, Reardon, J., held that maternal uncle, whose Indian custodian status was revoked by mother, had no standing to appeal permanent plan orders.
Appeal dismissed.
*Synopsis: Department of Natural Resources (DNR) brought action against Indian tribe and timber and wood products located on tribe's land, seeking to recover termination severance tax that tribe allegedly owed under Forest Croplands Law after tribe's forest croplands contract with the State expired. The Circuit Court, Sawyer County, No. 2015CV171, John M. Yackel, J., granted tribe's motion to dismiss. DNR appealed
*Holdings: The Court of Appeals, Stark, P.J., held that:
1) tribe did not clearly and unequivocally waive its sovereign immunity with respect to DNR's claims, seeking to recover termination severance tax, by executing transfer of land ownership forms stating it agreed to comply with Forest Croplands Law, and
2) tribe's sovereign immunity prevented DNR from pursuing in rem claim against timber and wood products located on tribe's land in order to satisfy termination severance tax.
Affirmed.
*Synopsis: County Social Services filed petition to terminate mother's and father's parental rights to Native American children. The Juvenile Court, Grand Forks County, Northeast Central Judicial District, Jon J. Jensen, J., terminated father's parental rights, and father appealed.
*Holdings: The Supreme Court, Stacy J., Louser, District Court Judge, sitting for Jensen, J., disqualified, held that:
1) evidence supported findings that children were deprived, that deprivation would continue, and that father's continued custody would likely result in serious emotional or physical damage to children;
2) active efforts were made to provide remedial services and rehabilitative programs designed to prevent breakup of family, as prerequisite to termination of parental rights, under Indian Child Welfare Act (ICWA);
3) under ICWA, qualified expert testimony was required on whether father's continued custody of children was likely to result in serious emotional or physical damage to children.
Remanded.
*Synopsis: Department of human services moved for an allocation of parental responsibilities of two children from mother to children's aunt and uncle. The District Court, Mesa County, Valerie J. Robinson, J., entered an order allocating parental responsibilities, and did not address any applicability of the Indian Child Welfare Act (ICWA). Mother appealed.
*Holdings: The Court of Appeals held that:
1) proceeding for the allocation of parental rights to children from mother to children's aunt and uncle was a child custody proceeding within the meaning of ICWA, and
2) proceeding did not comply with ICWA notice requirements.
Remanded.
*Synopsis: Co-trustees brought declaratory action against Native American rights group regarding survey of land containing Native American mounds and sacred sites. The Circuit Court, Lafayette County, Dennis A. Rolf, J., granted summary judgment in co-trustees' favor, and Native American group appealed.
*Holdings: The Court of Appeals, Anthony Rex Gabbert, J., held that trust required survey of only known mounds and sacred sites.
Affirmed.
*Synopsis: Board responsible for overseeing irrigation districts challenged the constitutionality of a water compact entered into between tribes, State, and the United States. The 20th Judicial District Court, Lake County, James A. Manley, J., found that one provision was unconstitutional, but that it was severable from the remainder of the compact. Board appealed.
*Holdings: The Supreme Court, Mike McGrath, Chief Justice, held that:
1) challenge to the constitutionality of a water compact was justiciable, and
2) compact did not provide any new immunity to the State and thus Constitutional provision restraining legislature from asserting sovereign immunity did not apply.
Affirmed in part and reversed in part.
*Synopsis: Businessman brought action against Indian tribe, tribal officials, various companies owned by the tribal officials, oil and gas companies, and other private companies, alleging, inter alia, tortious interference with economic relations, extortion, violation of Utah Antitrust Act, and civil conspiracy. The Eighth District, Roosevelt, No. 130000009, Samuel P. Chiara, J., granted defendants' motions to dismiss. Businessman appealed.
*Holdings: The Supreme Court, Durham, J., held that:
1) tribe did not waive sovereign immunity;
2) tribal officials, in their official capacities, were not entitled to sovereign immunity on claims to enjoin actions that exceeded tribe's jurisdiction;
3) tribal officials were not protected by sovereign immunity when sued for damages in their individual capacities;
4) tribe was not a necessary party to businessman's action against tribal officials;
5) tribal exhaustion doctrine prevented state courts from reviewing businessman's claims against tribal officials;
6) businessman was not entitled to grant of untimely motion to file supplemental pleadings;
7) businessman failed to state claims against companies owned by tribal officials;
8) businessman failed to state claims against oil and gas companies;
9) there is no civil cause of action in Utah for extortion; and
10) state constitutional provision prohibiting “the exchange of black lists” was not self-executing.
Affirmed in part, vacated in part, and remanded.
*Synopsis: Indian tribe filed petition seeking recognition and enforcement of tribal court judgment that imposed civil penalty on owners of land located within tribe's reservation based on owners' failure to obtain permit for having docks and pilings on river as required by tribal statute and declared that tribe could remove the docks and pilings. The District Court, First Judicial District, Benewah County, Scott L. Wayman, J., determined that tribal judgment was valid and enforceable. Owners appealed.
*Holdings: The Supreme Court, Horton, J., held that:
1) tribal court judgment was not entitled to full faith and credit but was entitled to recognition and enforcement under principles of comity, overruling Sheppard v. Sheppard, 104 Idaho 1, 655 P.2d 895;
2) doctrine of exhaustion of tribal remedies was not applicable, and thus, owners were not precluded from challenging tribal court's jurisdiction to enter judgment;
3) tribal court had jurisdiction over non-member owners, as required for the court to enter judgment;
4) owners were afforded due process in tribal court, as required for recognition of tribal judgment through comity; and
5) penal law rule, under which courts of no country will execute the penal laws of another, precluded recognition of part of tribal court judgment that imposed civil penalty on owners.
Affirmed in part, reversed in part, and remanded.
Related News Stories: New precedent set for upholding Idaho tribal court decisions (The Seattle Times) 11/6/17
*Synopsis: Members of Indian tribe brought defamation action against tribal officials. The Superior Court, Lake County, No. CV415928, Richard C. Martin, J., dismissed action. Plaintiff members appealed.
*Holdings: The Court of Appeal, Siggins, J., held that action encroached on tribe's sovereignty and thus was barred by doctrine of sovereign immunity.
Affirmed.
*Synopsis: Former chief of police for tribal police department, who had pleaded guilty to conspiracy to defraud the United States by dishonest means by misusing federal funds granted to the department, brought action against city after he was told he could not run for city council, seeking declaration that state constitutional provision rendering a person convicted of a felony involving dishonesty, deceit, fraud, or breach of trust while employed in local, state, or federal government did not disqualify him. Former chief filed motion for summary disposition. The Circuit Court, Mackinac County, denied motion, declared him ineligible to run for city council, and dismissed his action with prejudice. Former chief appealed.
*Holdings: As a matter of first impression, the Court of Appeals held that constitutional provision applied to former police chief's employment with a federally recognized sovereign Indian tribe, and therefore, he was ineligible to run for city council.
Affirmed.
Related News Stories: Michigan appeals court classifies Sault Tribe government as 'local' in new decision (Indianz) 10/24/17
*Synopsis: Parents appealed from decision of the District Court, Montrose County, David S. Westfall, J., terminating their parental rights.
*Holdings: The Court of Appeals held that:
1) as issue of first impression, court must make another inquiry as to whether child is Indian child when termination of parental rights is sought, and
2) case would be remanded for the limited purpose of determining whether the child was an Indian child.
Remanded.
*Synopsis: Motorist and passenger brought action against truck driver and driver's employer, a casino and hotel owned by Indian tribe, raising negligence and wantonness claims and seeking compensation for injuries sustained in head-on collision with driver. The Elmore Circuit Court, CV-15-900057, entered summary judgment in favor of employer on basis of tribal sovereign immunity. Plaintiffs appealed.
*Holdings: The Supreme Court, Stuart, C.J., held that doctrine of tribal sovereign immunity did not apply to shield Indian tribe from tort claims brought by non-tribal plaintiffs.
Reversed and remanded.
*Synopsis: Nonmember patron brought action against Indian tribe that operated casino and various business entities owned by the tribe, alleging breach of contract and various tort claims arising out of disputed winnings from an electric bingo gaming machine. Defendants moved to dismiss, alleging the claims were barred by sovereign immunity and that tribe's court had exclusive jurisdiction of any claim. The Circuit Court, Montgomery County, No. CV–11–901485, granted the motion. Patron appealed.
*Holdings: The Supreme Court, Murdock, J., held that:
1) it would decline to decide whether casino was properly located on land considered Indian country; and
2) it would decline to decide whether dispute was a matter of internal or tribal relations or, alternatively, was a dispute specially consigned to the regulatory authority of a tribe by Congress.
Affirmed.
*Synopsis: Mother, as next friend of injured vehicle passenger, brought action against Indian tribe that operated casino and business entities wholly owned by the tribe, asserting claims under the Dram Shop Act. Defendants moved to dismiss the complaint, asserting, inter alia, they were protected by tribal sovereign immunity. The Circuit Court, Escambia County, No. CV–13–900081, granted the motion. Mother appealed. While the appeal was pending, passenger died as a result of his injuries.
*Holdings: The Supreme Court held that the doctrine of tribal sovereign immunity did not apply.
Reversed and remanded.
*Synopsis: The People brought action against cigarette seller operating on Indian land allotments, alleged violations of the tobacco directory law, California Cigarette Fire Safety and Firefighter Protection Act, state excise tax laws, and unfair competition law, and seeking injunctive relief and civil penalties. The Superior Court, Shasta County, No. 176689, Bradley L. Boeckman, J., entered judgment for the People and imposed total civil penalty of $765,000 as well as injunctive relief. Seller appealed.
*Holdings: The Court of Appeal, Nicholson, Acting P.J., held that:
1) California had jurisdiction over cigarette sales on Indian land allotments, and
2) uncontested findings of fact supported conclusion all 51,000 sales for which penalties were imposed occurred after seller was notified sales were illegal.
Affirmed.
*Synopsis: Non-Indian owner of land within reservation petitioned for adjudication of existing water rights. The Water Court, No. WC 2016-04, Russ McElyea, J., denied the petition. Owner appealed.
*Holdings: The Supreme Court, Beth Baker, J., held that:
1) water rights claims were recognized under state law, and
2) the Water Court lacked jurisdiction to adjudicate the claims.
Reversed and remanded with directions.
*Synopsis: Casino gaming company brought breach of contract action against Indian tribe stemming from a deal to develop a casino on tribal land. The Superior Court, El Dorado County, No. PC20070154, Nelson Keith Brooks, J., denied tribe's motion to dismiss for lack of subject matter jurisdiction as well as motion for summary judgment, and, following trial, entered judgment on jury verdict for company. Tribe appealed.
*Holdings: The Court of Appeal, Murray, J., held that:
1) court was required to determine threshold question of whether agreements were management contracts or collateral agreements to a management contract subject to the Indian Gaming Regulatory Act (IGRA);
2) agreements were “management agreements” within meaning of IGRA such that IGRA state court action; and
3) promissory note was a collateral agreement to a management contract within meaning of IGRA such that preemption applied.
Reversed and remanded with directions.
Related News Stories: Shingle Springs Band wins reversal of $30 million judgment in gaming dispute (Indianz) 9/18/17
*Synopsis: Child protection proceedings were initiated after mother's Indian children were alleged to have been abused and neglected. Children's tribe intervened in the proceedings. State then filed a motion to terminate mother's parental rights. Following a hearing, the Circuit Court, Washington County, Sandy Martinez, J., terminated mother's parental rights. Tribe appealed.
*Holdings: The Court of Appeals, Mary K. Hoff, J., held that:
1) Indian tribe had standing to appeal the judgment independently of mother;
2) alleged invalidity of mother's consent to termination of parental rights and trial court's alleged error in certifying child protection worker as an expert witness under the Indian Child Welfare Act (ICWA) did not result in manifest injustice, and thus plain error review was not appropriate; and
3) no manifest injustice resulted from alleged insufficiency under ICWA of the trial court's findings in support of the termination of parental rights, and thus plain error was not appropriate.
Affirmed.
*Synopsis: First Indian tribe brought action against second Indian tribe and two of its tribal officials after first tribe withdrew from consortium formed by second tribe to administer tribal transportation funds from federal government but second tribe failed to remit first tribe's funds as required by agreement. The Superior Court, First Judicial District, Juneau, No. 1JU-15-00625 Ci, Louis J. Menendez, J., granted second tribe's motion to dismiss based on sovereign immunity. First tribe appealed.
*Holdings: The Supreme Court, Bolger, J., held that:
1) tribal sovereign immunity is jurisdictional bar properly raised in motion to dismiss for lack of subject matter jurisdiction;
2) trial court did not abuse its discretion by denying jurisdictional discovery to first tribe;
3) Ex parte Young doctrine does not allow suit to proceed against tribal official based on contract claim merely because plaintiff seeks declaratory and injunctive relief; and
4) trial court did not have jurisdiction over first tribe's claims that officials were not protected by sovereign immunity because their actions were ultra vires.
Affirmed.
Related News Stories: Alaska Native tribes sovereign immunity upheld in ruling (Juneau Empire) 9/9/17
*Synopsis: Department of Social Services (DSS) filed a petition to terminate parental rights to child, who had been adjudicated an abused, neglected, and dependent juvenile. The District Court, Burke County, Burford A. Cherry, J., terminated father's parental rights, and he appealed.
*Holdings: The Court of Appeals, Bryant, J., held that father failed to meet his burden of showing that provisions of Indian Child Welfare Act (ICWA) applied.
Affirmed.
*Synopsis: Birth father, a member of a Native American tribe, moved to intervene in adoption matter after birth mother, a member of the same tribe, had executed a voluntary relinquishment of parental rights, in which she listed her brother-in-law as child's father, and adoption agency had received custody of the child. Following its initial granting of birth father's motion to intervene, the Third District Court, Salt Lake, Ryan M. Harris, J., denied on reconsideration birth father's motion to intervene and denied birth mother's motion to withdraw her consent to the termination of her parental rights. Birth father appealed.
*Holdings: The Supreme Court, Himonas, J., held that:
1) birth father was a parent under the Indian Child Welfare Act (ICWA) and had right to notice and to intervene in the adoption proceedings;
2) birth father had custody of child under the ICWA;
3) adoption proceedings were involuntary, not voluntary, as to birth father; and in an opinion by Lee, Associate C.J.,
4) trial court's order accepting birth mother's consent to child's adoption under the ICWA and terminating her parental rights was not properly presented to the Supreme Court for review; and
5) any defect in the timing of birth mother's consent to adoption of child did not deprive trial court of subject-matter jurisdiction.
Reversed and remanded.
*Synopsis: Department of Child Safety (DCS) petitioned to terminate mother's parental rights to child who was a purported Indian child based on the self-report of alleged father who refused to participate in paternity testing. The Superior Court, Maricopa County, No. JD527671, James T. Blomo, J., terminated rights. Mother appealed.
*Holdings: The Court of Appeals, Thumma, J., held that:
1) evidence supported finding that termination of mother's parental rights was in the child's best interests, and
2) Department was required to provide proper notice under Indian Child Welfare Act (ICWA) after mother testified as to child's potential status as an Indian child through maternal lineage.
Appeal stayed; jurisdiction revested in the Superior Court.
*Synopsis: The State petitioned to terminate mother's parental rights to child. The Juvenile Court, St. George Department, No. 1032776, Paul E. Dame, J., terminated parental rights. Mother appealed.
*Holdings: The Court of Appeals, Mortensen, J., held that:
1) the placement of child with a non-Native American foster family did not violate the Indian Child Welfare Act (ICWA), and thus the trial court could consider the bond child had with foster family as grounds for good cause to depart from the ICWA placement preferences, and
2) the trial court was not required to provide special weight to the testimony of mother's expert.
Affirmed.
*Synopsis: Department of Health and Human Services (DHHS) petitioned to remove Native American children from Native American mother's care. After one child was voluntarily placed with father, the Kent Circuit Court, Family Division, ordered the other child placed with father, and mother appealed.
*Holdings:The Court of Appeals, Swartzle, J., held that:
1) although appeal from trial court's decision was moot since children had been returned to mother, the capable of repetition, yet evading review exception to mootness applied;
2) term “removed” means the instance when a court orders that a child be physically transferred or moved from the care and residence of a parent or custodian to the care and residence of some other person or institution, as that term is used in Michigan Indian Family Preservation Act (MIFPA);
3) trial court “removed” child from mother's home when court issued order moving child's residence to his father's home, so as to trigger protections of MIFPA; and
4) child was not “removed” from the care and residence of mother, so as to trigger statutory protections under MIFPA, when mother voluntarily placed child with her father.
Affirmed in part, vacated in part, and remanded.
*Synopsis: Indian tribe's former attorneys brought action against tribe alleging one count of civil remedies for criminal practices and four counts of malicious prosecution. The Circuit Court, Miami–Dade County, John W. Thornton, Jr., J., denied tribe's motion to dismiss. Tribe appealed.
*Holdings: The District Court of Appeal, Luck, J., held that:
1) tribe's limited waiver of sovereign immunity in previous case did not extend beyond that case to subsequent lawsuit involving tribe's conduct over a five-year period, and
2) tribe's waiver of sovereign immunity in four prior lawsuits did not extend to subsequent lawsuit against tribe for malicious prosecution, even though the subsequent case was related and arose out of the same facts.
Reversed and remanded with instructions.
*Synopsis: State filed a petition to find child to be a child in need of care, and later, for termination of mother's and father's parental rights. The Meade District Court, Van Z. Hampton, J., terminated each parent's parental rights. Parents appealed.
*Holdings:The Court of Appeals, Hill, J., held that:
1) sufficient evidence supported trial court's findings that father was unfit to care for child and it was in the best interests of the child to terminate father's parental rights;
2) sufficient evidence supported trial court's findings that mother was unfit to care for child and it was in the best interests of the child to terminate mother's parental rights; and
3) counsel's deficient performance did not prejudice mother.
Affirmed in part and remanded with directions.
Legal Topics: Burial Sites
*Synopsis: In child protection proceeding, the Superior Court, Third Judicial District, Anchorage, Andrew Guidi, J., terminated father's parental rights to child, who was an Indian child under the Indian Child Welfare Act (ICWA). Father appealed.
*Holdings: The Supreme Court, Bolger, J., held that:
1) evidence supported finding that father failed to remedy his harmful conduct;
2) evidence supported finding that allowing father visitation with child was not in child's best interests;
3) evidence supported finding that Office of Children's Services (OCS) made active but unsuccessful efforts to prevent breakup of Indian family; and
4) evidence supported finding that termination of father's parental rights was in child's best interests.
Affirmed.
*Synopsis: State filed motion to terminate parental rights. The Kiowa District Court, Sidney R. Thomas, J., terminated parental rights of both mother and father. Parents appealed.
*Holdings: The Court of Appeals, Leben, J., held that:
1) sufficient evidence supported trial court's determination that if children continued in their parents' custody, serious emotional or physical harm would be likely to result;
2) doctor who testified in support of conclusion that continued parental custody would be likely to result in serious emotional or physical harm to Indian children was a qualified expert witness;
3) state used active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the family; and
4) District Court's error of, without qualified expert testimony, determining that children were in need of care and ordering that they remain out of their parents' custody was harmless error.
Affirmed.
*Synopsis: Following termination of parental rights with respect to a child, who was an eligible member of an Indian community, the community moved, pursuant to the Indian Child Welfare Act (ICWA), for an order transferring jurisdiction of the remaining proceedings to tribal court. The Superior Court, Maricopa County, No. JD528014, Karen L. O'Connor, J., denied the motion. The community appealed. The Court of Appeals, Winthrop, J., 240 Ariz. 385, 379 P.3d 1016, affirmed and found that ICWA did not allow transfer to tribal court of state preadoptive and adoptive placement proceedings occurring after parental rights were terminated. The community's application for further review was granted.
*Holdings: The Supreme Court, Bales, C.J., held that:
1) ICWA provision, setting forth presumption that foster care placement and termination of parental rights actions involving Indian children not domiciled within Indian reservation should be transferred from state to tribal court, did not govern community's motion to transfer adoptive placement proceedings to tribal court;
2) ICWA provision did not prohibit state courts from transferring preadoptive or adoptive placement actions to tribal courts, although provision did not govern the transfer of such actions; and
3) community did not impliedly waive its right to seek transfer of adoptive proceeding by not seeking transfer until after parental rights were terminated.
Opinion of Court of Appeals vacated.
Related News Stories: Arizona Supreme Court limits rights of tribes to intercede in adoption cases (Arizona Capitol Times) 6/13/17, Gila River Indian Community weighs options after losing Indian Child Welfare Act case (Indianz) 8/15/16
*Synopsis: Foster mothers 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 consent to termination of rights. The Macomb Circuit Court, No. 2012-000291-NA, denied father's motion to withdraw consent, and the Oakland Circuit Court, No. 2015-837756-AM, denied foster mothers' petition to adopt. Foster mothers and father appealed.
*Holdings: The Court of Appeals held that:
1) Michigan Children's Institute (MCI) lost any authority to withdraw consent to adoption of child, who was committed to MCI, by foster mothers, after circuit court terminated MCI's rights and entered order placing child with foster mothers;
2) any power to withdraw consent to an adoptive placement, as provided by the Michigan Indian Family Preservation Act (MIFPA), is only accorded to parents, not to an Indian custodian;
3) mere fact that tribe had an interest in placement of Indian children, under Indian Child Welfare Act and MIFPA, did not, on its own, confer any statutory right to tribe to withdraw consent to adoption of child; and
4) biological father could not rely on MIFPA to withdraw release of parental rights executed pursuant to Adoption Code.
Affirmed in part, reversed in part, vacated in part, and remanded.
*Synopsis: Security company brought action against Indian tribe, alleging breach of contract. Following judgment in favor of company, the Supreme Court, Suffolk County, Molia, J., denied tribe's postjudgment motion to dismiss for lack of subject matter jurisdiction. Tribe appealed.
*Holdings: The Supreme Court, Appellate Division, held that tribe did not express unequivocal waiver of sovereign immunity in contract.
Reversed.
*Synopsis: In child abuse and neglect case, motions were filed to transfer the jurisdiction of case to Indian tribe. The Circuit Court of the Seventh Judicial Circuit, Pennington County, Robert Mandel, J., denied the motions without a hearing and terminated mother's parental rights. Mother appealed.
*Holdings: The Supreme Court, Gilbertson, C.J., held that trial court was required to conduct an evidentiary hearing on Indian tribe's petition to transfer child abuse and neglect case to the tribe.
Reversed and remanded.
*Synopsis: Department of Health and Human Services petitioned for termination of mother's parental rights to child, who qualified as Indian child under the Indian Child Welfare Act (ICWA). The 13th Judicial District Court, Yellowstone County, No. DN 14-142, Mary Jane Knisely, J., terminated mother's parental rights. Mother appealed only with respect to child's placement.
*Holdings: The Supreme Court, James Jeremiah Shea, J., held that mother effectively divested herself of any standing to participate in child's placement by appealing only placement of child, while foregoing appeal of termination of parental rights.
Affirmed.
*Synopsis: County Department of Social Services filed petition to terminate parental rights of parents to children, who had been adjudicated dependent and neglected. The District Court, Chaffee County, Patrick W. Murphy, J., terminated parental rights, and appeal was taken.
*Holdings:The Court of Appeals, Freyre, J., held that:
1) as matter of apparent first impression, Department could not rely on its Indian Child Welfare Act (ICWA) inquiries in a prior case involving same parents and one of the same children to satisfy its obligation to make continuing inquiries as to any possible Indian heritage of children in new case;
2 in the absence of findings by the trial court, appellate court was unable to determine the basis for the trial court's conclusion that ICWA did not apply; and
3) evidence supported the trial court's finding that mother's conduct or condition would not change within a reasonable time.
Reversed and remanded.
*Synopsis: Office of Children's Services (OCS) filed petition to terminate father's parental rights to Native American child adjudicated as child in need of aid. The Superior Court, Third Judicial District, Anchorage, Andrew Guidi, J., declined to terminate parental rights, but instead established long-term guardianship over child placed with foster family out-of-state. Father appealed.
*Holdings: The Supreme Court, Maassen, J., held that:
1) superior court had statutory authority to establish long-term guardianship over child after it declined to terminate father's parental rights;
Affirmed.
2) regulation prohibiting agency from placing child in guardianship without evidence that parental rights have been terminated or suspended did not apply;
3) long-term guardianship was not de facto termination of father's parental rights that failed to comply with Indian Child Welfare Act (ICWA);
4) active efforts were made to provide remedial and rehabilitative services designed to prevent breakup of family, as prerequisite to foster care placement/guardianship under ICWA;
5) 4 active efforts were made to provide remedial and rehabilitative services designed to prevent breakup of family, as prerequisite to foster care placement/guardianship under ICWA;
5 determination that father, who was convicted sex offender, posed significant risk of re-offending and that risk encompassed child, was not supported by expert testimony;
6) evidence supported finding that father was unable to meet child's caregiving needs, and thus, that father's continued custody of child was likely to result in serious emotional or physical harm;
7) evidence supported finding that long-term guardianship under current foster family placement was in child's best interest.
Vacated; remanded.
*Synopsis: Attorney General filed petition seeking an opinion as to the validity of a proposed citizen initiative petition, titled Voter Control of Gambling in Florida, which would require "casino gambling," as defined by the proposal, to be authorized only through the citizens' initiative process.
*Holdings: The Supreme Court held that:
1) petition satisfied state constitutional single subject requirement;
2) proposal's ballot title and summary provided fair notice of the content of the proposed amendment to voters as required by statute; and
3) petition's financial impact statement, though indefinite, complied with legal requirements.
Initiative approved for placement on ballot.
*Synopsis: County health and human services agency filed dependency petitions pertaining to mother's two minor children. After declaring children dependents of the court and terminating mother's reunification services, the Superior Court, San Diego County, No. NJ14573AB, Michael J. Imhoff, Commissioner, terminated mother's parental rights and selected a permanent plan of adoption for each child. Mother appealed.
*Holdings: The Court of Appeal, Aaron, J., held that:
1) Indian Child Welfare Act's (ICWA) inquiry and notice provisions did not apply, and
2) agency did not abdicate its notice and inquiry responsibilities under ICWA by placing burden on mother to provide further information regarding child's heritage.
Affirmed.
*Synopsis: Following jury trial in dependency and neglect proceeding, the Juvenile Court, City and County of Denver, No. 16JV510, D. Brett Woods, J., adjudicated child dependent and neglected and then held dispositional hearing. Mother appealed.
*Holdings: The Court of Appeals, Furman, J., held that:
1) trial court was required to comply with notice requirements of Indian Child Welfare Act (ICWA) even though mother did not state that child was member of tribe or that mother was member of tribe, and
2) for the adjudicatory hearing in a dependency and neglect proceeding, the State is only required to prove the allegations set forth in the petition by a preponderance of the evidence in all adjudications, whether Indian or non-Indian children.
Reversed and remanded with directions.
Related News Stories: Colorado Court of Appeals: dependency and neglect court should have followed ICWA's notice requirements (Legal Connection) 3/31/17
*Synopsis: Prisoner filed petition for writ of habeas corpus under Religious Land Use and Institutionalized Persons Act (RLUIPA), challenging prison's prohibition on the use of straight tobacco during prisoners' Native American religious ceremonies. The Superior Court denied petition. Prisoner filed a new petition in the Court of Appeal. The Court of Appeal issued an order to show cause returnable in the Superior Court. The Superior Court, Imperial County, No. EHC01917, Raymond A. Cota, J., granted petition. Department of Corrections and Rehabilitation appealed.
*Holdings: The Court of Appeal, O'Rourke, Acting P.J., held that:
1) trial court was required to hold an evidentiary hearing and consider evidence on the disputed factual issues, and
2) RLUIPA entitled prisoner to use straight tobacco during ceremonies only if prison's prohibition on straight tobacco substantially burdened prisoner's religious exercise and was not the least restrictive means of furthering a compelling governmental interest.
Reversed and remanded with directions.
*Synopsis: Confederated tribes and bands of Indian nation appealed decision of the Director of the State Department of Licensing that tribe's right to travel on highways did not preempt state fuel taxes. The Superior Court, Yakima County, No. 14-2-03851-7, Michael G. McCarthy, J., reversed. Department appealed.
*Holdings: The Court of Appeal, O'Rourke, Acting P.J., held that:
The Supreme Court, Johnson, J., held that tribes were entitled under treaty to import fuel without holding importer's license and without paying state fuel taxes.
Affirmed.
Related News Stories: High Court takes up Native American tax case (Courthouse News Service) 6/25/18, Why a tribal treaty rights case in Washington will likely end up in front of the U.S. Supreme Court (Inlander) 5/24/18
*Synopsis: Maternal relative filed custody petition against paternal relative, seeking custody of three Indian children after father allegedly killed their mother and seeking to vacate Texas order that awarded custody of the children to paternal relative. The Superior Court, Fourth Judicial District, Fairbanks, No. 4FA-14-03084 CI, Michael A. MacDonald, J., dismissed case and ceded jurisdiction to Texas. Maternal relative appealed.
*Holdings: The Supreme Court, Bolger, J., held that:
1) dispute between maternal relative and paternal relative as to who should have custody of three Indian children was child custody proceeding involving Indian children, and thus, Indian Child Welfare Act (ICWA) applied to the proceeding;
2) protection from domestic violence factor favored Alaska, and thus, trial court abused its discretion by minimizing importance of protecting Indian children from father's alleged domestic violence when declining to exercise its jurisdiction over child custody proceeding; and
3) nature and location of evidence factor favored Alaska, and thus, trial court abused its discretion by minimizing evidence required to resolve domestic violence and ICWA issues when declining to exercise its jurisdiction over child custody proceeding.
Vacated and remanded.
*Synopsis: Property owners brought action against Indian tribe, which owned land adjacent to owners' property, seeking to quiet title to property that owners claimed to have acquired through adverse possession before original owner sold adjacent property to the tribe. Tribe moved to dismiss for lack of subject matter jurisdiction based on tribe's sovereign immunity. The Superior Court, Skagit County, Dave Needy, J., denied motion, and Susan K. Cook, J., granted summary judgment to property owners. Tribe moved for direct discretionary review, and the Supreme Court accepted.
*Holdings: The Supreme Court, Johnson, J., held that tribe did not have interest in disputed property, and thus, tribe's sovereign immunity presented no barrier to the in rem adverse possession proceeding.
Affirmed.
Related News Stories: Justices put decision on land dispute with tribe (Courthouse News Service) 5/21/18, U.S. Supreme Court case could impact Cayuga Nation and Cayuga County municipalities (Auburn Pub) 3/3/18, Tribes see continued challenges as more cases head to highest court (Indianz) 2/21/18, Justices agree to settle issue of tribal sovereignty in property cases (Courthouse News) 12/11/17. Supreme Court shakes up docket by accepting sovereignty case at request of tribe. (Indianz) 12/11/17, Washington Supreme Court rejects sovereign immunity defense in quiet title action (National Law Review) 3/21/17
*Synopsis: Taxpayer brought declaratory judgment action alleging that State of New York ceded its taxation authority to the federal government by entering into the settlement agreement with Indian tribe, thereby violating State Constitution. The Supreme Court, Oneida County, Bernadette T. Clark, J., dismissed action. Taxpayer appealed.
*Holdings: The Supreme Court, Appellate Division, held that State did not violate provision of State Constitution that prohibited State from surrendering or contracting away its power of taxation.
Affirmed.
*Synopsis: Owners of terminals for storing petroleum products applied for substantial shoreline development permit (SSDP) based on plans to expand their operations. After the Department of Ecology (DOE) and the city issued mitigated determinations of nonsignificance (MDNS) and permits, a Native American tribe and citizens groups appealed. The Shoreline Hearings Board granted motions for partial summary judgment filed by tribe, citizens group, and owners. Tribe and citizens group appealed to the Court of Appeals, which accepted direct review. The Court of Appeals, Johanson, C.J., 190 Wash.App. 696, 360 P.3d 949, affirmed Board's grant of summary judgment. Tribe and citizens group sought review by Supreme Court, which was granted.
*Holdings: As matters of first impression, the Supreme Court, Owens, J., held that:
1) owners' proposed expansion projects, which would facilitate the storage of additional fuel products that would arrive by train or truck and depart by ocean-bound ship, triggered review of owners' permit applications under Ocean Resources Management Act's (ORMA) statutory framework;
2)owners' proposed expansion projects qualified as "ocean uses" as defined in DOE's regulation implementing ORMA;
3) owners' proposed expansion projects qualified as "transportation" as defined in DOE's regulation implementing ORMA; and
4) owners' proposed expansion projects qualified as "coastal uses" as defined in DOE's regulation implementing ORMA.
Reversed and remanded.
Related News Stories: Quinault Indian Nation wins... again (Native News Online) 6/2/17
*Synopsis: Ex-husband, who was an Indian parent, brought private severance proceeding, seeking to sever parental rights of ex-wife, who was a non-Indian parent, alleging abandonment and neglect. Indian tribe intervened in case. The Superior Court, La Paz County, Douglas Camacho, Judge Pro Tempore, granted ex-wife's motion to dismiss because it found ex-husband had not offered sufficient evidence to prove unsuccessful active efforts to prevent breakup of the family. Children appealed.
*Holdings: The Court of Appeals, Johnsen, J., held that:
1) Indian Child Welfare Act (ICWA) applies to a private termination of parental rights proceeding;
2)ICWA applied to private severance proceeding brought by ex-husband; and
3) evidence was sufficient to support finding that any active efforts to encourage ex-wife to address her drug issues had been successful, as required by ICWA.
Affirmed.
Related News Stories: New Indian Child Welfare Act challenges on the horizon (JD Supra) 2/26/18, ICWA race-based challenge rejected by the Supreme Court (The National Law Review) 11/30/17, Supreme Court won't take up race-based challenge to Indian Child Welfare Act (Indianz)10/30/17
*Synopsis: The Department of Human Services (DHS) petitioned to terminate mother and father's parental rights to Indian child. The Circuit Court, Douglas County, Ann Marie Simmons, J., terminated parental rights. Parents appealed.
*Holdings: The Court of Appeals, Flynn, J., held that:
1) DHS made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, as required under Indian Child Welfare Act (ICWA);
2) DHS' active efforts were unsuccessful; and
3)expert testimony supported finding that parents' custody of child would result in serious emotional or physical damage.
Affirmed.
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