Indian Law Bulletins  |  State Courts  |  Archives October-December 2004

December

T.D. v. Department of Children and Family Services
890 So.2d 473, Docket No. 2D03-4893
District Court of Appeal of Florida, Second District, December 29, 2004.

Subjects: Parent and child (Law); Trials (Custody of children) -- Florida; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.

*Synopsis: Mother sought review of a final judgment of the Circuit Court, Pasco County, Linda H. Babb, J., that terminated mother's parental rights to her children.

*Holding: The District Court of Appeal, Casanueva, J., held that:
(1) provisions of federal Indian Child Welfare Act (ICWA) were not adequately invoked in termination of parental rights proceeding;
(2) issue of applicability of ICWA to termination of parental rights proceeding was not preserved for appellate review; and
(3) Department of Children and Family Services (DCFS), at initiation of proceedings, or trial court, when it first is involved, should inquire of parents or relatives to determine applicability of ICWA.
Affirmed.

Bercier v. Kiga
103 P.3d 232, Docket No. 31052-0-II
Court of Appeals of Washington, Division 2, December 21, 2004.

Subjects: Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana -- Members; Indian business enterprises -- On Indian reservations -- Puyallup Tribe of the Puyallup Reservation, Washington; Tobacco -- Taxation; Excise taxes -- Washington (State).

*Synopsis: (from the opinion) Alex Bercier appeals the trial court's dismissal of his declaratory judgment action. He argues he should be exempt from all Washington excise taxes and regulations because, as a member of the Fort Peck Indian Tribe who resides and sells tobacco products on the Puyallup Indian reservation, he is an Indian doing business on Indian trust land, entitled to exemptions under RCW 82.24.260, 82.24 .900, and 82.26.040. Holding that Bercier is not entitled to a tax exemption because he is not enrolled in the Puyallup Tribe on whose land he is doing business, we affirm.

*Holding: The Court of Appeals, Hunt, J., held that:
(1) plaintiff, as a nonmember of tribe on whose land he was operating, did not qualify for tobacco tax exemption, and
(2) claim for declaratory judgment was subject to dismissal for failure to meet declaratory relief requirements.

The Miccosukee Tribe of Indians v. Napoleoni
890 So.2d 1152, Docket No. 1D04-1774
District Court of Appeal of Florida, First District, December 15, 2004.

Subjects: Workers' compensation; Miccosukee Tribe of Indians of Florida; Jurisdiction -- Florida; Florida. Dept. of Labor and Employment Security; Sovereign immunity -- Miccosukee Tribe of Indians of Florida; Miccosukee Resort and Gaming Convention Center (Fla).

*Synopsis: (from the opinion) The Miccosukee Tribe of Indians (Tribe) seeks (1) a writ of certiorari to review a non-final discovery order in this workers' compensation action requiring a tribal official to appear for deposition; and (2) a writ of prohibition barring any further proceedings by the Florida Department of Labor, Division of Administrative Hearings, and the Judge of Compensation Claims (JCC) in this matter. We find that the JCC lacks subject matter jurisdiction, and therefore, we grant both a writ of certiorari quashing the discovery order and a writ of prohibition barring further proceedings.

*Holding: The District Court of Appeal, First District, Wolf, C.J., held that any purchase of workers' compensation policy was not express waiver of sovereign immunity, and thus JCC lacked jurisdiction to hear claim.

Family Independence Agency v. Boudrie
2004 WL 2883508, Docket No. 256051
Court of Appeals of Michigan, December 14, 2004.

Subjects: Parent and child (Law); Trials (Custody of children) -- Michigan; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Child abuse.

*Synopsis: (from the opinion) Respondent appeals as of right from the trial court order terminating her parental rights to the minor child under MCL 712A.19b(3)(b)(i), (g), (j) and (k).1 We affirm.

*Holding: not yet available

Carl N. v. State Department of Health and Social Services
102 P.3d 932, Docket No. S-11213
Supreme Court of Alaska, December 10, 2004.

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.

*Synopsis:Department of Health and Social Services petitioned for termination of parental rights to Indian child. The Superior Court, Third Judicial District, Anchorage, Sen K. Tan, J., terminated father's rights.

*Holding:The Supreme Court, Fabe , J., held that termination of parental rights was warranted.
Affirmed.

Building Inspector and Zoning Officer of Aquinnah v. Wampanoag Aquinnah Shelfish Hatchery Corp.
443 Mass. 1, 818 N.E.2d 1040, Docket No. SJC-09211
Supreme Court of Massachusetts, December 9, 2004

Subjects: Zoning law -- Massachusetts; Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts; Wampanoag Aquinnah Shellfish Hatchery Corporation; Zoning; Shellfish trade; Sovereign immunity -- Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts.

*Synopsis: Building inspector brought action against Indian tribe, seeking to enjoin tribe from constructing a shed and pier on tribal land in violation of zoning ordinance, and trust, which held property adjacent to tribal land, and community association intervened. The Superior Court Department, Dukes County, Richard F. Connon, J., granted tribe summary judgment. Building inspector applied for direct appellate review.

*Holding: Upon grant of application, the Supreme Judicial Court, Greaney, J., held that tribe had expressly waived its sovereign immunity with respect to municipal zoning enforcement. Vacated and remanded.

Related News Stories: Wampanoags plan appeal of state limit on sovereignty, (Indian Country Today) 12/23/04. Massachusetts High Court Rules Wampanoags Waived Sovereignty (Martha's Vineyard Gazette) 12/10/04

In the matter of Baby Boy L. v, Christopher Yancey
103 P.3d 1099, Docket No. 99,815
Supreme Court of Oklahoma, December 7, 2004

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; Adoption.

*Synopsis: Non-Indian mother sought termination of parental rights to Indian child and order of eligibility for adoption without Indian father's consent. The District Court, Cleveland County, Barbara Swinton, J., determined that the "existing Indian family exception" controlled the Indian child custody proceeding and the child was eligible for adoption without the consent of the father. The father appealed. The Court of Civil Appeals affirmed. Certiorari was Granted.

*Holding: The Supreme Court, Kauger, J. held that:
(1) the "existing Indian family exception" to application of Indian Child Welfare Act, if the proceeding does not involve the dissolution of an Indian family or the removal of custody from the Indian parent, is no longer viable, overruling In the Matter of S.C., 833 P.2d 1249; In the Matter of Adoption of Baby Boy D, 742 P.2d 1059; In the Matter of Adoption of D.M.J., 741 P.2d 1386, and
(2) applying state and federal Indian Child Welfare Acts was constitutional.
Court of Civil Appeals vacated; trial court reversed; cause remanded.

In the Matter of Baby Boy L.
103 P.3d 1099, Docket No. 99,815
Supreme Court of Oklahoma, Dec. 7, 2004

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; Non-Indians; Consent (Law).

*Synopsis: Non-Indian mother sought termination of parental rights to Indian child and order of eligibility for adoption without Indian father's consent. The District Court, Cleveland County, Barbara Swinton, J., determined that the "existing Indian family exception" controlled the Indian child custody proceeding and the child was eligible for adoption without the consent of the father. The father appealed. The Court of Civil Appeals affirmed. Certiorari was Granted.

*Holding: The Supreme Court, Kauger, J. held that:
(1) the "existing Indian family exception" to application of Indian Child Welfare Act, if the proceeding does not involve the dissolution of an Indian family or the removal of custody from the Indian parent, is no longer viable, overruling In the Matter of S.C. , 833 P.2d 1249; In the Matter of Adoption of Baby Boy D , 742 P.2d 1059; In the Matter of Adoption of D.M.J. , 741 P.2d 1386, and
(2) applying state and federal Indian Child Welfare Acts was constitutional.
Court of Civil Appeals vacated; trial court reversed; cause remanded.

November

McNally CPA'S & Consultants S.C. v. DJ Hosts, Inc.
692 N.W.2d 247, Docket No. 03-1159
Court of Appeals of Wisconsin, Nov. 24, 2004

Subjects: Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); D. J. Hosts, Inc. (Wis.); Commercial real estate -- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); Stocks -- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); Corporate debt; Sovereign immunity -- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); McNally CPA's & Consultants; Parties to actions.

*Synopsis: Accounting firm brought action for money owed against corporation after Indian tribe became corporation's sole shareholder. The Circuit Court for Dane County, Stuart A. Schwartz, J., dismissed action, and firm appealed.

*Holding: The Court of Appeals, Lundsten, J., held that:
(1) tribal immunity was not conferred on existing for-profit corporation when tribe purchased all of corporation's shares, and
(2) tribe was not a necessary party.
Reversed and remanded with directions.

Nelson M. v. State of Alaska
2004 WL 2694832, Docket Nos. S-11208, S-11236
Supreme Court of Alaska, Nov. 24, 2004

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.

*Synopsis: (from the opinion) This Indian Child Welfare Act parental termination case requires us to decide whether, as appellants contend, the superior court erred in finding that the state made active efforts to prevent the breakup of the Indian family and that termination was in the child's best interests. Because we conclude that the superior court did not clearly err, we affirm.

*Holding: not available

Citizens for Safety & Environment v. Washington State Dept. of Transportation
124 Wash.App. 1020, Docket No. 53116-6-I
Court of Appeals of Washington, Division 1, Nov. 22, 2004

Subjects: Citizens for Safety & Environment; Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Washington (State). Dept. of Transportation; Access rights -- Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Real property -- Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Environmental impact statements; Traffic estimation.

*Synopsis: (from the opinion) Citizens for Safety and Environment (Citizens) seeks to invalidate a permit issued by the Washington State Department of Transportation (Department) to the Muckleshoot Indian Tribe. The permit allows the Tribe to access its property and the White River Amphitheatre from State Route 164... In sum, the EIS traffic impact analysis was challenged, fully litigated, and found adequate by a federal court on the same grounds and utilizing the same standards applicable in state court under SEPA. We conclude that the doctrine of collateral estoppel bars Citizens' state claims. Because the collateral estoppel issue is dispositive, we do not address the remaining contentions of the parties.

*Holding: not available

Atwood v. Grand Casinos of Louisiana, Inc. et al
887 S0. 2d 634
Docket No.CA 04-715
Third Circuit Court of Appeal of Louisiana, Nov. 10, 2004

Subjects: Blackjack (Game); Cheating; Cardsharping; Libel and slander; Casinos -- Coushatta Tribe of Louisiana; Coushatta Tribe of Louisiana -- Officials and employees; Gambling on Indian reservations; Indian gaming -- Coushatta Tribe of Louisiana.

*Synopsis: Former blackjack dealer at tribal casino and patron brought defamation action against casino, director of surveillance for casino, tribal gaming commission investigator, and casino's insurer arising out of accusation that dealer and patron were cheating at blackjack. The Thirty-Third Judicial District Court, Parish of Allen, No. C-97-756, Joel G. Davis, J., sustained defendants' peremptory exception of nonjoinder. Dealer and patron appealed. The Court of Appeal, Jimmie C. Peters, J., 819 So.2d 440 reversed and remanded. The Thirty-Third Judicial District Court, John P. Navarre, J., granted summary judgment for defendants, and dealer appealed.

*Holding: The Court of Appeal, Saunders, J., held that: (1) material issue of fact as to whether, after dealer was terminated for card marking and other inappropriate behavior, tribal gaming commission investigator distributed to commission members in good faith letter indicating that playing cards were found to be marked precluded summary judgment for investigator, and (2) material issue of fact as to exactly what tribal casino's director of surveillance told director of table games at different casino about alleged cheating at tribal casino precluded summary judgment for director of surveillance, who raised defense of truth in defamation action. Reversed and remanded.

Welfare of the Children of C.V.
2004 WL 2523127, Docket No. A04-441
Court of Appeals of Minnesota, Nov. 9, 2004

Subjects: Leech Lake Band of Chippewa Indians, Minnesota; Deference to tribal courts -- Leech Lake Band of Chippewa Indians, Minnesota; 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.

*Synopsis: (from the opinion) Appellant Leech Lake Band of Ojibwe (the Band) argues that the district court abused its discretion by denying the Band's motion to transfer the permanency planning trial concerning C.V.'s nonenrolled-Indian children to the Leech Lake tribal court. Because the district court did not abuse its discretion, we affirm.

*Holding: not available

Dairyland Greyhound Park v. Doyle
2004 WL 2522611, Docket No. 03-0421
Court of Appeals of Wisconsin, Nov.4, 2004

Subjects: Gambling on Indian reservations -- Wisconsin; Indian gaming -- Wisconsin; Governors -- Wisconsin -- Powers and duties; Intergovernmental agreements -- Indian Country (Wisconsin).

*Synopsis: (from the opinion) Dairyland Greyhound Park, Inc., challenges the Governor's authority to extend eleven Indian gaming compacts. Pursuant to Wis. Stat. Rule 809.61 (2001-02), this court certifies the appeal in this case to the Wisconsin Supreme Court for its review and determination on a challenge to the Governor's authority to extend eleven Indian gaming compacts.

*Holding: not available

In re the Termination of parental rights to Daniel R.S.
690 N.W.2d 886 , Docket Nos. 04-1305, 04-1306
Court of Appeals of Wisconsin, Nov. 3, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- Wisconsin; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.

*Synopsis: (from the opinion) Shannon R. appeals orders terminating her parental rights to her children Darell and Daniel. Shannon argues: (1) the circuit court lost competency to proceed in Darell's case when it failed to hold the initial hearing within thirty days of the petition's filing, contrary to Wis. Stat. § 48.422(1); (2) her trial counsel was ineffective for failing to object to the jury instructions; (3) Brown County failed to properly notify Shannon of the conditions of Daniel's return, contrary to Wis. Stat. § 48.356; (4) the court erroneously admitted expert testimony by a tribal judge; (5) there was insufficient evidence to find serious emotional or physical damage to the children; and (6) the court erred when it refused to admit a psychologist's testimony. We disagree and affirm the orders.

*Holding: not available

October

Westly v. Superior Court of San Diego County
125 Cal.App.4th 907, Docket Nos. D045075, D045076
Court of Appeal, Fourth District, Division 1, California, Oct. 28, 2004

Subjects: Gambling on Indian reservations -- California; Indian gaming -- California; Disclosure in accounting -- Tribes -- California; Revenue -- Accounting -- Tribes -- California; California.

*Synopsis:(from the opinion)[T]he complaint alleges the tribes are not paying the agreed-upon share and the Controller, Attorney General and Gaming Control Commissioners are not fulfilling their statutory duties to collect or require the tribes to account for the money...We conclude the court abused its discretion in denying the protective orders on the record before it. Because there are no disputed factual issues, the legal error is clear and the matter should be expedited, a peremptory writ in the first instance is appropriate.

*Holding: The Court of Appeal, McConnell, P.J., held that Controller and Attorney General, as top government officials, were not subject to having their depositions taken.

Fair Political Practices Commissionv. Santa Rosa Indian Community of the Santa Rosa Rancheria
20 Cal.Rptr.3d 292, Docket No. C044555
Court of Appeal, Third District, California, Oct 27, 2004

Subjects: California. Fair Political Practices Commission; Santa Rosa Indian Community of the Santa Rosa Rancheria, California; California. Political Reform Act of 1974; Campaign funds; Disclosure in accounting -- Santa Rosa Indian Community of the Santa Rosa Rancheria, California; Sovereign immunity -- Santa Rosa Indian Community of the Santa Rosa Rancheria, California.

*Synopsis: Fair Political Practices Commission (FPPC) filed action against Indian Tribe for failure to comply with reporting requirements for campaign contributions contained in the Political Reform Act (PRA). The Superior Court of Sacramento County, No. 0AS04544, Joe S. Gray, J., entered order granting Tribe's motion to quash. Commission appealed.

*Holding: The Court of Appeal, Sims, J., held that doctrine of Indian tribal immunity did not bar the suit against the tribe, under state's right to ensure a republican form of government guaranteed by the United States Constitution. Reversed and remanded.

Joseph K. Lumsden Bahweting Public School Academy v. Sault Ste. Marie Tribe of Chippewa Indians
2004 WL 2387619, Docket No. 252293
Court of Appeals of Michigan, Oct 26, 2004

Subjects: Sault Ste. Marie Tribe of Chippewa Indians of Michigan; Joseph K. Lumsden Bahweting Public School Academy (Mich.); Charter schools -- Michigan; Land tenure -- Sault Ste. Marie Tribe of Chippewa Indians of Michigan; Building leases -- Sault Ste. Marie Tribe of Chippewa Indians of Michigan; Jurisdiction -- Michigan; Sovereign immunity -- Sault Ste. Marie Tribe of Chippewa Indians of Michigan.

*Synopsis: (from the opinion) Plaintiff appeals as of right an order granting summary disposition in favor of defendant and an order denying plaintiff's motion for a temporary restraining order/permanent injunction. The circuit court ruled that it lacked jurisdiction and that defendant was protected by sovereign immunity. Plaintiff is a Michigan charter school located on land owned by defendant and leased to plaintiff. The case arose from a dispute over an amendment to the lease covering the school building and the disposal of certain school property, specifically a classroom modular unit. We affirm.

*Holding:not available

In re Kenneth M et al
19 Cal.Rptr.3d 752, Docket No. C046285
Court of Appeal, Third District, California, Oct.15, 2004

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.

*Synopsis:After the Court of Appeal denied mother's writ petition challenging order denying her reunification services, mother's parental rights to two minor children were terminated in the Superior Court, Sutter County, Nos. DPSQ035884, DPSQ035885, Brian R. Aronson, J. Mother appealed.

*Holding: The Court of Appeal, Sims, Acting P.J., held that:
(1) mother was not entitled to reunification services even in absence of finding that she was perpetrator of physical abuse of one child, and
(2) denying mother psychological evaluation was not abuse of discretion. Conditionally reversed and remanded with directions.

In the Matter of the Guardianship of R.D.V.
2004 WL 2260291, Docket No. S-11335
Supreme Court of Alaska, Oct 6, 2004

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; Visitation rights (Domestic relations).

*Synopsis: Paternal aunt filed petition for appointment of guardian of minor. Individual, who was previously appointed as child's guardian, filed motion for return of custody. The Superior Court, Third Judicial District, Anchorage, John Reese, J., determined that individual should remain child's guardian. Aunt appealed.

*Holding: The Supreme Court held that denying aunt's request for guardianship of child did not violate statute addressing court appointment of guardian for child.
Affirmed.

In re Maule
97 P.3d 559 Docket No.250237
Court of Appeals of Michigan, Oct. 5, 2004

Subjects: Parent and child (Law); Trials (Custody of children) -- Michigan; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Law -- Michigan; Jurisdiction -- Michigan.

*Synopsis: Father's parental rights to Indian children were terminated by Thirteenth Judicial District Court, County of Yellowstone, G. Todd Baugh, P.J., and father appealed.

*Holding: The Supreme Court, W. William Leaphart, J., held that termination of father's parental rights was in best interests of children.
Affirmed.

 

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