Native American Rights Fund, National Indian Law Library, Indian Law Bulletins, State Courts, 2007

Indian Law Bulletins | State Courts | Archives 2007

December

Cherino v. Cherino
176 P.3d 1184, Docket No. 26,970
Court of Appeals of New Mexico, December 18, 2007

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; Parental rights -- Termination.

*Synopsis: Parents appealed the order of the Separate Juvenile Court, Douglas County, Christopher Kelly, J., that terminated their parental rights.

*Holding: The Court of Appeals, Inbody, C.J., held that juvenile court's refusal to rule on the motion to transfer case to tribal court before proceeding with termination of parents' rights to Indian child was erroneous and an abuse of discretion.
Vacated and dismissed in part, and in part reversed and remanded with directions.

In re Lawrence H.
743 N.W.2d 91, Docket No. A-07-592
Court of Appeals of Nebraska, December 11, 2007

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; Jurisdiction -- Transfer -- Omaha Tribe of Nebraska.

*Synopsis: Parents appealed the order of the Separate Juvenile Court, Douglas County, Christopher Kelly, J., that terminated their parental rights.

In re J.C.T.
176 P.3d 726, Docket No. 06SC780
Supreme Court of Colorado, En Banc, December 3, 2007

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 -- Transfer -- Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota; Guardianship and ward; Jurisdiction -- Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.

*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. The Court of Appeals, 155 P.3d 452, vacated and remanded. GAL petitioned for a writ of certiorari.

*Holding: The Supreme Court, Mullarkey, J., held that:
(1) probate court was not, in directing GAL to find a permanent guardian for child or to consider the potential for child's eventual adoption, conducting a de facto adoption proceeding within exclusive jurisdiction of juvenile court, and
(2) the probate court's appointment of itself as guardian for child was not improper.
Reversed and remanded.

November

In re the General Adjudication of All Rights to Use Water in the Gila River System and Source
173 P.3d 440, Arizona Supreme Court No. WC-07-0002-IR
Supreme Court of Arizona, November 30, 2007

Subjects: Water rights -- Tohono O'odham Nation of Arizona; United States. Arizona Water Settlements Act; Water rights -- Pascua Yaqui Tribe of Arizona; 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: Following rejection of objections to settlement agreement regarding water use rights affecting tribal interests in the Gila River System, as filed by Pascua Yaqui Tribe, the Superior Court, Maricopa County, No. WC-07-0002-IR, Eddward Ballinger, Jr., J., judgment and decree approving the settlement. The Tribe and the settling parties sought interlocutory review.

*Holding: Accepting review, the Supreme Court, sitting en banc, Michael D. Ryan, J., held that:
(1) special order was not invalid insofar as it restricted the Superior Court from considering constitutional objections raised by the Tribe;
(2) the Superior Court did not violate the Tribe's due process rights by preventing it from proving material harm;
(3) the Superior Court decision not to consider objections raised by Tribe did not conflict with federal law concerning adjudication of water rights; and
(4) parties to the settlement met their burden of proof, warranting approval of the settlement.
Affirmed.

In re A.W.
741 N.W.2d 793, Docket No. 06-1074
Supreme Court of Iowa, November 30, 2007

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; Child in need of aid -- Nebraska; Intervention -- Winnebago Tribe of Nebraska; Indians of North America -- Defined; Iowa. Indian Child Welfare Act; Equality before the law; United States. Constitution. 14th Amendment.

*Synopsis: County attorney sought to terminate the parental rights of Indian mother and non-Indian father, and tribe moved to intervene under the Iowa Indian Child Welfare Act (Iowa ICWA). The District Court, Woodbury County, Brian L. Michaelson, Associate Juvenile Judge, granted motion to intervene. County attorney and guardian ad litem appealed, and the Attorney General moved to dismiss appeals.

*Holding: The Supreme Court, Hecht, J., held that:
(1) county attorney had no authority to represent State in appeal from juvenile court in child in need of assistance case;
(2) in a matter of first impression, county attorney could not challenge the constitutionality of legislative acts in court while representing the interests of the State;
(3) definition of “Indian child's tribe” as used in Iowa ICWA included tribes which identified a child as a child of the tribe's community;
(4) definition of “Indian child” in the Iowa ICWA violated the equal protection clause.
Reversed and remanded.

Related News Stories: Iowa court rules law defining Indian children is too broad (ICWA) (Associated Press) 11/30/07. Court tosses 'Indian child' definition (The Daily Iowan) 12/11/07.

In re Veronica G.
68 Cal.Rptr.3d 465, Docket No. A117131
Court of Appeal, First District, Division 3, California, November 27, 2007

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) -- United States.

*Synopsis: County human services agency filed juvenile dependency petitions on behalf of children. The Superior Court, San Mateo County, declared dependency as to both children. Mother and father appealed.

*Holding: The Court of Appeal, Horner, J., held that:
(1) substantial evidence supported trial court's jurisdictional finding that children were at a substantial risk of serious physical and emotional harm from mother and father, and
(2) failure to comply with notice requirements of Indian Child Welfare Act (ICWA) was not jurisdictional and did not require reversal of order.
Affirmed and remanded.

In re M.C.M.
180 P.3d 688, Docket No. 104075
Court of Civil Appeals of Oklahoma, Division No. 3, November 15, 2007 - Added 3/21/08

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; Notice (Law) -- United States; Parental rights -- Termination.

*Synopsis: Mother appealed from decision of the District Court, Pottawatomie County, John D. Gardner, J., granting judgment on a jury verdict to terminate her parental rights.

*Holding: The Court of Civil Appeals, Larry Joplin, P.J., held that:
(1) record contained competent, clear and convincing evidence to support jury's verdict terminating mother's parental rights; and
(2) testimony of the caseworkers constituted competent evidence supporting a conclusion that termination of mother's parental rights constituted the least restrictive means of protecting children from harm.
Affirmed and remanded.

Alaskans for a Common Language, Inc. v. Kritz
170 P.3d 183, Docket No. S-10590
Supreme Court of Alaska, November 2, 2007

Subjects: Language policy -- Alaska -- Officials and employees; English language -- Political aspects -- Alaska; English-only movement -- Alaska; Native language -- Alaska -- Protection; Freedom of speech -- Alaska; Due process of law; Equality before the law; Constitutional law -- Alaska; Constitutional law -- United States; Alaskans for a Common Language.

*Synopsis: Action was brought challenging constitutionality of the Official English Initiative (OEI), a successful ballot initiative adopting English as the state's official language and requiring its sole use in “all government functions and actions.” The Superior Court, Third Judicial District, Dillingham, Nos. 3DI-99-12 CI and 3AN-99-4488 CI, Fred Torrisi, J., declared the initiative void as violative of state constitutional free speech rights. Initiative sponsors appealed.

*Holding: The Supreme Court, Carpeneti, J., held that:
(1) OEI provision requiring the use of English by all government officers and employees in all government functions and actions violated free speech rights of government officers and employees and the recipients of their speech, and the rights of citizens to petition their government;
(2) same test for severability of statutes enacted by legislature would apply to enacted initiatives; and
(3) unconstitutional provision was severable from remaining provision that the English language shall be used in the preparation of all official public documents and records.
Affirmed in part, reversed in part, and remanded.

October

State of Nebraska v. Wabashaw
740 N.W.2d 583, Docket No. S-06-642
Supreme Court of Nebraska, October 26, 2007

Subjects: Treaties -- Dakota Indians; Robbery -- Indian Country (U.S.); Criminal jurisdiction -- Indian Country (U.S.); Criminal jurisdiction -- Nebraska.

*Synopsis: Defendant was convicted in jury trial in the District Court, Knox County, Patrick G. Rogers, J., of robbery and use of a firearm to commit a felony, and he appealed.

*Holding: The Supreme Court, Connolly, J., held that:
(1) regardless of whether defendant was Indian or non-Indian, Nebraska court had jurisdiction over defendant in prosecution of defendant for robbing gas station which was located in Indian country;
(2) State sufficiently proved that defendant was the same person as the individual who was previously convicted in a South Dakota robbery case; and
(3) defendant was not denied effective assistance of counsel because of an alleged conflict of interest.
Affirmed.

Meyer & Associates, Inc. v. Coushatta Tribe of Louisiana
965 So.2d 930, Docket No. CW 2006-1542
Court of Appeal of Louisiana, Third Circuit, October 24, 2007

Subjects: Contracts -- Coushatta Tribe of Louisiana; Exhaustion of tribal remedies; Jurisdiction -- Louisiana; Sovereign immunity -- Coushatta Tribe of Louisiana; Energy development -- Coushatta Tribe of Louisiana; Power-plants -- Coushatta Tribe of Louisiana; Joint ventures -- Coushatta Tribe of Louisiana; Meyer & Associates, Inc.

*Synopsis: After disputes arose in execution of joint venture contracts between Indian tribe and a general consulting engineering firm, which had contracted to provide professional services to tribe in connection with a capital improvement program it had instituted, tribe filed suit in its Tribal Court against engineering firm. Subsequently, firm filed suit in the trial court against tribe. The Fourteenth Judicial District Court, Parish of Calcasieu, No. 2006-2683, R. Richard Bryant, Jr., D.J., ruled that the exhaustion of tribal remedies doctrine did not apply and denied tribe's exception of lack of subject matter jurisdiction. Tribe filed writ application, urging that trial court erred in failing to stay this proceeding to allow Tribal Court the first opportunity to determine whether it validly waived its sovereign immunity and in finding that the trial court had subject matter jurisdiction.

*Holding: The Court of Appeal, Sullivan, J., held that doctrine of exhaustion of tribal remedies applied, and therefore, trial court proceedings would be stayed in order to allow Tribal Court to determine whether tribe waived its sovereign immunity.
Writ granted.

Foxworthy v. Puyallup Tribe of Indians Association
169 P.3d 53, Docket No. 36132-9-II
Court of Appeals of Washington, Division 2, October 16, 2007

Subjects: Drinking and traffic accidents -- On Indian reservations -- Puyallup Tribe of the Puyallup Reservation, Washington; Casinos -- Puyallup Tribe of the Puyallup Reservation, Washington; Liability (Law) -- United States; Bars (Drinking establishments) -- Law and legislation; Sovereign immunity -- Puyallup Tribe of the Puyallup Reservation, Washington.

*Synopsis: Motorist injured in automobile collision with intoxicated driver on Indian reservation brought action under Dram Shop Act against Indian tribe, as operator of casino that served alcohol to the intoxicated driver. The Superior Court, Pierce County, Susan K. Serko, J., dismissed action for lack of subject matter jurisdiction. Injured motorist appealed.

*Holding: The Court of Appeals, Hunt, J., held that as a matter of first impression, sovereign immunity insulated Indian tribe from private tort litigation under state dram shop statute.
Affirmed.

May v. State, Commercial Fisheries Entry Commission
168 P.3d 873, Docket No. S-12267
Supreme Court of Alaska, October 12, 2007

Subjects: Purse seining -- Licenses -- Alaska, Southeast; Fish and game licenses; Fishing -- Annette Islands Reserve (Alaska); Fisheries -- Alaska, Southeast; Alaska. Limited Entry Act; Fishing -- On or near Indian reservations -- Alaska; Equality before the law; Due process of law; Lawyers -- Fees.

*Synopsis: Commercial fisherman sought review of decision from the Commercial Fisheries Entry Commission (CFEC) finding fisherman ineligible to apply for a limited entry permit to roe herring purse seine fishery. The Superior Court, First Judicial District, Ketchikan, No. IKE-04-00582 CI, Trevor N. Stephens, J., affirmed the decision, and awarded CFEC a portion of its attorney fees. Fisherman appealed.

*Holding: The Supreme Court, Carpeneti, J., held that:
(1) CFEC regulations did not include certain tribal fishing waters within the geographical areas in which a commercial fisherman's past fishing activity would enable eligibility to apply for a limited entry permit to roe herring purse seine fishery;
(2) as an apparent matter of first impression, the CFEC was not collaterally estopped by a prior adjudicative decision from finding commercial fisherman ineligible to apply for a limited entry permit;
(3) the CFEC did not violate fisherman's right to equal protection;
(4) the CFEC did not violate fisherman's right to due process; and
(5) the Superior Court acted within its discretion in awarding CFEC partial attorney fees of 20%.
Affirmed.

State v. Losh
739 N.W.2d 730, Docket No. A06-1910
Court of Appeals of Minnesota, October 9, 2007

Subjects: Mille Lacs Band of Chippewa Indians -- Members; Jurisdiction -- Minnesota -- Itasca County; Traffic violations -- On Indian reservations -- Leech Lake Indian Reservation (Minn.).

*Synopsis: Defendant, an enrolled member of band of Indian tribe, was convicted in the District Court, Itasca County, Jon A. Maturi, J., of driving after revocation of driver's license, which occurred on reservation of another band of tribe. Defendant appealed.

*Holding: The Court of Appeals, Wright, J., held that district court had subject-matter jurisdiction over offense.
Affirmed.

September

Terry S. v. State of Alaska, Department of Health & Social Services, Office of Children's Services
168 P.3d 489, Docket No. S-12463
Supreme Court of Alaska, September 28, 2007

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; Child in need of aid; Guardianship and ward.

*Synopsis: The state Department of Health & Social Services, Office of Children's Services, filed a petition for guardianship, asking that Indian children's maternal grandmother be named the children's guardian following the death of children's mother and in light of allegations that father had sexually abused the eldest child. Consolidating the case with a child in need of aid (CINA) case regarding the children's custody, the Superior Court, Third Judicial District, Anchorage, Sharon L. Gleason, J., appointed the maternal grandmother guardian of the children, and subsequently ordered that father was not allowed visitation until he received sex offender treatment. Father appealed.

*Holding: The Supreme Court, Fabe, C.J., held that:
(1) the petition for guardianship did not give rise to a separate and distinct guardianship case so as to allow father to peremptorily disqualify judge;
(2) clear and convincing evidence supported finding that father's continued custody was likely to result in serious emotional or physical damage to children;
(3) the Superior Court acted within its discretion in denying father visitation until he demonstrated that he was successfully participating in sex offender treatment; and
(4) such visitation order was not a termination of father's parental rights.
Affirmed.

In re Jose C.
66 Cal.Rptr.3d 355, Docket No. F052049
Court of Appeal, Fifth District, California, September 26, 2007

*Synopsis: County filed dependency petition, and the Superior Court, Fresno County, No. 05CEJ300097-2, Jamileh Schwartzbart, Temporary Judge, entered order terminating mother's parental rights. Mother appealed.

*Holding: The Court of Appeal, Vartabedian, Acting P.J., held that minors were not Indian children under Indian Child Welfare Act (ICWA).
Affirmed.

People ex rel. J.O.
170 P.3d 840, Docket No. 07CA0643
Colorado Court of Appeals, Division V, September 20, 2007

*Synopsis: A motion to terminate parental rights was filed. The District Court, Jefferson County, Brian D. Boatright, J., terminated the parent-child relationship between parents and child. Mother appealed.

*Holding: The Court of Appeals, Dailey, J., held that:
(1) mother had standing to challenge compliance with the notice requirements of the Indian Child Welfare Act (ICWA), and
(2) notice provided to the Bureau of Indian Affairs (BIA) did not sufficiently comply with the ICWA.
Vacated; remanded with instructions.

State v. Wren
738 N.W.2d 378, Docket No. A06-1283
Supreme Court of Minnesota, September 13, 2007

Subjects: Jury selection; Testimony; Trials (Murder).

*Synopsis: Defendant was convicted in the District Court, Hennepin County, David Duffy, J., of two counts first-degree premeditated murder and one count of attempted first-degree murder. Defendant appealed.

*Holding: The Supreme Court, Lorie S. Gildea, J., held that:
(1) empaneling of anonymous jury did not violate defendant's right to presumption of innocence resulting in unfair prejudice;
(2) State's race-neutral reason for striking Kenyan prospective juror was not motivated by race;
(3) defendant failed to make prima facie case of Batson violation with respect to exercise of peremptory strike against Native American prospective juror;
(4) detective's testimony on redirect that witnesses were frightened was relevant to rebut testimony by detective on cross-examination that witnesses failed to identify defendant during statements to police;
(5) prosecutor engaged in misconduct by eliciting testimony from witness commenting on credibility of defendant and by referencing facts not in evidence during closing argument;
(6) incidents of prosecutorial misconduct were harmless beyond reasonable doubt;
(7) life sentences for first-degree premeditated murder and 200-month sentence for attempted first-degree murder did not violate defendant's right to jury trial; and
(8) direct appeal was not appropriate forum for defendant's equal protection challenge to qualification questionnaires presented to venire panel that was not reviewable on record.
Affirmed.

Swinomish Indian Tribal Community v. Western Washington Growth Management Hearings Board
166 P.3d 1198, Docket No. 76339-9
Supreme Court of Washington, En Banc, September 13, 2007

Subjects: Cities and towns -- Growth -- Washington (State) -- Thurston County; Population growth -- Washington (State) -- Thurston County; Fishes -- Habitat -- Conservation; Swinomish Indians of the Swinomish Reservation, Washington.

*Synopsis: Indian tribe and environmental advocacy group sought judicial review of two decisions of Western Washington Growth Management Hearings Board, the first of which was a compliance order that largely upheld county's effort to comply with Growth Management Act (GMA), with exceptions for enforcement of watercourse protection measures in critical areas and the need for more specificity in county's monitoring program and adaptive management process, and the second of which found that county had failed to correct the deficiencies identified in compliance order. The Superior Court, Thurston County, Richard D. Hicks, J., granted the motion of county, tribe, and advocacy group for certification for direct review by the Court of Appeals, and the Court of Appeals granted direct review. The Supreme Court accepted tribe's motion to transfer the consolidated appeal to the Supreme Court.

*Holding: The Supreme Court, Gerry L. Alexander, C.J., held that:
(1) "protection" of critical areas does not require enhancement or improvement of conditions in a critical area that is already in a degraded condition;
(2) county's "no harm" standard for anadromous fish habitat in agricultural areas satisfied "protection" requirement;
(3) county provided reasoned justification for its decision not to establish mandatory riparian buffers along streams and rivers on upland strip of land; and
(4) county was required to establish benchmarks for its salmon habitat monitoring program.
Board affirmed.

In re J.D.M.C.
739 N.W.2d 796, Docket No. 23998
Supreme Court of South Dakota, September 12, 2007

Subjects: Parent and child (Law); Trials (Custody of children) -- South Dakota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Domicile -- Defined; Jurisdiction -- Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, South Dakota ; Law -- Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, South Dakota -- Application -- Non-Indians; United States. Indian Civil Rights Act.

*Synopsis: Mother brought neglect petition against non-Native American father in tribal court. Tribal court entered emergency custody order, and then filed motion in Circuit Court to enforce order. Father filed motion for comity hearing and to invalidate order. The Fifth Judicial Circuit Court, Roberts County, Scott P. Myren, J., determined that tribal court had exclusive jurisdiction over proceedings and denied father's motion. Father appealed.

*Holding: The Supreme Court, Sabers, J., held that:
(1) reservation was not Native American child's "domicile" as required for tribal court to exercise exclusive jurisdiction over neglect proceedings;
(2) child was not ward of tribal court;
(3) personal service agreement between State and tribe did not confer jurisdiction on tribal court over neglect proceedings;
(4) tribal court's determination that it had personal jurisdiction over nonresident non-Native American father was not entitled to full faith and credit;
(5) father did not have sufficient minimum contacts with tribe to justify exercise of personal jurisdiction under Indian Civil Rights Act; and
(6) status exception to minimum contacts requirement did not apply to nonresident father in neglect proceedings involving child who did not reside nor was domiciled on reservation.
Reversed.

Related News Story: State high court rules tribe has no jurisdiction over father, child: Indian Child Welfare Act doesn't apply in the case, justices ruled (The Rapid City Journal) 9/14/07

In re Z. H.
740 N.W.2d 648, Docket No. 07-1048
Court of Appeals of Iowa, September 6, 2007

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.

*Synopsis: Father appealed decision of the District Court, Polk County, Louise Jacobs, J., terminating his parental rights.

*Holding: The Court of Appeals, Huitink, P.J., held that:
(1) Department of Human Services (DHS) made reasonable efforts at reunifying father with child;
(2) evidence supported finding that child could not be returned to father's care at the present time;
(3) termination of parental rights was in best interests of child; and
(4) father's vague statement about Native American ancestry did not trigger Indian Child Welfare Act (ICWA) notice requirements.
Affirmed.

Cates v. California Gambling Control Commission
65 Cal.Rptr.3d 513, Docket No. D048574
Court of Appeal, Fourth District, Division 1, California, September 6, 2007

Subjects: Revenue sharing -- Tribes -- California; Indian gaming -- California; Gambling on Indian reservations -- California.

*Synopsis: Former agent of California Division of Gambling Control brought taxpayer's action for injunctive and declaratory relief against California Gambling Control Commission and several State officials, seeking to compel defendants to discharge their statutory duty to collect money derived from gambling belonging to the State from various Indian tribes. After entering orders denying agent's motion to compel further responses to special interrogatories and requiring her to return confidential documents that she allegedly misappropriated from her former employer, the Superior Court, San Diego County, No. GIC821775, Patricia Y. Cowett, J., granted defendants summary judgment. Agent appealed.

*Holding: The Court of Appeal, McIntyre, J., held that:
(1) defendants' declaration did not establish that no delinquency in payment existed, and thus fact issue precluded summary judgment;
(2) fact issue remained whether tribes were calculating payments based on incorrect definition of “net win”;
(3) taxpayer was not entitled to tribes' specific financial information; and
(4) trial court had authority to require agent to return documents.
Orders affirmed; judgment reversed and remanded.

In re N.B.
2007 WL 2493906, Docket No. 06CA1325
Colorado Court of Appeals, Division VI, September 6, 2007

*Synopsis: Stepmother appealed from order of the District Court, Jefferson County, Brian D. Boatright, J., dismissing her petition to terminate mother's parental rights and to adopt child, who was an Indian child.

*Holding: The Court of Appeals, Webb, J., held that failure of stepmother to show that active efforts were made to prevent breakup of Indian family precluded termination of mother's parental rights through stepparent adoption.
Affirmed.

August

In re J.T.
65 Cal.Rptr.3d 320, Docket No. A117049
Court of Appeal, First District, Division 5, California, August 29, 2007

*Synopsis: Parents' parental rights to her three children were terminated by the Superior Court, Contra Costa County, Nos. J04-01835, J04-01836, J05-01104, Jill C. Fannin, J., after mother had identified her possible Indian heritage. Mother appealed.

*Holding: The Court of Appeal, Gemello, J., held that:
(1) Indian Child Welfare Act (ICWA) notice of child dependency proceedings that was sent to Bureau of Indian Affairs (BIA) rather than to all federally recognized tribes identified by mother was inadequate, and
(2) ICWA notice of dependency proceedings had to be addressed to tribal chairperson or designated agent for service.
Reversed and remanded.

In re M. M.
65 Cal.Rptr.3d 273, Docket No. A115771
Court of Appeal, First District, Division 5, California, August 28, 2007

*Synopsis: County department of health and human services initiated juvenile dependency proceeding, and Indian tribe filed notice of intervention and request to transfer jurisdiction to tribal court. The Superior Court, Humboldt County, No. JV050028, Marilyn B. Miles, J., set aside prior termination-of-parental-rights order and transferred the case to tribal court pursuant to the Indian Child Welfare Act (ICWA). Child appealed.

*Holding: Addressing an issue of first impression, the Court of Appeal, Needham, J., held that juvenile court's order transferring the dependency proceeding to the tribal court deprived California courts of jurisdiction over the case and, thus, precluded any appeal from the transfer order.
Appeal dismissed.

In re order to encapsulate Native American Indian gravesites in concrete and pave over with asphalt
250 S.W.3d 873, Docket No. M2006-01749-COA-R3-CV
Court of Appeals of Tennessee, August 27, 2007. Added 5/6/08

Subjects: Exhumation; Burial -- Tennessee -- Law and legislation.

*Synopsis: Following initial case, in which Native American individuals and a Native American alliance group brought action against the Commissioner of Transportation for injunctive relief, alleging that Department of Transportation's plans to encapsulate Native American graves discovered during road construction was violative of constitutional rights, was dismissed, the Native America plaintiffs filed a second petition in which they sought review of the Department's denial of declaratory relief. The Court of Appeals, 182 S.W.3d 333, affirmed the dismissal of the initial case under the mootness doctrine. The Chancery Court, Davidson County, Ellen Hobbs Lyle, Chancellor, then dismissed the second petition for declaratory relief. Native American plaintiffs appealed.

*Holding: The Court of Appeals, D. Michael Swiney, J., held that the Native American plaintiffs' claim for declaratory judgment was barred by application of res judicata.
Affirmed and remanded.

Alyssa B. v. Department of Health & Social Services, Division of Family & Youth Services
165 P.3d 605, Docket No. S-12410
Supreme Court of Alaska, August 17, 2007

*Synopsis: Department of Health and Social Services filed petition to terminate mother's parental rights to her child who had previously been adjudicated a child in need of aid (CINA), which adjudication was affirmed on appeal, 123 P.3d 646. The Superior Court, Third Judicial District, Palmer, Eric Smith, J., entered order terminating mother's parental rights. Mother appealed.

*Holding: The Supreme Court, Bryner, J., held that:
(1) child was not an Indian child under the Indian Child Welfare Act (ICWA);
(2) mother waived her right to change the judge by knowingly participating in earlier adjudication and disposition hearings before the same judge;
(3) mother could not raise claim of ineffective assistance against her advisory counsel after electing to proceed pro se;
(4) trial court did not violate mother's procedural due process rights by conducting termination hearing in her absence;
(5) trial court properly discounted the psychological evaluation given by mother's expert and gave more weight instead to the testimony of the Department's expert psychologist; and
(6) trial court's decision to terminate mother's parental rights was not impermissibly based on her mental illness alone.
Affirmed.

Commitment of Beaulieu
737 N.W.2d 231, Docket No. A07-496
Court of Appeals of Minnesota, August 14, 2007

Subjects: Sex offenders -- Members -- Red Lake Band of Chippewa Indians, Minnesota; Civil commitment of sex offenders -- Red Lake Band of Chippewa Indians, Minnesota; Jurisdiction -- Red Lake Band of Chippewa Indians, Minnesota; Jurisdiction -- Minnesota; Minnesota Commitment and Treatment Act.

*Synopsis: Member of Red Lake Band of Chippewa Indians, who was civilly committed as a sexually dangerous person pursuant to the Commitment and Treatment Act, filed petition for relief from judgment. The District Court, Beltrami County, granted the motion, concluding that State lacked both personal and subject-matter jurisdiction to civilly commit tribe member. State appealed.

*Holding: The Court of Appeals, Halbrooks, J., held that:
(1) State had personal jurisdiction to civilly commit tribe member, and
(2) State had subject-matter jurisdiction over the commitment of tribe member.
Reversed and remanded.

Related News Stories: State trumps tribe in sex offender case (Star Tribune) 8/14/07

Oneida Indian Nation of New York v. Pifer
840 N.Y.S.2d 672
Supreme Court, Appellate Division, Third Department, New York, August 9, 2007

Subjects: Real property -- Oneida Nation of New York -- Taxation -- New York (State) -- City of Sherrill; Tax exemption -- Oneida Nation of New York; Local taxation -- New York.

*Synopsis: Indian nation commenced seven combined actions and proceedings to enjoin county from assessing and taxing its land, and seeking declarations that its land was exempt from taxation and had no taxable value. The Supreme Court, Madison County, McDermott, J., denied nation's motion to discontinue, and nation appealed.

*Holding: The Supreme Court, Appellate Division, Kane, J. held that after having received a favorable result in similar proceedings in federal court, Indian nation was not entitled to discontinuance of state proceedings challenging tax assessments levied on its properties.
Affirmed.

Buzulis v. Mohegan Sun Casino
871 N.E.2d 527, Docket No. 06-P-1638
Appeals Court of Massachusetts, Worcester, August 9, 2007

Subjects: Personal injuries -- Cases; Liability (Law); Sovereign immunity -- Official and employees -- Mohegan Sun Casino (Conn.); Jurisdiction -- Mohegan Indian Tribe of Connecticut.

*Synopsis: Casino patron brought action against casino, security guard, director of risk management for casino, and risk management, seeking recovery for injuries sustained at casino. The District Court, Worcester Division, Dennis J. Brennan, J., granted defendants' motion to dismiss based on tribal sovereign immunity, and patron appealed.

*Holding: The Appeals Court, Kantrowitz, J., held that:
(1) tribe's Gaming Disputes Court had exclusive jurisdiction over patron's claim against casino, and
(2) security guard, director, and risk management were entitled to tribal sovereign immunity if they were acting within representative capacity and within scope of their authority.
Remanded.

Meyers & Associates, Inc. v. Coushatta Tribe of Louisiana
965 So.2d 930, Docket No. CW 06-1542
Court of Appeal of Louisiana, Third Circuit, August 8, 2007

Subjects: Sovereign immunity -- Coushatta Tribe of Louisiana; Energy development -- Coushatta Tribe of Louisiana; Economic development -- Coushatta Tribe of Louisiana; Contracts -- Coushatta Tribe of Louisiana; Exhaustion of tribal remedies; Meyer and Associates, Inc.

*Synopsis: After disputes arose in execution of joint venture contracts between Indian tribe and a general consulting engineering firm, which had contracted to provide professional services to tribe in connection with a capital improvement program it had instituted, tribe filed suit in its Tribal Court against engineering firm. Subsequently, firm filed suit in the trial court against tribe. The Fourteenth Judicial District Court, Parish of Calcasieu, No.2006-2683, R. Richard Bryant, Jr., J., ruled that the exhaustion of tribal remedies doctrine did not apply and denied tribe's exception of lack of subject matter jurisdiction. Tribe filed writ application, urging that trial court erred in failing to stay this proceeding to allow Tribal Court the first opportunity to determine whether it validly waived its sovereign immunity and in finding that the trial court had subject matter jurisdiction.

July

In re Cody B.
63 Cal.Rptr.3d 652, Docket No. D050351
Court of Appeal, Fourth District, Division 1, California, July 27, 2007

*Synopsis: Mother, whose parental rights over child had been terminated in former dependency action, sought to be named child's "presumed mother" after child was removed from adoptive parent's custody. The Superior Court, San Diego County, No. EJ01334A, Gary M. Bubis, Commissioner, denied mother's request. Mother and child appealed.

*Holding: The Court of Appeal, McConnell, P.J., held that mother could not be designated as child's "presumed mother" following termination of her parental rights.
Reversed and remanded.

Mann v. North Dakota Tax Commissioner
736 N.W.2d 464, Docket No. 20060366
Supreme Court of North Dakota, July 25, 2007

Subjects: TEK Industries; Motor fuels -- Taxation -- North Dakota -- On Indian reservations; Excise taxes -- North Dakota -- On Indian reservations; North Dakota. Office of State Tax Commissioner; North Dakota. State Treasurer's Office; Tax collection -- North Dakota; Tax refunds -- North Dakota.

*Synopsis: Native Americans brought action against Tax Commissioner and Treasurer for declaratory and injunctive relief, alleging it was illegal for state to impose a state motor vehicle fuel tax on fuel they purchased on their respective reservations, and seeking refund of taxes they had already paid. The District Court, Mountrail County, Northwest Judicial District, Gary A. Holum, J., issued permanent injunction against collection, dismissed all plaintiffs except one, denied motions for reconsideration, and reserved questions on class certification and refunds. Appeal and cross-appeal were taken. The Supreme Court, 692 N.W.2d 490, dismissed the appeal. Thereafter, the District Court, William W. McLees, J., denied class certification and granted partial summary judgment to plaintiffs with regard to refunds. Plaintiffs appealed.

*Holding: The Supreme Court, Gerald W. VandeWalle, C.J., held that:
(1) statutory refund process complied with procedural due process;
(2) statutory refund process applied retroactively;
(3) look-back period for tax refunds started with tax payments made six years before date on which the Native Americans commenced their suit; and
(4) class certification was not warranted.
Affirmed as modified.

Lawrence v. Barona Valley Ranch Resort & Casino
64 Cal.Rptr.3d 23, No. D049558
Court of Appeal, Fourth District, Division 1, California, July 18, 2007 - Added 6/19/08

Subjects: Personal injuries; Casinos -- Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation, California; Sovereign immunity -- Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation, California.

*Synopsis: Casino patron brought action against casino for personal injuries sustained on casino property. The Superior Court, San Diego County, No. GIC863408, Patricia Yim Cowett, J., granted tribe's motion to quash service of summons and complaint on grounds of tribal sovereign immunity, and patron appealed.

*Holding: The Court of Appeal, McIntyre, J., held that:
(1) tribe's limited waiver of sovereign immunity from liability did not constitute consent by tribe to suit in state court, and
(2) claim that tort claims ordinance prescribing procedure for adjudicating claims in tribal court was unfair did not constitute waiver of immunity from suit in state court.
Affirmed.

Carls v. Blue Lake Housing Authority
2007 WL 2040562, No. C052660
Court of Appeal, Third District, California, July 17, 2007 - Added 6/19/08

Subjects: Blue Lake Housing Authority; Sovereign immunity -- Indian business enterprises -- Blue Lake Rancheria, California; Construction contractor.

*Synopsis: (from the opinion) Plaintiffs contend the trial court erred in extending tribal sovereign immunity to activities involving a non-tribal construction company constructing non-tribal housing for sale on non-tribal land and by failing to find the sales contract effected an express waiver of any sovereign immunity.

*Holding: not available

In re Welfare of Children of R.M.B.
735 N.W.2d 348, Docket No. A07-18
Court of Appeals of Minnesota, July 17, 2007

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 -- Tribes -- Minnesota.

*Synopsis: In context of child protection proceedings, tribe filed petition to transfer proceedings to tribal court. The District Court, Anoka County, Michael J. Roith, J., granted petition, and children's guardian ad litem appealed.

*Holding: The Court of Appeals, Wright, J., held that:
(1) relevant stage of proceedings for determining whether there was good cause to deny transfer due to advanced stage of proceedings was pending proceeding, and
(2) guardian ad litem did not show good cause for denying tribe's petition to transfer jurisdiction.
Affirmed.

Retasket v. Department of Revenue
2007 WL 2067037, Docket No. TC-MD 060584E
Oregon Tax Court, Magistrate Division, July 12, 2007

Subjects: Tax exemption -- Confederated Tribes of the Siletz Reservation, Oregon -- Members; Real property tax -- Oregon; Tax exemption -- Law and legislation -- Oregon; United States. Termination Act of 1954.

*Synopsis: (from the opinion) Plaintiff claims that, for tax years 2001, 2002, and 2003, her income was exempt from taxation under the provisions of ORS 316.777. Defendant disagrees, arguing the exemption does not apply because Plaintiff did not reside in Indian country.

*Holding: not yet available

In re K.K.
737 N.W.2d 327, Docket No. 07-0648
Court of Appeals of Iowa, July 12, 2007 - Added 6/19/08

*Synopsis: (from the opinion) Appeal from the Iowa District Court for Tama County, Fae Hoover-Grinde, District Associate Judge. The Sac and Fox Tribe of the Mississippi in Iowa appeal the district court's refusal to transfer jurisdiction to the tribe.

*Holding: not yet available

In re Zamer G.
62 Cal.Rptr.3d 704, Docket No. B194885
Court of Appeal, Second District, Division 5, California, July 10, 2007

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; Conflict of interests; Legal assistance to children.

*Synopsis: In child dependency proceeding involving five children and three different fathers, publicly funded nonprofit law center, divided into three units, represented the children, with one unit representing four children and a second unit representing the fifth. The Superior Court, Los Angeles County, No. CK64128, Stanley Genser, Temporary Judge, disqualified both units from representing children. Law center appealed.

*Holding: The Court of Appeal, Mosk, J., held that:
(1) actual conflict of interest precluded first unit from representing four children, but
(2) second unit was not precluded from representing fifth child.
Affirmed in part and reversed in part.

Matheson v. Gregoire
161 P.3d 486, Docket No. 35067-0-II
Court of Appeals of Washington, Division 2, July 10, 2007
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Cigarettes -- Taxation -- Intergovernmental agreements -- Puyallup Tribe of the Puyallup Reservation, Washington; Cigarettes -- Taxation -- Intergovernmental agreements -- 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; Sovereign immunity -- Puyallup Tribe of the Puyallup Reservation, Washington.

*Synopsis: Native American cigarette retailer brought action against State and Tribe, alleging that agreement between State and Tribe regulating taxes on cigarette sales in Indian country was illegal. The Thurston Superior Court, Richard A. Strophy, J., dismissed the Tribe and subsequently dismissed the case. Retailer appealed.

*Holding: The Court of Appeals, Penoyar, J., held that:
(1) Tribe and Tribe's cigarette tax director were protected by sovereign immunity;
(2) Tribe was an indispensable party, such that dismissal of case was warranted;
(3) appeal was not frivolous, as would warrant an award of attorney fees.
Affirmed.

In re Nicole B.
927 A.2d 1194, Docket No. 1378, Sept. Term, 2006
Court of Special Appeals of Maryland, July 6, 2007

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

*Synopsis: Following permanency planning hearing for Indian children who had been found to be children in need of assistance (CINA), the Circuit Court, Montgomery County, ordered that the plan be changed from reunification with mother and father, to placement with paternal aunt for custody and guardianship, and closed the CINA case, terminating the court's jurisdiction. Mother and father appealed.

*Holding: The Court of Special Appeals, Adkins, J., held that:
(1) Indian Child Welfare Act applied to permanency planning hearing, and
(2) trial court failed to properly address whether Department of Social Services complied with its duty under Child Indian Welfare Act to provide active efforts toward reunification prior to seeking foster care placement of Indian children; and
(3) active efforts at rehabilitation requires more effort than a reasonable efforts standard does, however, the requirement of active efforts does not require futile efforts.
Vacated and remanded.

June

Pit River Tribe v. Donaldson
2007 WL 1874323, Docket No. C051902
Court of Appeal, Third District, California, June 29, 2007

Subjects: Roads -- Design and construction -- California; Environmental impact analysis -- California; Human remains (Archaeology) – Repatriation -- California; California. Dept. of Transportation; Pit River Tribe, California; United States. Native American Graves Protection and Repatriation Act .

*Synopsis: (from the opinion) The Tribe's original complaint named CalTrans as the lone defendant. The crux of its allegations was that, in approving the project and disposing of the stockpiles, CalTrans had violated the federal Native American Graves Protection and Repatriation Act (NAGPRA) (25 U.S.C. § 3001 et seq.) and the Native American Historical, Cultural and Sacred Sites provisions of the Public Resource Code.

*Holding: not yet available

Swalef v. Anderson
646 S.E.2d 458, Record No. 2510-06-1
Court of Appeals of Virginia, Chesapeake, June 26, 2007

Subjects: Parent and child (Law); Trials (Custody of children) -- Virginia; Trials (Custody of children) -- Minnesota; Indian children -- Legal status, laws, etc.; Child welfare; Indian children -- White Earth Band of Chippewa Indians; Divorce suits -- Minnesota; Jurisdiction -- Virginia; Jurisdiction -- Minnesota; Jurisdiction -- White Earth Band of Chippewa Indians.

*Synopsis: Father petitioned for custody of children living in Minnesota. The Circuit Court, City of Norfolk, Charles E. Poston, J., entered temporary order for custody, but then subsequently vacated temporary order and declined to exercise jurisdiction over custody after mother filed for divorce in Minnesota. Father appealed.

*Holding: The Court of Appeals, Randolph A. Beales, J., held that:
(1) Minnesota order stating that Virginia had continuing jurisdiction over child custody absent decline of jurisdiction did not prohibit Virginia from declining to exercise jurisdiction over custody;
(2) order declining to exercise jurisdiction over petition for custody was adequately supported by evidence; and
(3) Minnesota tribal court was not precluded from exercising jurisdiction over father if father petitioned tribal court for custody.
Affirmed.

Greene v. Commissioner of the Minnesota Department of Human Services
733 N.W.2d 490, Docket No. A06-804
Court of Appeals of Minnesota, June 19, 2007

Subjects: Minnesota Chippewa Tribe -- Members; Equality before the law; Employment agencies -- Minnesota Chippewa Tribe; Employment agencies -- Minnesota -- Aitkin County.

*Synopsis: Indian tribe member brought action to challenge order of the Commissioner of Human Services upholding a sanction imposed by county that partially suspended the Minnesota Family Investment Program (MFIP) benefits Indian tribe member received based on her failure to participate in tribal employment services. The District Court, Aitkin County, affirmed, and Indian tribe member appealed.

*Holding: The Court of Appeals, Crippen, Retired Judge serving by appointment, held that:
(1) court would apply rational basis standard of review, rather than strict scrutiny;
(2) statute was rationally related to state interest of protecting and promoting tribal sovereignty and thus did not violate federal equal protection clause; and
(3) statute did not violate state equal protection clause.
Affirmed.

State ex rel. Workforce Safety & Ins. v. JFK Raingutters
733 N.W.2d 248, Docket No. 20060196
Supreme Court of North Dakota, June 7, 2007

Subjects: Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota -- Members; Tribal Employment Rights Office (TERO) -- Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota; Workers' compensation claims.

*Synopsis: Workforce Safety and Insurance (WSI) commenced collection action seeking recovery of the unpaid workers' compensation premiums, penalties, interest, and costs from company and its sole owner. The District Court, McLean County, South Central Judicial District, Bruce A. Romanick, J., granted WSI's motion for summary judgment, and company and its owner appealed.

*Holding: The Supreme Court, Vande Walle, C.J., held that state's workers' compensation laws applied to collection action brought by WSI against company which was not owned by Indian tribe, but, rather, was wholly owned by a member of the tribe.
Affirmed.

May

Hesperia Citizens for Responsible Development v. City of Hisperia
60 Cal.Rptr.3d 124, Docket No. D049614
Court of Appeal, Fourth District, Division 1, California, May 30, 2007

Subjects: Muncipal services -- Intergovernmental agreements -- California -- Hesperia; Muncipal services -- Intergovernmental agreements -- Death Valley Timbi-Sha Shoshone Band of California; Indian gaming -- Death Valley Timbi-Sha Shoshone Band of California; Gambling on Indian reservations -- California; Hesperia Citizens for Responsible Development (Calif.); Casinos -- Design and construction -- Death Valley Timbi-Sha Shoshone Band of California.

*Synopsis: Citizens opposed to municipal services agreement (MSA) between city's community redevelopment agency and Indian tribe, to provide municipal services to a gaming facility that tribe planned to build within agency's redevelopment project area, sued city and redevelopment agency, alleging that adoption of MSA was illegal. Defendants filed motion for summary judgment, and the Superior Court, San Bernardino, No. VCV 032290, Stanford E. Reichert, J., granted the motion. Citizens appealed.

*Holding: The Court of Appeal, Aaron, J., held that redevelopment agency's adoption of MSA did not violate Community Redevelopment Law.
Affirmed.

Taxpayers of Michigan Against Casinos v. State
732 N.W.2d 487, Docket Nos. 129816, 129818, 129822
Supreme Court of Michigan, May 30, 2007

Subjects: Indian gaming -- Tribes -- Michigan; Gambling on Indian Reservations -- Michigan; United States. Indian Gaming Regulatory Act; Taxpayers of Michigan Against Casinos; Governors -- Michigan -- Powers and duties; Intergovernmental agreements -- Tribes -- Michigan; Intergovernmental agreements -- Wisconsin; Constitutional law.

*Synopsis: Taxpayers filed petition against state to challenge constitutionality of gaming compacts with Indian tribes. The Circuit Court, Ingham County, Peter D. Houk, J., determined that legislative approval, by resolution, of the compacts violated certain provisions of the Michigan Constitution. State appealed. The Court of Appeals, 254 Mich.App. 23, 657 N.W.2d 503, affirmed in part and reversed in part. Taxpayers sought leave to appeal. The Supreme Court 471 Mich. 306, 685 N.W.2d 221, affirmed in part and remanded. On remand, the Court of Appeals, Schuette, J., 268 Mich.App. 226, 708 N.W.2d 115, held that provision allowing Governor to amend compacts without legislative approval violated separation of powers clause. Applications for leave to appeal were granted.

*Holding: The Supreme Court, Cavanagh, J., held that:
(1) amendatory provision which allowed Governor to act for state in reviewing and approving amendments submitted by Indian tribes and in proposing amendments did not violate the separation of powers clause, and
(2) claim of alleged violation of appropriations clause was not properly before Supreme Court.
Affirmed in part, reversed in part, and remanded.

Seminole Tribe of Florida v. Department of Families and Children
959 So.2d 761, Docket No. 4D06-3212
District Court of Appeal of Florida, Fourth District, May 30, 2007

Subjects: Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations); 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; Foster care placement.

*Synopsis: Indian tribe moved to place four-year-old child with tribal foster family pursuant to Indian Child Welfare Act (ICWA). The Circuit Court, Seventeenth Judicial Circuit, Broward County, Hope Bristol, J., denied motion. Tribe appealed.

*Holding: The District Court of Appeal, Stone, J., held that trial court did not abuse its discretion in declining to place child with tribal family pursuant to ICWA.
Affirmed.

Related new story: Court rejects Seminoles' effort to raise boy (The Miami Herald) 5/31/07.

In re Mary G.
59 Cal.Rptr.3d 703, Docket No. D049027
Court of Appeal, Fourth District, Division 1, California, May 24, 2007

*Synopsis: In dependency proceedings, the Superior Court, San Diego County, No. EJ1446D, Gary M. Bubis, Juvenile Court Commissioner, entered judgment terminating parental rights of mother and father, and choosing adoption as the permanent plan. Mother and father appealed.

*Holding: The Court of Appeal, McConnell, P.J., held that:
(1) father's constitutional rights to equal protection and full faith and credit principles were violated by not recognizing him as a presumed father based on out-of-state acknowledgement of paternity;
(2) mother failed to make a prima facie showing of changed circumstances to justify her petition for modification;
(3) reversal of judgment terminating father's parental rights required reversal of judgment terminating mother's parental rights; and
(4) social services agency's violation of notice requirements of Indian Child Welfare Act (ICWA) required reversal of order terminating parental rights.
Reversed and remanded.

State v. Cayenne
158 P.3d 623, Docket No. 34563-3-II
Court of Appeals of Washington, Division 2, May 22, 2007

Subjects: Gillnetting -- On Indian reservations -- Confederated Tribes of the Chehalis Reservation, Washington; Fishery law and legislation -- Washington (State) -- Application -- Confederated Tribes of the Chehalis Reservation, Washington; Criminal jurisdiction -- Washington (State) -- Confederated Tribes of the Chehalis Reservation, Washington -- Members.

*Synopsis: Defendant, a member of a Native American tribe, was convicted in the Superior Court, Grays Harbor County, David E. Foscue, J., of two counts of unlawful use of nets to take fish, and sentenced to, among others, prohibition from possessing any gill nets. Defendant appealed.

*Holding: The Court of Appeals, Bridgewater, P.J., held that any prohibition against defendant possessing gill nets on his reservation was void.
Affirmed in part; crime-related prohibition vacated as purported to apply within Indian reservation.

Cherokee Nation v. Nomura
160 P.3d 967, Docket No. 102875
Supreme Court of Oklahoma, May 22, 2007

Subjects: Cherokee Nation, Oklahoma; 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 -- Florida; Adoption -- Florida; Non-Indians.

*Synopsis: Indian tribe sought temporary restraining order to prevent Administrator of Interstate Compact on Placement of Children from approving removal of Indian child to Florida for adoption by non-Indian parents with consent of biological mother. Administrator sought declaratory judgment on applicability of Oklahoma Indian Child Welfare Act and need to give notice to the tribe. The District Court, Rogers County, J. Dwayne Steidley, J., determined that the Act applied to voluntary and involuntary adoptions of Indian children in Oklahoma. Adoption agency appealed.

*Holding: The Supreme Court, Watt, J., held that:
(1) trial court had continuing jurisdiction after initial order approving expenses for adoption;
(2) tribe was entitled to notice of Indian mother's voluntary placement of child for adoption;
(3) placement preferences of state and federal Indian Child Welfare Acts apply to voluntary and involuntary child custody proceedings; and
(4) Administrator had a duty to ensure compliance with placement preferences of state and federal Acts before approving voluntary adoption.
Affirmed.

In re Justin S.
59 Cal.Rptr.3d 376, Docket No. H030732
Court of Appeal, Sixth District, California, May 21, 2007

*Synopsis: Mother appealed order terminating parental rights to her children, and Court of Appeal conditionally reversed and remanded to address defective notice under Indian Child Welfare Act (ICWA). On remand, the Superior Court, Santa Clara County, Nos. JD15233 and JD15234, Katherine Lucero, J., reinstated order terminating mother's parental rights. Mother appealed.

*Holding: The Court of Appeal, Elia, J., held that:
(1) mother had right to participate in hearing on limited remand, and
(2) tribes were not given sufficient time to respond to ICWA notices.
Conditionally reversed and remanded with directions.

In re Vincent M.
59 Cal.Rptr.3d 321, Docket No. H030258
Court of Appeal, Sixth District, California, May 17, 2007

*Synopsis: Parents appealed trial court's dispositional order in dependency proceeding, and the Court of Appeal reversed and remanded for lack of compliance with Indian Child Welfare Act (ICWA) notice provisions. On remand, the Superior Court, Santa Cruz County, No. DP001021, John Steven Salazar, J., found that ICWA did not apply under existing Indian family doctrine, and it entered order terminating parental rights and selecting permanent plan of adoption. Parents again appealed.

*Holding: The Court of Appeal, Mihara, J., held that:
(1) existing Indian family doctrine was invalid as exception to application of ICWA, and
(2) trial court was required to apply substantive provisions of ICWA.
Reversed and remanded.

In re Amber F.
58 Cal.Rptr.3d 874, Docket No. G037570
Court of Appeal, Fourth District, Division 3, California, May 16, 2007

*Synopsis: Mother appealed trial court's order terminating her parental rights, and the Court of Appeal reversed and remanded for defective notice under Indian Child Welfare Act (ICWA). On remand, the Superior Court, Orange County, No. DP004002, Gary Bischoff, Temporary J., reinstated its previous order terminating mother's parental rights. Mother appealed.

*Holding: The Court of Appeal, Sills, P.J., held that mother forfeited claims that ICWA notice was defective.
Affirmed.

State of Montana v. Phillips
159 P.3d 1078, Docket No. 05-702
Supreme Court of Montana, May 15, 2007

Subjects: Court records -- Access control -- Confederated Salish & Kootenai Tribes of the Flathead Reservation, Montana; Juvenile delinquents; Rape.

*Synopsis: Petitioner sought postconviction relief, asserting that state had illegally requested petitioner's juvenile record from tribal court, and petitioner filed motion to withdraw guilty plea. The District Court, Fifth Judicial District, County of Beaverhead, Loren Tucker, J., denied petition and motion. Petitioner appealed.

*Holding: The Supreme Court, Jim Rice, J., held that:
(1) petitioner could not have reasonably raised on direct appeal his claim that juvenile record from tribal court had been illegally released;
(2) information contained in juvenile record was not materially inaccurate, and thus petitioner's due process rights were not violated; and
(3) petitioner's objection to tribal court's release of his juvenile record did not establish good cause for withdrawal of guilty plea.
Affirmed.

In re C.K.
221 S.W.3d 467, Docket No. WD 67474
Missouri Court of Appeals, Western District, May 9, 2007

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

*Synopsis: Mother appealed judgment of the Circuit Court, Jackson County, Ann Mesle, J., terminating her right to parent her children and granting petition for adoption.

*Holding: The Court of Appeals, Paul M. Spinden, P.J., held that evidence did not support termination of mother's parental rights as termination was based solely on her past behavior.
Reversed and remanded.

State v. Jacobs
735 N.W.2d 535, Docket No. 2006AP2076-CR
Court of Appeals of Wisconsin, May 1, 2007

Subjects: Firearms -- Law and legislation -- Michigan -- Application -- Stockbridge-Munsee Community of Mohican Indians of Wisconsin -- Members; Treaty rights -- Stockbridge-Munsee Community of Mohican Indians of Wisconsin; Hunting rights -- Stockbridge-Munsee Community of Mohican Indians of Wisconsin; Muzzle-loading firearms -- Law and legislation -- Wisconsin; Hunting -- On Indian reservations -- Stockbridge-Munsee Community of Mohican Indians of Wisconsin.

*Synopsis: After his motion to dismiss was denied, defendant pled no contest in the Circuit Court, Shawano County, Thomas G. Grover, J., to being a felon in possession of a firearm. Defendant appealed.

*Holding: The Court of Appeals, Hoover, P.J., held that application of statute prohibiting felons from possessing firearms did not make Native American defendant's exercise of treaty hunting rights illegal, in violation of statute prohibiting State from depriving any Indian of any right, privilege, or immunity afforded under Federal treaty.
Affirmed.

April

Hall v. Cherokee Nation
162 P.3d 979, Docket No. 103502
Court of Civil Appeals of Oklahoma, Division No. 2, April 30, 2007

Subjects: Workers’ compensation claims -- Oklahoma; Workers' compensation -- Law and legislation -- Oklahoma; Jurisdiction -- Cherokee Nation, Oklahoma; Employees --Cherokee Nation, Oklahoma..

*Synopsis: Workers' compensation claimant, a paramedic for emergency medical services wholly owned by the Cherokee Indian Nation, sought benefits under the Oklahoma Workers' Compensation Act. The Cherokee Nation raised the defense of tribal sovereign immunity. The Workers' Compensation Court, Kenton W. Fulton, J., dismissed the claim for lack of jurisdiction. Claimant appealed.

*Holding: The Court of Civil Appeals, Keith Rapp, C.J., held that:
(1) the Estoppel Act did not apply to estop Cherokee Nation from raising tribal sovereign immunity as a defense to claimant's request for benefits under state Workers' Compensation Act, and
(2) the Cherokee Nation workers' compensation insurance policy was not ambiguous as to whether it incorporated Oklahoma workers' compensation law as well as tribal law.
Affirmed.

In re Jaclyn S.
58 Cal.Rptr.3d 321, Docket No. A114754
Court of Appeal, First District, Division 1, California, April 25, 2007

*Synopsis: Mother appealed order of the Superior Court, Sonoma County, No. JD2237-DEP, Arnold D. Rosenfield, J., terminating her parental rights.

*Holding: The Court of Appeal, Stein, Acting P.J., held that:
(1) mother did not forfeit claim that appointment of guardian ad litem for her was error;
(2) appointment of guardian was error;
(3) appointment did not violate due process; and
(4) reversal was not required.
Affirmed.

State v. Reber
171 P.3d 406, Docket Nos. 20060299, 2006030
Supreme Court of Utah, April 24, 2007

Subjects: Poaching -- Utah -- Uintah County; Deer hunting -- Indian Country (Utah); Jurisdiction -- Utah; FIsh and game licenses -- Utah; Indians of North America -- Defined; Indian Country (Utah) -- Defined.

*Synopsis: In separate cases, defendants were convicted in the Eighth District Court, Vernal Department, A. Lynn Payne, J., of aiding or assisting in wanton destruction of protected wildlife and attempted wanton destruction of wildlife, and Juvenile who was assisted by one of defendants was adjudicated delinquent on same basis. All appealed. On consolidated appeal, The Court of Appeals, 128 P.3d 1211, reversed based on determination that State lacked jurisdiction.

*Holding: On certiorari review, the Supreme Court, Wilkins, Associate Chief Justice, held that:
(1) tribe was not victim of deer shooting on land that was within Indian country but not owned by tribe or any member of tribe, and
(2) defendants and juvenile were not Indians under federal law.
Judgment of the Court of Appeals reversed; convictions and adjudication of delinquency reinstated.

Beecher v. Mohegan Tribe of Indians of Connecticut
918 A.2d 880, Docket No. 17546
Supreme Court of Connecticut, April 24, 2007

Subjects: Sovereign immunity -- Mohegan Indian Tribe of Connecticut; Extortion -- Officials and employees -- Mohegan Indian Tribe of Connecticut; Strategic Lawsuit Against Public Participation; Sovereign immunity -- Mohegan Indian Tribe of Connecticut.

*Synopsis: Former employee of tribal gaming commission brought vexatious litigation claim against Native American tribe. The Superior Court, Judicial District of Middlesex, Beach, J., granted tribe's motion to dismiss. Employee appealed, and appeal was transferred.

*Holding: The Supreme Court, Borden, J., held that tribe's extortion lawsuit against employee did not constitute a blanket waiver of tribal sovereign immunity in the extortion action or in employee's subsequent vexatious litigation lawsuit.
Affirmed.

State v. Native Village of Nunapitchuk
156 P.3d 389, Docket Nos. S-11525, S-11745
Supreme Court of Alaska, April 20, 2007

Subjects: Native Village of Nunapitchuk ; Lawyers -- Fees; Alaska -- Law and legislation; Constitutional law.

*Synopsis: Native village and citizen groups brought action seeking declaration that statute amending public interest litigant exception to "loser pays" rule for attorney fees was unconstitutional. The Superior Court, First Judicial District, Juneau, Patricia Collins, J., granted plaintiffs summary judgment, and State appealed. In action brought by unions alleging that an appointee lacked the qualifications to serve on the Labor Relations Agency, the Superior Court, First Judicial District, Juneau, Larry R. Weeks, J., awarded unions attorney fees under the public interest rule. State appealed.

*Holding: The Supreme Court, Matthews, J., held that:
(1) rule on attorney fees was a rule of practice and procedure within the province of the Alaska Supreme Court;
(2) statute amending the public interest litigant exception to the "loser pays" rule was substantive in character, and thus did not require a two-thirds vote of each house under the Alaska Constitution; and
(3) statute was not facially invalid on ground that it unconstitutionally impeded access to the courts.
Reversed and remanded in part, and vacated and remanded in part.

County of Amador v. City of Plymouth
57 Cal.Rptr.3d 704, Docket No. G037570
Court of Appeal, Fourth District, Division 3, California, April 17, 2007

Subjects: California. California Environmental Quality Act; Indian gaming -- Ione Band of Miwok Indians of California; Gambling on Indian reservations -- California -- Plymouth; Casinos -- Design and construction -- Ione Band of Miwok Indians of California.

*Synopsis: County and other interested parties petitioned for writ of mandate seeking to invalidate, for failure to comply with California Environmental Quality Act (CEQA), city's municipal service agreement (MSA) between city and Indian tribe who sought to construct casino complex. The Superior Court, Amador County, No. 04CV3246, Glenn A. Ritchey, Jr., J., granted petition. City appealed, and when city abandoned its appeal, tribe intervened and appealed.

*Holding: The Court of Appeal, Blease, Acting P.J., held that:
(1) subject of MSA was project subject to requirements of CEQA;
(2) MSA constituted city's approval of its provision of municipal services for purpose of CEQA requirements;
(3) MSA was not "government funding mechanism" exempt from CEQA requirements; and
(4) portions of MSA requiring CEQA compliance were not severable from remainder of MSA.
Affirmed.

Welfare of Children M.L.A.
730 N.W.2d 54, Docket No. A06-2018
Court of Appeals of Minnesota, April 17, 2007

*Synopsis: Mother's and father's parental rights were terminated by the District Court, Beltrami County, pursuant to stipulated agreement. Mother then moved to set aside judgment based on claim that agreement was coerced. The District Court denied motion, and mother appealed.

*Holding: The Court of Appeals, Stoneburner, J., held that:
(1) mother presented no evidence to show that children were Native American children subject to Indian Child Welfare Act (ICWA);
(2) mother's admission that child suffered nine fractures while in her care supported finding in support of statutory grounds for terminating mother's parental rights;
(3) motion for new trial was, in essence, motion to withdraw admission in order to correct manifest injustice that could be raised at any time;
(4) motion seeking relief from order terminating parental rights was timely;
(5) trial court was required to conduct evidentiary hearing on mother's motion that was based on claim that her admission to statutory grounds for termination was coerced;
(6) order terminating mother's parental rights would be set aside if mother's admission to statutory grounds for terminating parental rights was coerced; and
(7) discharging mother's appointed counsel prior to conclusion of trial court's involvement in proceedings was abuse of discretion.
Affirmed in part; reversed in part; remanded.

State of Oregon v. Watters
156 P.3d 145, Docket Nos. 03M5471, 03M5472; A127144 (Control); A127145
Court of Appeals of Oregon, April 4, 2007

Subjects: Game laws -- Oregon; Elk hunting -- Oregon; Treaty rights -- Nez Perce Tribe of Idaho -- Members; Hunting rights -- Nez Perce Tribe of Idaho -- Members.

*Synopsis: Native American defendants were convicted in the Circuit Court, Walloway County, Daniel J. Hill, J., of gaming violations for taking of elk during closed season. Defendants appealed.

*Holding: The Court of Appeals, Edmonds, P.J., held that:
(1) trial court had jurisdiction over prosecution;
(2) claim that trial court lacked jurisdiction to adjudicate and interpret treaty rights in context of criminal proceedings had to be raised by demurrer or motion in arrest of judgment;
(3) trial court had authority to determine whether treaty defined scope of hunting rights applied to prosecution against Native defendants for gaming violations;
(4) allegation that Native American defendants killed elk during closed season on private property was sufficient to support charge for gaming violation; and
(5) as matter of first impression, land on which Native Americans took elk was not “open and unclaimed,” within meaning of treaty.
Affirmed.

Ledoux v. Grand Casino-Coushatta
954 So.2d 902, Docket No. 06-1500
Court of Appeal of Louisiana, Third Circuit, April 4, 2007

Subjects: Grand Casinos of Louisiana, Inc.; Casinos -- Coushatta Tribe of Louisiana; Prize money; Sovereign immunity -- Coushatta Tribe of Louisiana; Slot machines.

*Synopsis: Two casino patrons filed breach of contract claims against Indian tribe, casino, and casino corporation that alleged casino failed to pay out jackpots allegedly won by patrons on the same slot machine on two different dates. The Thirty-Third Judicial District Court, Allen Parish, No. C-2002-627, John Navarre, J., granted patrons summary judgment and awarded one patron $65,581 and awarded second patron $32,790.50. Tribe appealed.

*Holding: The Court of Appeal, Peters, J., held that:
(1) tribe expressly waived its sovereign immunity as to patrons' claims;
(2) two-year prescriptive period provided by tribal law for tort claims did not bar patrons' lawsuit against casino and tribe; and
(3) tribe's allegation that slot machine malfunctioned on two separate occasions when it awarded jackpots in excess of its programming was insufficient to establish contract between tribe and casino patrons was a nullity.
Affirmed.

March

People v. Ramirez
56 Cal.Rptr.3d 631, Docket No. C048138
Court of Appeal, Third District, California, March 28, 2007

Subjects: Police officers -- Jackson Rancheria of Me-Wuk Indians of California; Searches and seizures -- On Indian reservations -- Jackson Rancheria of Me-Wuk Indians of California; Evidence (Law) -- California; United States. Constitution. 4th Amendment.

*Synopsis: Defendant, charged with drug offenses, moved to suppress evidence obtained as result of search without probable cause conducted by Indian tribal officers outside casino on tribal land. The Superior Court, Amador County, No. 03CR4696, David S. Richmond, J., granted motion and dismissed case. The People appealed.

*Holding: The Court of Appeal, Robie, J., held that:
(1) as issue of first impression, exclusionary rule applied to evidence obtained in violation of search and seizure provision of Indian Civil Rights Act;
(2) Congress had authority to impose exclusionary rule on state courts; and
(3) Right to Truth-in-Evidence provision of state Constitution did not operate to admit evidence.
Affirmed.

People ex rel. K.D.
155 P.3d 634, Docket No. 06CA1916
Colorado Court of Appeals, Div. II, March 26, 2007

*Synopsis: Proceeding was brought to terminate father's parental rights. The District Court, Mesa County, Amanda D. Bailey, J., terminated father's parental rights. Father appealed.

*Holding: The Court of Appeals, Rothenberg, J., held that:
(1) active efforts were made to reunite family as required by Indian Child Welfare Act (ICWA);
(2) witness was not required to have special knowledge of Indian life to be qualified to testify;
(3) Indian father had emotional illness requiring termination of his parental rights; and
(4) evidence supported findings that there were no less drastic alternatives to termination of parental rights and that terminating parental rights was in child's best interests.
Affirmed.

State v. Jones
729 N.W.2d 1, Docket No. A05-365
Supreme Court of Minnesota, March 22, 2007

Subjects: Criminals -- Records -- Law and legislation -- United States; Jurisdiction -- Minnesota.

*Synopsis: Enrolled Indian tribal member previously convicted of kidnapping, who had been charged under predatory-offender registration statute with felonies of failing to notify Bureau of Criminal Apprehension (BCA) of his change of address and failing to complete, sign and return to the BCA requisite address verification forms, moved to dismiss charges on ground that state courts lacked subject matter jurisdiction to enforce citied provisions of statute against him. The District Court, Cass County, John P. Smith, J., granted motion. State sought review. The Court of Appeals, 700 N.W.2d 556, affirmed. State appealed.

*Holding: The Supreme Court, Paul H. Anderson, J., held that violation of predatory-offender registration statute was a criminal/prohibitory offense, and thus, state had subject matter jurisdiction to prosecute tribal member.
Reversed.

In re C.F.
218 S.W.3d 22, Docket Nos. 27906, 27907 and 27908
Missouri Court of Appeals, Southern District, Division One, March 22, 2007

*Synopsis: Father appealed from decision of the Circuit Court, McDonald County, John R. LePage, J., terminating his parental rights.

*Holding: The Court of Appeals, Nancy Steffen Rahmeyer, P.J., held that clear, cogent and convincing evidence supported trial court's termination of father's parental rights.
Affirmed.

Catawba Indian Tribe of South Carolina v. State
642 S.E.2d 751, Docket No. 26291
Supreme Court of South Carolina, March 19, 2007

Subjects: Indian gaming -- Catawba Indian Tribe of South Carolina; South Carolina; Video poker-- Catawba Indian Tribe of South Carolina; Fees, Administrative-- Catawba Indian Tribe of South Carolina.

*Synopsis: Indian tribe brought declaratory judgment action against state and Attorney General seeking declaration that pursuant to terms of settlement agreement and state act, which gave tribe specific rights related to bingo and video poker or similar electronic play devices, tribe had right to operate video poker or similar electronic play devices on its reservation and declaration that tribe was not required to charge or pay entrance fee against its bingo operation. On cross-motions for summary judgment, the Circuit Court, Richland County, Joseph M. Strickland, J., granted summary judgment in favor of tribe. State and Attorney General appealed.

*Holding: The Supreme Court, Burnett, J., certified case for review from the Court of Appeals, and held that:
(1) pursuant to terms of settlement agreement and state act, tribe had right to allow video poker and similar electronic play devices on its reservation, either by third-party's operation or its own operation, to same extent devices were authorized by state law, and
(2) general entrance fee was not applicable to tribe's bingo operation.
Affirmed in part and reversed in part.

Swinomish Indian Tribal Community v. Skagit County
2007 WL 809863, Docket No. 57813-8-I
Court of Appeals of Washington, Division 1, March 19, 2007

Subjects: Instream flows -- Management -- Skagit River (B.C. and Wash.); Intergovernmental agreements -- Washington (State) -- Skagit County; Intergovernmental agreements -- Swinomish Indians of the Swinomish Reservation, Washington; Intergovernmental agreements -- Wells -- Management.

*Synopsis: (from the opinion) The Swinomish Indian Tribal Community sought a declaratory judgment that provisions of the Growth Management Act (GMA) and a Memorandum of Agreement (MOA) between the Tribe, the County, and various other parties preclude the County from permitting water wells that adversely affect minimum instream water flows in the rivers and streams of Skagit basin, and an injunction requiring the County to abide by its statutory and contractual obligations. The superior court dismissed on the grounds that the Tribe lacks standing to seek interpretation and enforcement of the GMA in this manner, and that provisions of the MOA are contrary to public policy, and thus unenforceable.

*Holding: not yet available

Confederated Salish & Kootenai Tribes v. Clinch
158 P.3d 377, Docket No. 04-042
Supreme Court of Montana, March 12, 2007

Subjects: Reserved water rights -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Water use -- On Indian reservations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana -- Non--Indians; Water rights -- Non-Indians.

*Synopsis: Indian tribes brought action against Department of Natural Resources and Conservation (DNRC) to enjoin it from processing application to change use of appropriative water rights on Indian reservation without quantifying tribes' reserved rights. The First Judicial District Court, Lewis and Clark County, Jeffrey M. Sherlock, J., granted summary judgment in favor of tribes and issued permanent injunction. DNRC appealed.

*Holding: The Supreme Court, Jim Rice, J., held that:
(1) DNRC's authority to process application depended on off-reservation effects and the impact on tribes' political integrity, economic security, health, or welfare, and
(2) if state had sovereign authority to process the application, owners were entitled to prove by a preponderance of the evidence that proposed change in appropriation right would not adversely affect the use of existing water rights.
Reversed and remanded.

LaSalle Bank v. Reeves
919 A.2d 738, Docket No. 0268 Sept. Term, 2005
Court of Special Appeals of Maryland, March 2, 2007

Subjects: Foreclosure -- Sales; Delaware Tribe of Indians, Oklahoma; Delaware Tribe of Western Oklahoma; Limitation of actions; Parties to actions.

*Synopsis: Lender, who bought property in which it had a secured interest at foreclosure sale, filed declaratory action to reform description of property in deed of trust to encompass three-acre entire parcel as intended by parties. Borrower moved to dismiss. The Circuit Court, St. Mary's County, Vincent J. Femia, J., granted motion to dismiss on statute of limitations grounds. Lender appealed.

*Holding: The Court of Special Appeals, Sharer, J., held that:
(1) Indian tribe was necessary party to action;
(2) declaratory judgment action was an equitable action subject to laches defense; and
(3) laches defense did not apply for lack of prejudice to borrower.
Reversed and remanded.

Pine Bar Ranch v. Luther
152 P.3d 1062, Docket No. 06-108
Supreme Court of Wyoming, March 2, 2007

Subjects: Right of way -- Wind River Indian Reservation (Wyo.); Trespass -- Wind River Indian Reservation (Wyo.); Roads -- On Indian reservations -- Wind River Indian Reservation (Wyo.).

*Synopsis: Property owners filed petition for review regarding decision of board of county commissioners that denied application to establish private road. The District Court, Fremont County, Norman E. Young, J., reversed board's decision. Objecting party appealed.

*Holding: The Supreme Court, Burke, J., held that:
(1) for purposes of private-road statute, road that property owners used to access their allegedly landlocked property was not "public road";
(2) Indian tribes' offer to grant limited right-of-way was insufficient to establish access to public road; and
(3) property owners were not required to pursue limited right-of-way from Indian tribes before seeking to establish private road.
Affirmed.

Moses v. Department of Corrections
736 N.W.2d 269, Docket No. 262970
Court of Appeals of Michigan, March 1, 2007

Subjects: Habeas corpus; Criminal actions arising on Indian reservations; Jurisdiction -- Michigan; Jurisdiction -- United States; Jurisdiction -- Saginaw Chippewa Indian Tribe of Michigan.

*Synopsis: After his initial action for habeas relief was dismissed in the Circuit Court, Isabella County, petitioner filed an original complaint in the Court of Appeals for habeas relief from conviction for third-degree criminal sexual conduct, challenging jurisdiction of trial court.

*Holding: The Court of Appeals held that:
(1) habeas corpus was an available remedy for petitioner to assert a radical defect in the trial court's jurisdiction;
(2) petitioner did not waive his right to raise a jurisdictional challenge;
(3) trial court had jurisdiction to preside over case stemming from offense that occurred on swampland that had been patented to State prior to reservation treaties; and
(4) State was permitted to make defensive use of collateral estoppel to preclude petitioner's habeas claim.
Complaint dismissed.

February

State v. Owen
729 N.W.2d 356, Docket No. 24011
Supreme Court of South Dakota, February 28, 2007

Subjects: Evidence (Law); Criminal jurisdiction -- South Dakota; Dependent Indian communities -- Defined; Jury selection; Murder (Trials).

*Synopsis: Defendant was convicted in the Circuit Court, Fifth Judicial Circuit, Roberts County, Jon S. Flemmer, J., of first-degree murder and aggravated assault. He appealed.

*Holding: The Supreme Court, Sabers, J., held that:
(1) evidence that defendant brought and shared marijuana and discussed selling or trading marijuana was admissible as res gestae evidence;
(2) defendant did not show prejudice from trial court's denial of mistrial after law enforcement officer testified that he heard that defendant was a "possible absconder";
(3) defendant's confession was not rendered involuntary by delay of three to four and one-half hours in bringing him to a magistrate;
(4) defendant did not show that trial court abused its discretion in denying his jury instruction on self-defense;
(5) evidence was sufficient to show that defendant acted with premeditation, so as to support conviction for first-degree murder;
(6) charged offenses were not committed on land that was a dependent Indian community, and thus state court had jurisdiction over offenses; and
(7) the state provided race-neutral reasons for using peremptory challenges against seven Native American prospective jurors.
Affirmed.

Matter of Spota v. Jackson
37 A.D.3d 841, Docket No. 2005-11817 (Index No. 18000-05)
Supreme Court, Appellate Division, Second Department, New York, February 27, 2007

Subjects: Indian allotments -- Unkechaug Indian Nation; Trespass -- Unkechaug Indian Nation; Law -- Unkechaug Indian Nation -- Application -- Non-members of the tribe.

*Synopsis: District Attorney, acting on behalf of Indian tribe, applied for order under section 8 of the Indian Law to remove a white woman from lands of the Unkechaug Indian Nation as an intruder. The County Court, Suffolk County, Hinrichs, J., denied the petition, and appeal was taken.

*Holding: The Supreme Court, Appellate Division, held that wife of member of Indian tribe, who moved with her children to an allotment on tribal lands belonging to her husband, was not an "intruder" on the tribe's lands for purposes of the Indian Law.
Affirmed.

Thayer v. Commissioner of Revenue
2007 WL 609532, Docket No. 7724 R
Minnesota Tax Court, Regular Division, February 26, 2007

Subjects: Income tax -- Indians of North America -- Minnesota; Indians of North America -- Employment -- On Indian reservations -- Taxation -- Minnesota

*Synopsis: (from the opinion) The issue in this case is whether the State of Minnesota may impose individual income tax on a member of an American Indian Tribe whose primary residence is off the tribe's reservation but whose income is derived, in part, from tribal employment.

*Holding: not yet available

In re G.F.
923 A.2d 578, Docket No. 2006-399
Supreme Court of Vermont, February 23, 2007

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

*Synopsis: Mother and father separately appealed from judgment of the Orleans Family Court, Howard E. Van Benthuysen, J., terminating their residual parental rights to children.

*Holding: The Supreme Court held that:
(1) trial court's error in failing to substantially comply with statutory requirements of the Indian Child Welfare Act (ICWA) was harmless, and
(2) trial court was not required to consider less drastic alternatives to termination once it determined parents to be unfit.
Affirmed.

Jane Doe v. Santa Clara Pueblo, Santa Clara Development Corporation
154 P.3d 644, Docket Nos. 29,350, 29,351
Supreme Court of New Mexico, February 23, 2007

Subjects: Personal injuries; Concurrent jurisdiction -- United States -- States; Concurrent jurisdiction -- Tribes; Kidnapping; Minors; Casinos -- Pueblo of San Felipe, New Mexico; Casinos -- Pueblo of Santa Clara, New Mexico; Jurisdiction -- Pueblo of Santa Clara, New Mexico; Jurisdiction -- New Mexico; Gambling on Indian reservations -- New Mexico; Indian gaming -- Pueblo of Santa Clara, New Mexico; Intergovernmental agreements -- Pueblo of Santa Clara, New Mexico; Intergovernmental agreements -- New Mexico; United States. Indian Gaming Regulatory Act.

*Synopsis: Minor who was kidnapped from parking lot of casino on tribal land, by and through her parents and next friend, brought personal injury suit against pueblo. The District Court, Santa Fe County, Carol J. Vigil, D.J., denied pueblo's motion to dismiss for lack of subject matter jurisdiction. Pueblo brought interlocutory appeal. The Court of Appeals, 138 N.M. 198, 118 P.3d 203, affirmed. In a separate action, casino visitor and her minor son brought action against a pueblo and its insurer, seeking damages for injuries arising when they tripped over unsecured floor mat at casino and fell. The Thirteenth Judicial District Court denied pueblo's motion to dismiss. The Court of Appeals denied pueblo's request for interlocutory appeal. Both pueblos sought certiorari review. Appeals were consolidated.

*Holding: The Supreme Court, Bosson, J., held that:
(1) Indian Gaming Regulatory Act (IGRA) did not prohibit shifting jurisdiction over casino visitors' personal injury suits to state courts;
(2) IGRA permitted tribes and states to negotiate the issue of state court jurisdiction over civil claims arising on tribal lands; and
(3) IGRA was not ambiguous as to jurisdiction-shifting, as would warrant application of presumption requiring interpretation in favor of the tribe.
Affirmed and remanded.

Related News Stories: Ruling favors court's authority in casino lawsuits. (Albuquerque Tribune) 2/27/07

California Commerce Casino, Inc. v. Schwarzenegger
53 Cal.Rptr.3d 626, Docket No. B188220
Court of Appeal, Second District, Division 3, California, February 22, 2007

Subjects: United States. Indian Gaming Regulatory Act; California; Schwarzenegger, Arnold; California Commerce Casino; Intergovernmental agreements -- Tribes -- California; Intergovernmental agreements -- California; Constitutional law; Negotiation.

*Synopsis: Non-tribal gaming corporation and its employee filed action against Governor and related defendants, challenging statutes that ratified amended gaming compacts between Governor and five tribes. The Superior Court, Los Angeles County, No. BS097163, Dzintra Janavs, J., sustained defendants' demurrer without leave to amend and dismissed complaint. Plaintiffs appealed.

*Holding: The Court of Appeal, Klein, P.J., held that:
(1) statute providing direct review by Supreme Court was unconstitutional, and
(2) plaintiffs' challenge was governed by validation action statutes, and thus subject to 60-day limitations period.
Appeal dismissed.

In re C.P.
641 S.E.2d 13, Docket No. COA06-1392
Court of Appeals of North Carolina, February 20, 2007

Subjects: Parent and child (Law); Trials (Custody of children) -- North Carolina; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Notice (Law) -- United States; Pokagon Band of Potawatomi Indians, Michigan and Indiana.

*Synopsis: County department of social services filed petition to have mother's three children adjudicated neglected. The District Court, Wilkes County, Edgar B. Gregory, J., adjudicated children neglected, directed that the two older children be placed in father's home, and directed that youngest child remain in custody of department. Mother appealed.

*Holding: The Court of Appeals, Wynn, J., held that:
(1) trial court did not abuse its discretion in finding that the Indian Welfare Child Act did not apply to neglect proceeding or in refusing to continue proceeding to allow more time for Indian tribe in which mother and children were alleged members to respond to notice of the proceeding;
(2) evidence supported conclusion that mother's three children had been neglected; and
(3) trial court erred in failing to provide fro visitation between mother and two oldest children.
Affirmed in part, remanded in part.

Hyde v. Fisher
152 P.3d 653, Docket No. 30648
Court of Appeals of Idaho, February 8, 2007

Subjects: Prisoners -- Idaho; Habeas corpus; Freedom of religion -- United States; Sweat lodges; Religious articles; United States. Constitution. 14th Amendment; United States. Constitution. 1st Amendment; United States. Religious Land Use and Institutionalized Persons Act of 2000.

*Synopsis: Inmate petitioned for a writ of habeas corpus, alleging that the State violated his rights to practice his religion under the State and federal Constitutions, the Religious Exercises in Land Use and by Institutionalized Persons Act (RLUIPA), and the Free Exercise of Religion Protected Act (FERPA). The District Court, Ada County, Daniel C. Hurlbutt, J., denied petition. Inmate appealed.

*Holding: The Court of Appeals, Gutierrez, J., held that:
(1) statute that required filing of a bond as a condition precedent to filing civil action against law enforcement officer did not apply to indigent prisoner's action for an alleged violation of FERPA, and
(2) RLUIPA preempted any requirement under state law that indigent prisoner litigant post a bond as a condition precedent to bringing action.
Reversed and temporarily remanded.

People ex rel. K.D.
155 P.3d 634, Docket No. 06CA1916
Court of Appeals of Colorado, Div. II, February 8, 2007

*Synopsis: Proceeding was brought to terminate father's parental rights. The District Court, Mesa County, Amanda D. Bailey, J., terminated father's parental rights. Father appealed.

Mattaponi Indian Tribe, et al v. Commonwealth of Virginia, et al
Unpublished, not on Westlaw or LexisNexis, Docket No. 3001-RW/RC
Court of Appeals of Virginia, February 5, 2007

Subjects: Virginia. State Water Control Board; Permits -- Virginia -- Newport News; Treaty at Middle Plantation(1677); King William Reservoir project (Va.); Reservoirs -- Virginia; Dams -- Virginia; State recognized Indian tribes -- Mattaponi Indian Reservation (Virginia); Treaty rights -- Mattaponi Indian Reservation (Virginia); Water rights -- Mattaponi Indian Reservation (Virginia); Mattaponi Indian Reservation (Virginia) -- Exclusion, Right of; Trials (Trespass); Evidence; Sovereign immunity -- Virginia.

*Synopsis: (from the opinion) The Tribe asserts that construction of the reservoir will encroach upon certain rights it enjoys under the 1677 Treaty of Middle Plantation, specifically the right to hunt, fish, and gather, as described in Article II of the Treaty.

*Holding: not yet available

Related News Stories: Judge says state-recognized tribe can claim water rights (Indian Country Today) 2/19/07

Winnebago Tribe of Nebraska v. Kline
150 P.3d 892, Docket No. 94,781
Supreme Court of Kansas, February 5, 2007

Subjects: Kansas. Motor-Vehicle Fuel Tax Act; Motor fuels -- Taxation -- Kansas; Imports -- Kansas; Winnebago Tribe of Nebraska -- Commerce -- Taxation; Distributors -- Off Indian reservations -- Taxation -- Kansas; Delivery of goods -- On Indian reservations -- Taxation -- Kansas; Double taxation -- Kansas; Licenses -- HCI Distribution Corp. (Neb.); Service stations -- Sac & Fox Nation of Missouri in Kansas and Nebraska; Service stations -- Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas; Service stations -- Iowa Tribe of Kansas and Nebraska.

*Synopsis: Indian tribes brought action seeking injunctive relief and a determination that the motor-fuel tax law does not authorize assessment of tax on motor fuel delivered and sold by a Nebraska tribal corporation to tribes in Kansas for on-reservation retail sale. The United States District Court for the District of Kansas, Marten, J., 2005 WL 1683970, certified question of law.

*Holding: The Supreme Court, Allegrucci, J., held that:
(1) distributor of first receipt is liable for payment of the motor fuel tax;
(2) importers are not included within the meaning of “distributors”; and
(3) tribal corporation did not “receive” fuel within State and, thus, did not fall within definition of “distributor” and was not liable for motor fuel tax.
Certified question answered.

Related News Stories: Winnebago Tribe wins taxation case in Kansas (Indianz.com) 2/2/07

January

In re Welfare of Children of S.W.
727 N.W.2d 144, Docket No. A06-1175
Court of Appeals of Minnesota, January 30, 2007

*Synopsis: Mother appealed decision of the District Court, Big Stone County, Gerald J. Seibel, J., terminating her parental rights to her two children.

*Holding: The Court of Appeals, Kalitowski, J., held that:
(1) evidence supported finding that mother was palpably unfit;
(2) evidence supported finding that county made reasonable efforts at reunification;
(3) witness was qualified to testify as an expert under Indian Child Welfare Act (ICWA) and Minnesota Tribal/State Agreement on Indian Child Welfare; and
(4) violations of ICWA during child in need of protection (CHIPS) proceedings did not require invalidation of subsequent parental rights termination.
Affirmed.

In re Robert A.
55 Cal.Rptr.3d 74, Docket No. D048994, (Super.Ct.No. J515635)
Court of Appeal, Fourth District, Division 1, California, January 25, 2007

*Synopsis: In dependency proceedings, the Superior Court, San Diego County, No. J515635, Hideo Chino, Referee, ordered the removal of a child from his father's custody. Father appealed.

*Holding: The Court of Appeal, Irion, J., held that county social services agency failed to comply with Indian Child Welfare Act (ICWA). Reversed and remanded with directions.
Huffman, Acting P. J., concurred in the result.

Francis v. Dana-Cummings
915 A.2d 412, Docket No. WAS-06-184
Supreme Judicial Court of Maine, January 23, 2007

Subjects: Passamaquoddy Tribe of Maine -- Members; Breach of contract -- Passamaquoddy Tribe of Maine; Maine. Civil Rights Act; Trials (Trespass); Trials (Eviction); Jurisdiction -- Maine; Jurisdiction -- Tribal courts; Passamaquoddy Tribe of Maine; Pleasant Point Passamaquoddy Housing Authority (Me.); Maine. Indian Claims Settlement Act.

*Synopsis: After tribe member brought four separate civil rights and property lawsuits against tribal housing authority and various individual officials of the housing authority, and the Supreme Court consolidated appeals from such lawsuits, which primarily concerned the jurisdiction of state courts, and finally determined that only the tribe could benefit from the prohibition on regulation of internal tribe matters, 2005 ME 35, 868 A.2d 196, the tribe, on remand, moved to intervene. The Superior Court, Washington County, Hunter, J., denied the tribe's motion to intervene, and dismissed the tribes motions to dismiss or for summary judgment. Tribe appealed.

*Holding: The Supreme Judicial Court, Alexander, J., held that:
(1) any party in an action involving tribal matters may assert that a court of the state lacks jurisdiction on the basis of the statutory prohibition on state regulation of internal tribal matters, and
(2) the tribe was entitled to intervene in order to develop evidence and inform the Superior Court as to whether the court was being asked to impermissibly regulate an internal tribal matter.
Judgment vacated; remanded.

California Commerce Casino, Inc. v. Schwarzenegger
53 Cal.Rptr.3d 626, Docket No. B188220
Court of Appeal, Second District, Division 3, California, January 23, 2007

People ex rel. J.A.S.
160 P.3d 257, Docket No. 06CA1441
Colorado Court of Appeals, Division IV, January 11, 2007

*Synopsis: The department of human services filed a petition to terminate mother and father's parental rights to their children. The Juvenile Court for the City and County of Denver, Karen M. Ashby, J., terminated parental rights. Parents appealed.

*Holding: The Court of Appeals, Jones, J., held that:
(1) the Indian Child Welfare Act (ICWA) did not apply to termination of parental rights proceeding;
(2) evidence was sufficient to support finding that mother failed to substantially comply with her treatment plan;
(3) trial court error, if any, in admitting onto evidence father's Colorado Bureau of Investigation criminal history report (CBI report) was not reversible error; and
(4) evidence supported finding that the department made reasonable efforts to rehabilitate father.
Affirmed.

Nicole K. v. Superior Court
53 Cal.Rptr.3d 251, Docket No. C053987
Court of Appeal, Third District, California, January 11, 2007

*Synopsis: At a contested review hearing in a child dependency proceeding, the Superior Court, San Joaquin County, No. J03934, John Parker, J., terminated reunification services for mother, ordered continued out-of-home placement for her three children, and set a hearing to consider termination of parental rights. Mother filed petition for writ of mandate.

*Holding: The Court of Appeal, Scotland, P.J., held that:
(1) notice to Indian tribe that was sent to incorrect address was inadequate under Indian Child Welfare Act (ICWA);
(2) in absence of evidence that tribe received actual notice, error was not harmless; and
(3) even assuming that ICWA notice errors were not jurisdictional, error in this case required reversal of trial court's orders.
Petition granted.

In re Adoption of Kenten H.
725 N.W.2d 548, Docket No. S-06-204
Supreme Court of Nebraska, January 5, 2007

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; Adoption; Nebraska. Nebraska Indian Child Welfare Act; Parties to actions.

*Synopsis: Mother filed a petition to vacate child's adoption. The Juvenile Court, Lancaster County, Thomas B. Dawson, J., granted adoptive parents' motion to dismiss. Mother appealed.

*Holding: The Supreme Court, Stephan, J., held that:
(1) mother was precluded from arguing that her consent the voluntary relinquishment of her parental rights to child was invalid because it was not obtained pursuant to the Nebraska Indian Child Welfare Act (NICWA);
(2) limitations period for filing an action attacking the validity of an adoption required an action to be filed within two years of the adoption, and did not require that the challenge be resolved within two years of the adoption; and
(3) the Department of Health and Human Services (DHHS) and guardian ad litem from prior juvenile proceedings were not necessary parties.
Reversed and remanded.

State ex rel. V.H.
154 P.3d 867, Docket No. 20060146-CA
Court of Appeals Utah, January 5, 2007

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

*Synopsis: Termination of parental rights proceeding was brought. The Third District Juvenile, Salt Lake Department, Sharon P. McCully, J., terminated father's parental rights. Father appealed.

*Holding: The Court of Appeals, Greenwood, P.J., held that:
(1) father was not denied effective assistance of counsel;
(2) Division of Child and Family Services (DCFS) made adequate efforts to provided remedial services and rehabilitative programs under Indian Child Welfare Act (ICWA); and
(3) juvenile court was not divested of jurisdiction when parental rights termination proceedings were extended beyond 18-month deadline.
Affirmed.

In re. Adoption of A.M.C.
246 S.W.3d 426, Docket No. 06-820
Supreme Court of Arkansas, January 4, 2007

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; Adoption.

*Synopsis: Stepfather filed a petition to adopt child that alleged father's consent to adoption was not required. The Circuit Court, Logan County, Terry Sullivan, J., determined that father's consent to adoption was not required, and granted the adoption. Father appealed.

*Holding: The Supreme Court, Annabelle Clinton Imber, J., held that:
(1) child was not an “Indian child,” and thus the Indian Child Welfare Act (ICWA) did not apply to stepfather's petition to adopt child without father's consent;
(2) evidence supported finding that father failed, without justifiable cause, to support child; and
(3) trial court finding that it was in child's best interest to grant stepfather's petition to adopt child was not against the preponderance of the evidence.
Affirmed.

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