Indian Law Bulletins  |  State Courts  |  Archives 2010

December

Inquiry Concerning Complaint of Judicial Standards Commission v. Not Afraid
245 P.3d 1116
No. PR 09-0639.
Supreme Court of Montana, December 30, 2010

*Synopsis: Appointed prosecuting attorney filed complaint against justice of the peace, a tribal member who became a candidate for tribal chairman, alleging violation of section of State Constitution requiring a holder of a judicial position to forfeit that position upon filing for an elective public office. The Judicial Standards Commission concluded that justice violated State Constitution and recommended that he be publicly reprimanded. Justice objected.

Holding: The Supreme Court, Jim Rice, J., held that:
(1) justice could not personally raise the defense of sovereign immunity;
(2) State had jurisdiction to pursue complaint; and
(3) office of tribal chairman was not an elective public office for purposes of section of State Constitution requiring a holder of a judicial position to forfeit that position upon filing for an elective public office.
Complaint dismissed.

Lucy J. v. Department of Health & Social Services, Office of Children's Services
244 P.3d 1099
No. S-13662.
Supreme Court of Alaska, December 17, 2010

*Synopsis: Office of Children's Services (OCS) filed petition to terminate mother's parental rights with regard to two of her minor children. The Superior Court, First Judicial District, Juneau, Patricia A. Collins, J., granted petition. Mother appealed.

Holding: The Supreme Court, Fabe, J., held that:
(1) finding that mother failed to remedy her conduct that placed children at substantial risk of harm was supported by sufficient evidence;
(2) findings that active efforts were made to provide remedial services and that such efforts were unsuccessful were supported by sufficient evidence;
(3) finding that returning children to mother would likely result in serious emotional or physical harm was supported by sufficient evidence; and
(4) finding that termination was in children's best interests was supported by sufficient evidence. Affirmed.

Pyramid Lake Paiute Tribe of Indians v. Ricci
245 P.3d 1145
No. 51603.
Supreme Court of Nevada, December 16, 2010

*Synopsis: Tribe sought judicial review of decision by State Engineer to grant Nevada Land and Resource Company, LLC, change application for water rights in basin groundwater. The Second Judicial District Court, Washoe County, Jerome Polaha, J., denied petition, and tribe appealed.

Holding: The Supreme Court held that:
(1) prior decision identifying scope of tribe's water rights was res judicata, for purposes of instant challenge;
(2) tribe's use of basin groundwater without benefit of permit or implied right did not have priority over Nevada company's application for change of water rights; and
(3) application did not affect any right of tribe in use of groundwater.
Affirmed.

In the Interest of C.Z.
2010 WL 5058350
No. 08CA2159.
Colorado Court of Appeals, December 9, 2010

*Synopsis: In dependency and neglect proceeding, the District Court, Lake County, Karen Ann Romero, J., ordered parental rights of mother and father terminated. Mother and father directed their court-appointed trial attorneys to appeal. The Court of Appeals granted trial attorneys' motion to withdraw, and appointed new appellate counsel who submitted briefing as to whether Colorado should adopt procedures under Anders v. California for dependency and neglect appeals in which counsel determined the appeals had no arguable merit. After accepting prejudgment certiorari, the Supreme Court, 226 P.3d 1054, remanded with directions.

Holding: On remand, the Court of Appeals, Furman, J., held that:
(1) appointment of mother's previously appointed trial counsel as a district court magistrate constituted “good cause” for permitting her to withdraw from mother's appeal;
(2) motions judge for Court of Appeals acted within her discretion by finding that good cause existed for substitution of father's appointed trial counsel with appointed appellate counsel;
(3) good cause existed for withdrawal of second appointed appellate counsel for mother and substitution of third appointed appellate counsel;
(4) Department of Human Services complied with notice requirements of the Indian Child Welfare Act (ICWA);
(5) evidence was sufficient to establish that the Department made active efforts to rehabilitate father as required by the ICWA; and
(6) evidence was sufficient to establish that Department made active efforts to rehabilitate mother. Affirmed.

Brenda O. v. Arizona Department of Economic Security
244 P.3d 574
No. 1 CA-JV 10-0073.
Court of Appeals of Arizona, December 7, 2010

*Synopsis: The Department of Economic Security (DES) filed a motion to terminate mother's parental rights. The Superior Court, Maricopa County, No. JD 16009, Dawn M. Bergin, J., terminated parental rights. Mother appealed.

*Holding: The Court of Appeals, Johnsen, J., held that psychologist, who opined that mother's drinking problem likely was "pathological," qualified as an expert witness within the meaning of the Indian Child Welfare Act (ICWA). Affirmed.

Lindsey H. v. State of Alaska, Department of Health and Social Services
2010 WL 4909461
No. S-13711 .
Supreme Court of Alaska, December 2, 2010

*Synopsis: Office of Children's Services filed petition to terminate mother's parental rights to her tenth child, an infant covered by the Indian Child Welfare Act. The Superior Court, Third Judicial District, Anchorage, John Suddock, J., terminated mother's parental rights. Mother appealed.

*Holding: The Supreme Court held that:
(1) trial court did not abuse its discretion in denying mother's motion to continue the termination trial, and
(2) trial court's finding that child was likely to suffer serious physical or emotional damage if returned to mother's custody was supported by sufficient expert testimony and was not clearly erroneous.
Affirmed.

November

In re Interest of Jamyia M.
791 N.W.2d 343
No. A-10-208.
Court of Appeals of Nebraska, November 30, 2010

*Synopsis: State petitioned to terminate parental rights of Native-American parents, whose child was enrolled or was eligible for tribal enrollment in Navajo Nation. The Juvenile Court, Douglas County, Elizabeth Crnkovich, J., entered judgment terminating parental rights. Parents appealed.

*Holding: The Court of Appeals, Inbody, C.J., held that:
(1) State did not make "active efforts" to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family as was necessary to support termination of parental rights under Indian Child Welfare Act, and
(2) exceptions found in parental rights termination statute that would have relieved State from its obligation to provide reasonable reunification efforts upon showing of aggravating circumstances in a non-Indian Child Welfare Act case did not extend to State's obligation to provide "active efforts" pursuant to Indian Child Welfare Act.
Reversed and remanded for further proceedings.

Cash Advance and Preferred Cash Loans v. State of Colorado
242 P.3d 1099
No. 08SC639.
Supreme Court of Colorado, November 30, 2010

*Synopsis: State Attorney General brought action to enforce investigative subpoenas issued against two Internet lending businesses to determine whether their lending practices violated Uniform Commercial Credit Code (UCCC) and the Colorado Consumer Protection Act (CCPA). Purported owners of businesses moved to dismiss, and two corporations formed by tribal nations, claiming to own the businesses, joined the motion, asserting tribal sovereign immunity. The District Court, City and County of Denver, Robert S. Hyatt, J., denied motion. Tribal nations appealed. The Court of Appeals, 205 P.3d 389, reversed. State and tribal nations cross-petitioned for writ of certiorari.

*Holding: The Supreme Court, Martinez, J., held that:
(1) tribal sovereign immunity applies to judicial enforcement of state investigatory actions;
(2) "arms of the tribe" analysis factors are used to determine whether tribe-owned entities are entitled to immunity;
(3) tribal officers are not automatically entitled to immunity; but
(4) tribal nations waived immunity with respect to information directly relevant to any entitlement to immunity.
Affirmed.

In re CD
245 P.3d 724
No. 20090052.
Supreme Court of Utah, November 19, 2010

*Synopsis: After grandfather was awarded permanent custody of mother's children, the State removed the children and initiated abuse and neglect proceedings. The Seventh District Juvenile Court, Monticello, Mary Manley, J., found that grandfather had abused the children and placed them in custody of Division of Child and Family Services, which placed them in non-Indian foster homes while awaiting a permanent placement. Grandfather and mother appealed. The Court of Appeals, 200 P.3d 194, affirmed in part, reversed in part, and remanded. Guardian ad litem filed petition for certiorari, and grandfather filed cross-petition for writ of certiorari.

Holding: The Supreme Court, Parrish, J., held that:
(1) issues raised on certiorari were rendered moot by children's subsequent placement with their respective biological fathers;
(2) grandfather was no longer an Indian custodian and, thus, was no longer entitled to active efforts to prevent the breakup of an Indian family under the ICWA;
(3) moot issues raised on certiorari were not likely to evade review in subsequent litigation, and thus Supreme Court declined to apply the public interest exception to the mootness doctrine; and (4) Supreme Court would exercise its discretion to dismiss the petition for certiorari, rather than vacate court of appeals' opinion.
Petitions dismissed.

In re C.B.
117 Cal.Rptr.3d 846
No. H035085.
Court of Appeal, South District, California, November 18, 2010

*Synopsis: In dependency proceedings, the Superior Court, Santa Clara County, Nos. JD 18556 and JD 18557, Shawna Schwarz, J., terminated mother's and father's parental rights to three minor children. Mother and father appealed.

*Holding: The Court of Appeal, Elia, J., held that:
(1) upon finding that parents established parent-child relationship exception to termination of parental rights, trial court could not proceed with termination on unenforceable expectation that adoptive parents would permit continued contact after adoption;
(2) sibling relationship exception was not established, despite evidence of loving relationship between two younger siblings and their older, seventeen-year old sister;
(3) Indian child exception was not established;
(4) agency made "active efforts" under Indian Child Welfare Act (ICWA) to provide services and programs to children eligible for membership in Indian tribe; and
(5) ICWA notice was insufficient for failure to include known information regarding an ancestor. Reversed and remanded.

State of Hawaii v. Pratt
243 P.3d 289
Nos. 27897, 27898, 27899.
Intermediate Court of Appeals of Hawai'i, November 18, 2010

*Synopsis: Defendant was convicted in the District Court, Fifth Circuit, CR. Nos. HC04-147, HC04-169 and HC04-229, for violating restrictions on camping in closed areas of a State wilderness park. He appealed.

Holding: The Intermediate Court of Appeals, Leonard, J., held that:
(1) defendant failed to establish that he was entitled to access or gathering rights as a lawful occupant or tenant of ahupua'a land within park;
(2) defendant's conduct did not fall within scope of constitutional protection for exercise of ancient Hawaiian usage rights; and
(3) State's action in citing defendant did not violate federal Religious Freedom Restoration Act of 1993.
Affirmed.

 


October

In the Interest of E.C.
259 P.3d 1272
No. 10CA1117
Colorado Court of Appeals, Div. II, October 28, 2010

*Synopsis: Mother commenced an action alleging domestic violence and requesting an allocation of parental responsibilities. County department of social services filed a separate dependency and neglect action. In the dependency action, the District Court, Pueblo County, Deborah R. Eyler, J., issued a permanency planning order, found that the child's aunt should receive an allocation of parental responsibilities, and certified its order as a custody-allocation of parental responsibilities order in the domestic relations case. Father appealed.

*Holding: The Court of Appeals, Gabriel, J., held that:
(1) trial court order in dependency and neglect was final and appealable, though father's parental rights were not terminated;
(2) evidence was sufficient to establish that department made reasonable efforts to finalize the placement of child with aunt;
(3) evidence was sufficient to establish that father made minimal efforts to comply with his treatment plan;
(4) evidence was sufficient to establish that aunt and her family were fit to have placement of child; and
(5) case would be remanded for further findings as to whether the notice provisions of the Indian Child Welfare Act (ICWA) were complied with.
Remanded for further proceedings.

Marsden v. Koop
789 N.W.2d 531
No. 20090285.
Supreme Court of North Dakota, October 19, 2010

*Synopsis: Wife brought divorce action against husband. The Northeast Central Judicial District Court, Nelson County, Debbie Gordon Kleven, J., granted divorce. Wife appealed.

*Holding: The Supreme Court, Crothers, J., held that:
(1) District Court did not arbitrarily disregard custody investigator's recommendation;
(2) District Court did not disregard wife's primary residential responsibility for the children for the year prior to divorce trial;
(3) District Court was not required to make finding regarding children's cultural background;
(4) District Court's findings that statutory child custody factor regarding love favored husband was not clearly erroneous;
(5) District Court's findings that statutory child custody factor regarding moral fitness favored husband was not clearly erroneous;
(6) District Court's findings that there was no evidence of domestic violence which would impact an award of custody was not clearly erroneous; and
(7) District Court's decision to include loan from husband's father to husband as debt of the marital estate was not clearly erroneous.
Affirmed.

State v. Eriksen
Briefs from Turtle Talk Blog
241 P.3d 399
No. 80653-5
Supreme Court of Washington, October 14, 2010

*Synopsis: Defendant, a non-Indian, was convicted in the Superior Court, Whatcom County, Leon F. Henley Jr., J., of driving under the influence (DUI) in connection with an incident in which she was detained by a tribal police officer who pursued her beyond the reservation border after observing alleged traffic infractions. Defendant moved for discretionary review.

*Holding: The Supreme Court, Sanders, J., as matter of first impression, held that tribal officers have authority to continue fresh pursuit of motorists who break traffic laws on reservation and subsequently drive beyond reservation boundaries, and to detain such individuals until authorities with jurisdiction arrive.
Affirmed.

Paquin v. Mack
788 N.W.2d 899
No. A10-1177
Supreme Court of Minnesota, October 7, 2010

*Synopsis: Candidate petitioned Supreme Court to require county auditor to accept a petition nominating him for state senate. Auditor opposed the request.

*Holding: The Supreme Court held that:
(1) auditor did not err in rejecting signatures on nominating petition;
(2) candidate did not meet his burden to prove that leaving his name off of ballot was an error that was required to be corrected;
(3) auditor's rejection of candidate's nominating petition did not violate federal law;
(4) auditor was not estopped from rejecting candidate's nominating petition; and
(5) auditor's enforcement of residence address requirement did not violate candidate's equal protection rights.
Petition denied.

Armijo v. Peublo of Laguna
247 P.3d 1119
NO. 29,893
Court of Appeals of New Mexico, October 6, 2010
Certiorari Denied, No. 32,687, Dec. 6, 2010.

*Synopsis: Board of trustees of a land grant brought quiet title against Native American tribe and individual. Individual brought counterclaims against board and cross-claims against tribe for adverse possession. After parties stipulated to dismissal of board's complaint, tribe moved to dismiss cross-claims. The District Court, Cibola County, William A. Sanchez, D.J., denied motion. Tribe filed interlocutory appeal, which was accepted.

*Holding: The Court of Appeals, Castillo, J., held that:
(1) tribe was entitled to tribal sovereign immunity;
(2) application of tribal sovereign immunity did not violate state constitution; and
(3) tribe was indispensable party.
Reversed and remanded.

*Related News Stories: Court rules sovereign immunity applies to tribal land outside reservation boundaries, (The Native American Times) 03/01/11

In re Interest of Ramon N.
789 N.W.2d 272
No. A-10-265
Court of Appeals of Nebraska, October 5, 2010

*Synopsis: State filed petition seeking to adjudicate minor because he had violated curfew and run from his home. Following adjudication and dispositional hearing, juvenile filed petition to invalidate the proceedings, alleging that procedure did not comply with the Indian Child Welfare Act (ICWA). The Juvenile Court, Lancaster County, Reggie L. Ryder, J., overruled the petition but, after additional evidence was presented as to placement, continued the matter for a further “placement check” hearing. Juvenile appealed.

*Holding: The Court of Appeals, Cassel, J., held that:
(1) state's failure to comply with ICWA pleading requirements when filing petition did not invalidate the final adjudication order, and
(2) child's mother did not qualify as an expert under the ICWA's requirement of evidence or expert testimony showing “active efforts” at providing remedial services and rehabilitative programs. Affirmed in part, reversed in part, and remanded.

September

In re Civil Commitment of Beaulieu
2010 WL 3397335
No. A10-699
Court of Appeals of Minnesota, August 31, 2010

*Synopsis: (from the opinion) In this appeal challenging his civil commitment as a sexually dangerous person (SDP) and sexual psychopathic personality (SPP), Kevin Beaulieau challenges the subject-matter jurisdiction of the district court, because he is an enrolled member of the White Earth Band of Ojibwe. He also claims that there was not clear and convincing evidence to support his civil commitment because respondent's experts failed to offer evidence of how the effects of historical trauma and post-traumatic stress impacted his need for culturally appropriate treatment. Because the district court had subject-matter jurisdiction over this matter and because appellant did not submit clear and convincing evidence to establish that he was in need of alternative treatment, we affirm.

*Holdings: not yet available

 

In the matter of the Adoption of A.B. and D.T. v. State of Utah
666 Utah Adv. Rep. 4
No. 20080211
Supreme Court of Utah, September 28, 2010

*Synopsis: The Juvenile Court, Third District, Salt Lake, Andrew A. Valdez, granted adoption of two children who were both enrolled members of the Navajo Nation by their non-indian foster parents. Nation challenged the adoption order and several other Juvenile Court orders concerning the children.

*Holding: On certification from the Court of Appeals, on issues of first impression, the Supreme Court, Nehring, J., held that:
(1) on issue of first impression, Indian Child Welfare Act (ICWA) did not preempt state's notice of appeal requirements;
(2) on issue of first impression, Nation was not exempt from notice of appeal requirements; and
(3) adoptive parents were not entitled to attorney fees on appeal.
Appeal dismissed.

Allen v. Arkansas Department of Human Services
2010 Ark. App. 608
No. CA10-304
Court of Appeals of Arkansas, September 15, 2010

*Synopsis: State Department of Human Services (DHS) filed petition for termination of mother's parental rights. The Circuit Court, Sebastian County, Mark Hewett, J., granted petition. Mother appealed.

*Holding: The Court of Appeals, Waymond M. Brown, J., held that:
(1) trial court complied with requirement of Indian Child Welfare Act (ICWA) that court make finding that there was proof beyond a reasonable doubt that continued custody of child by mother was likely to result in serious emotional or physical damage to child, and
(2) substantial evidence supported trial court's finding that return of child to mother was likely to result in serious emotional or physical damage to child.
Affirmed.

Bates Associates, L.L.C. v. 132 Associates, L.L.C.
2010 WL 3564848
No. 288826
Court of Appeals of Michigan, September 14, 2010

*Synopsis: (from the opinion) The Tribe argues that the purported waivers of sovereign immunity and tribal court jurisdiction in the settlement agreement are invalid because they were not supported by a resolution of the Tribe's Board of Directors as required under § 44.105 and § 44.109 of the Tribe's Code.

*Holding: not yet available

*Related News Stories: Michigan appellate court rules Sault tribe waived immunity in settling contract dispute, (TurtleTalk) 9/16/2010

In re Jonah D.
116 Cal.Rptr.3d 545
No. B222549
Court of Appeal, Second District, Division 1, California, September 10, 2010

*Synopsis In dependency proceeding, the Superior Court, Los Angeles County, No. CK72856, Jacqueline Lewis, Commissioner, terminated mother's parental rights to child. Mother appealed.

*Holding: The Court of Appeal, Johnson, J., held that grandmother's belief she had Indian heritage was too speculative to require ICWA notice. Affirmed.

State of Washington v. Abrahamson
238 P.3d 533
No. 62699-0-I
Court of Appeals of Washington, September 7, 2010

*Synopsis: Defendant was convicted in the Superior Court, Snohomish County, Bruce I. Weiss, J., of driving while under the influence, attempting to elude, and driving while license revoked. He appealed.

*Holding: The Court of Appeals, Schindler, J., held that the superior court had jurisdiction over the offenses committed by defendant on the public roads on an Indian reservation.
Affirmed.

*Related News Stories: Washington appellate court affirms conviction of Spokane Indian under PL280, (TurtleTalk) 9/9/2010

Seminole Tribe of Florida v Ariz
2010 WL 3419819
No. 2D10-1335
District Court of Appeals of Florida, Second District, September 1, 2010

*Synopsis: Wife of pedestrian who was struck and killed by automobile driven by employee of casino operated by Indian tribe while attempting to walk across county road brought wrongful death action against, among others, the tribe. The Circuit Court, Collier County, Cynthia Pivacek, J., entered order allowing wife to conduct discovery on the issue of subject matter jurisdiction, and continued the hearing on tribe's motion to dismiss. Tribe filed petition for writ of certiorari and petition for writ of prohibition.

*Holding: The District Court of Appeal, Morris, J., held that pedestrian was not a “patron” injured in a casino “facility,” and thus tribe's gaming compact with state did not waive tribe's sovereign immunity. Petition for writ of prohibition granted, petition for writ of certiorari denied.

In the Matter of M.R. L., E.Y. L., Y.I. L., A.J. L., M.L. L., and S.E. L. v. N.L. and B.Z.L.
239 P.3d 255
00389604, 00389606, 00389607, 00389609, 00389611, 00389613, A143877.
Court of Appeals of Oregon, September 1, 2010

*Synopsis: Father and mother appealed from entry of amended judgment of the Circuit Court, Yamhill County, Ronald W. Stone, J., taking jurisdiction over their six minor children based on finding of medical neglect.

*Holding: The Court of Appeals, Ortega, J., held that:
(1) juvenile court's amended judgment was ineffective, requiring Court of Appeals to consider the original jurisdictional/dispositional judgment only;
(2) father's counsel's assertion to the juvenile court that the Indian Child Welfare Act (ICWA) did not apply to case constituted deficient performance;
(3) counsel's deficient performance did not prejudice father because result would have been the same; and
(4) father was prejudiced by juvenile court's failure to meet requirements of statute requiring determination that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.
Reversed and remanded.

 

August

In re Disciplinary Proceedings Against Brown
787 N.W.2d 800
No. 2009AP1678-D
Supreme Court of Wisconsin, August 18, 2010

*Synopsis: Attorney disciplinary proceeding was brought.

*Holding: We The Supreme Court held that public reprimand, together with payment of restitution and costs, was warranted for attorney's misconduct as lead counsel in law firm's representation of Indian tribe, which included representing interests of deposed members of tribal council in actions contrary to governance of interim council and a subsequently elected council.
Attorney publicly reprimanded.

Department of Human Services v. Three Affiliated Tribes of Fort Berthold Reservation
238 P.3d 40
Nos. J06073, J06096, J0607301, J0609601, A143921.
Court of Appeals of Oregon, August 11, 2010

*Synopsis: Following termination of mother and father's parental right to two Indian children, the Circuit Court, Wasco County, John V. Kelly, J., concluded that good cause under the Indian Child Welfare Act existed to designate the adoptive placement for the children as the home of their current foster parents rather than the home designated by the tribes. Tribes appealed.

*Holding: The Court of Appeals, Haselton, P.J., held that: (1) review was limited to examining the record to determine if there was any evidence to support the trial court's factual findings; (2) good cause, as used in section of the Act establishing preferences for the adoptive placements of Indian children, is a legal standard and appellate court consequently reviews a trial court's good cause determination for errors of law; and (3) trial court's finding that the harm to children would be serious and lasting if they were moved from their foster parents' home was legally sufficient to establish good cause to depart from Act's adoptive placement preferences.
Affirmed.

In re Interest of Emma J.
789 N.W.2d 528
No. A-09-1031.
Court of Appeals of Nebraska, August 10, 2010

*Synopsis: State filed petition alleging that Indian child was a child within the jurisdiction of the juvenile court by reason that the child lacked proper parental care due to the faults or habits of her father and her mother. After a hearing, the Juvenile Court, Lancaster County, Reggie L. Ryder, J., adjudicated the child as being a child within the jurisdiction of the juvenile court and placed her outside the home. Father appealed. The Court of Appeals, 18 Neb.App. 389, 782 N.W.2d 330, affirmed in part, reversed in part, and remanded with directions.

*Holding: On State's motion for rehearing, the Court of Appeals withdrew a portion of its prior opinion and held that juvenile court's error in making finding in its adjudication order that State had made active efforts to provide services and rehabilitative programs to prevent the breakup of the Indian family, and in removing child from the family home and placing her in foster care without expert testimony, was harmless. Affirmed.

Mendoza v. Tamaya Enterprises, Inc.
238 P.3d 903
No. 32,447
Court of Appeals of New Mexico, August 10, 2010

*Synopsis: Personal representatives of decedents brought wrongful death action against casino alleging that casino sold alcohol to decedents at a social function despite their intoxication and, as a result of casino's negligence, they were killed on their way home in a single-vehicle automobile accident. The District Court, Bernalillo County, Nan G. Nash, D.J., dismissed the action for failure to state a claim upon which relief could have been granted. Representatives appealed.

*Holding: The Court of Appeals, Robles, J., held that: (1) plaintiffs argued and thereby preserved an injured, third=party common law claim; (2) pleadings were sufficient as to injured, third-party common law claim; and (3) scope of duty on casino extended to patrons.
Reversed and remanded.

State of Montana v. James
237 P.3d 672
No. DA 09-0280
Supreme Court of Montana, August 10, 2010

*Synopsis: Defendant was convicted in the District Court of the Twentieth Judicial District, Lake County, Deborah Kim Christopher, Presiding Judge, of felony criminal endangerment and misdemeanor partner-family member assault. Defendant appealed.

*Holding: The Supreme Court, Mike McGrath, C.J., held that:
(1) prosecution of defendant in tribal court for eluding a police officer arose out of the same transaction as the charge of felony criminal endangerment, for purposes of double jeopardy;
(2) defendant did not establish that prosecution's use of peremptory challenges to strike tribal members was purposeful discrimination in violation of Batson; and
(3) trial court did not abuse its discretion by denying defendant's Brady motion for a new trial based on prosecution's failure to turn over photograph of victim.
Affirmed in part, reversed in part, and remanded with instructions.

In re the Welfare OF L.N.B.-L.
237 P.3d 944
Nos. 38850-2-II, 38854-5-II
Court of Appeals of Washington, August 3, 2010

*Synopsis: The Department of Social and Health Services petitioned for termination of mother's and father's parental rights. Following a hearing, the Superior Court, Kitsap County, Russell W. Hartman, J., granted the petition, and parents appealed.

*Holding: On motion for reconsideration, the Court of Appeals, Penoyar, C.J., held that:
(1) neither Indian Child Welfare Act (ICWA) nor state statute required Department to give Squamish Nation, a non-federally recognized tribe, notice of the termination proceedings;
(2) ICWA required Department to notify Cherokee tribe and the "Black Foot" tribe of the termination proceedings;
(3) intervention of the Nooksack Tribe precluded the need for strict compliance with any provisions requiring notice to the Tribe;
(4) designated expert of the Nooksack Tribe was a "qualified expert witness" under the ICWA, despite her difficulty in describing a Nooksack family unit;
(5) evidence was sufficient to establish that continuation of father's and mother's parental relationship likely would result in serious emotional or physical damage to their children;
(6) evidence was sufficient to establish that active efforts were made to prevent the breakup of the Indian family;
(7) evidence was sufficient to establish that Department provided mother and father with all necessary services to correct their parental deficiencies; and
(8) evidence was sufficient to establish that termination of parental rights was in children's best interests.
Affirmed in part and remanded in part.

July

In re Anaya J.G.
932 N.E.2d 1192
No. 1-10-0132
Appellate Court of Illinois, July 30, 2010

*Synopsis: The State filed a petition to terminate mother's parental rights to child. The Circuit Court, Cook County, No. 06 JA 175, Demetrios G. Kottaras, J., terminated parental rights. Mother appealed.

*Holding: The Appellate Court, Lavin, J., held that: (1) evidence was insufficient to give the trial court reason to know that child was a member of an Indian tribe, so as to trigger the notification requirements under the Indian Child Welfare Act; (2) denial of motion for a continuance of the best interest hearing was not an abuse of discretion; and (3) trial court determination that termination of mother's parental rights was in child's best interests was not against the manifest weight of the evidence.
Affirmed.

Cardona v. Kreamer
235 P.3d 1026
No. CV-10-0017-PR
Supreme Court of Arizona, En Banc, July 30, 2010

*Synopsis: Native American tribe filed action against individual residents of Mexico and four Mexican corporate entities regarding casino project in Mexico. The Superior Court, Maricopa County, No. CV2008-090935, Joseph Kreamer, J., denied residents' and corporate entities' motion to dismiss for insufficiency of service of process. Residents and corporate entities appealed.

*Holding: After the Court of Appeals declined special action jurisdiction, the Supreme Court, W. Scott Bales, J., held that service on persons and entities in Mexico could only be effected, under the Hague Service Convention, by service through Mexico's Ministry of Foreign Affairs.
Vacated and remanded.

In re Skyler H.
112 Cal.Rptr.3d 892
No. D056307
Court of Appeal, Fourth District, Division 1, California, July 28, 2010

*Synopsis: (from the opinion) County health and human services agency filed a petition to terminate mother and father's parental rights to child. The Superior Court, San Diego County, No. J514948, Gary W. Bubis, J., terminated parental rights. Mother appealed...While the standard for ICWA notice is low, it is not without reasonable limits. This case raises the issue whether a child's specific but attenuated Indian heritage invokes ICWA notice requirements under section 224.3, subdivision (b), which describes circumstances that may provide reason to know the child is an Indian child. We hold the trial court has discretion to consider the totality of the information presented concerning the child's family circumstances to determine whether it meets the threshold required for ICWA notice-“the court knows or has reason to know the child is an Indian child.” (§ 224.2.) We further hold ICWA notice is not required unless the totality of the family's circumstances indicate there is a low but reasonable probability the child is an Indian child. Here, we conclude the case need not be remanded for ICWA notice because the family's specific but attenuated Indian heritage does not provide reason to know the child is an Indian child.

*Holding: The Court of Appeal, Benke, Acting P.J., held that:
(1) information that child's great-greatgreat-grandfather was “full-blooded Cherokee” and her maternal grandmother participated in an annual Indian pow-wow was insufficient to establish that child was an Indian child;
(2) mother's due process right to be heard was not violated by the trial court when it considered county health and human services agency reports when ruling on mother's petition alleging a change in circumstances; and
(3) evidence was insufficient to establish the exception to termination of parental rights based on mother maintaining regular visitation and contact with child and child benefiting from the relationship.
Affirmed.

J.P.H. v. Florida Department of Children and Families
39 So.3d 560
No. 1D10-1725, 1D10-1924District Court of Appeal of Florida, First District, July 23, 2010

*Synopsis: (from the opinion) We sua sponte consolidate for disposition these appeals of an order terminating appellants' parental rights. Appellees forthrightly concede that because the proceedings involved Indian children within the meaning of the Indian Child Welfare Act, 25 U.S.C. § 1912, et seq., the trial court erred in not applying the standards and requirements of the Act. Most notably the trial court did not apply 25 U.S.C. § 1912(f), which requires that any order terminating parental rights to an Indian child be supported “by evidence beyond a reasonable doubt,” rather than the clear and convincing evidence standard set forth in Chapter 39, Florida Statutes.

*Holding: not yet available

In re B.C.
786 N.W.2d 350
Nos. 25423, 25466, 25503, 25559
Supreme Court of South Dakota, July 14, 2010

*Synopsis: The Circuit Court of The Second Judicial Circuit Minnehaha County, Kathleen K. Caldwell, P.J., and Robin J. Houwman, J., and the Circuit Court Of The Seventh Judicial Circuit Pennington County, Jeff W. Davis, P.J., terminated parental rights. Parents appealed. The State filed motions to dismiss appeals.

*Holding: The Supreme Court held that failure of parents to file notice of appeal on Tribes that had intervened required dismissal.
Motions to dismiss appeals granted.

Schirado v. Foote
785 N.W.2d 235
No. 20090282
Supreme Court of North Dakota, July 13, 2010

Subjects: not yet available

*Synopsis: Purported father brought action against mother of minor child seeking paternity and custody if he was father of the child. The District Court, Burleigh County, South Central Judicial District, David E. Reich, J., granted mother's motion to dismiss based on lack of jurisdiction. Father appealed.

*Holding: The Supreme Court, Daniel J. Crothers, J., held that trial court was required to specify what its home state determination was based on in dismissing action for lack of jurisdiction. Reversed and remanded.

Dale H. v. State of Alaska, Department of Health & Social Services, Office of Children's Services
235 P.3d 203
No. S-13632
Supreme Court of Alaska, July 9, 2010

*Synopsis: Office of Children's Services (OCS) filed petition to terminate father's parental rights. Following a trial, the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, J., granted petition, and father appealed.

*Holding: The Supreme Court, Stowers, J., held that:
(1) evidence was sufficient to establish that father had abandoned his son;
(2) evidence was sufficient to establish that father had failed to remedy the conduct and conditions that placed his son at risk;
(3) OCS made active efforts to prevent the breakup of an Indian family, as required to terminate father's parental rights under the Indian Child Welfare Act (ICWA);
(4) return of son to father was likely to result in serious emotional or physical damage; and
(5) evidence was sufficient to establish that termination of parental rights was in the best interest of son.
Affirmed.

Edmondson v. Native Wholesale Supply
Briefs from Turtle Talk Blog

237 P.3d 199
No. 107241
Supreme Court of Oklahoma, July 6, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: not yet available

*Synopsis: Attorney General brought action against cigarette importer and distributor, which was a tribally-chartered corporation wholly owned by an individual of Native-American ancestry, alleging violations of the Oklahoma Master Settlement Agreement Complementary Act. Cigarette importer moved for dismissal based on lack of personal and subject matter jurisdiction. The District Court, Oklahoma County, Bryan C. Dixon, J., denied the motion as to personal jurisdiction, but entered judgment for importer upon finding that enforcement of the Complementary Act against importer would violate the Indian Commerce Clause, depriving the trial court of subject matter jurisdiction. Both parties appealed.

*Holding: The Supreme Court, Opala, J., held that:
(1) cigarette importer and distributor had sufficient minimum contacts with Oklahoma to satisfy due process requirements for asserting personal jurisdiction;
(2) importer and distributor was not clothed with tribal immunity from suit;
(3) enforcement of Oklahoma Master Settlement Agreement Complementary Act against cigarette importer did not violate the Indian Commerce Clause.
Affirmed in part, reversed in part, and remanded.

 

June

In re the Welfare of L.N.B.-L.
156 Wash.App. 591
No. 28850-2-II, 38854-5-II
Court of Appeals of Washington, Division 2, June 29, 2010
The opinion was withdrawn on grant of consideration.

Subjects: not yet available

*Synopsis: (from the opinion) JB-L and KL, the mother and father, respectively, of four-year old LNB-L and three-year old ADB-L, appeal the juvenile court's order terminating their parental rights. LNB-L and ADB-L each qualify as an “Indian child” under the Indian Child Welfare Act (ICWA).FN2 JB-L and KL assign error to several findings of fact and conclusions of law, and they assert that the Department of Social and Health Services failed to establish several elements of RCW 13.34.180(1) and ICWA. The parents raise numerous other arguments, including the Department's alleged failure to provide proper notice to Indian tribes that had an interest in the proceedings. We affirm the termination orders, but we hold that the Department should have notified three additional tribes under state law. Therefore, we remand for proper notice. If the notified tribes decline to intervene, the termination orders will stand. If any of the tribes chooses to intervene, the juvenile court shall hold further proceedings consistent with this opinion.

*Holding: The Court of Appeals, Penoyar, J., held that:
(1) state statute required the Department to notify the Squamish, Cherokee, and Black Foot Tribes, in addition to the Nooksack Tribe;
(2) intervention of the Nooksack Tribe precluded the need for strict compliance with any provisions requiring notice to the Tribe;
(3) designated expert of the Nooksack Tribe was a qualified expert witness under the Indian Child Welfare Act (ICWA), despite her difficulty in describing a Nooksack family unit;
(4) evidence was sufficient to establish that continuation of father's and mother's parental relationship likely would result in serious emotional or physical damage to their children;
(5) evidence was sufficient to establish that active efforts were made to prevent the breakup of the Indian family;
(6) evidence was sufficient to establish that Department provided mother and father with all necessary services to correct their parental deficiencies; and
(7) evidence was sufficient to establish that termination of parental rights was in children's best interests.
Affirmed in part and remanded in part.

Osterkamp v. Stiles
235 P.3d 178
No. S-13297, S-13317
Supreme Court of Alaska, June 25, 2010

Subjects: not yet available

*Synopsis: Former foster parent brought action against child's adoptive mother, who had also previously served as foster parent during time in which they were domestic partners, seeking custody and visitation of child. Following bench trial, the Superior Court, Third Judicial District, Anchorage, Jack Smith, J., awarded sole physical and legal custody to adoptive mother. Former foster parent appealed.

*Holding: The Supreme Court, Christen, J., held that:
(1) finding that former foster parent failed to establish psychological parent status was not clearly erroneous;
(2) former foster parent failed to establish entitlement to visitation;
(3) characterization of transfer of funds to former foster parent and adoptive mother as loans rather than gifts was not clearly erroneous;
(4) award of interim attorney fees to adoptive mother was not manifestly unjust; and
(5) trial court was required to give notice to former foster parent prior to issuing writ of assistance to adoptive mother.
Affirmed.

In re Kyle E.
111 Cal.Rptr.3d 199
No. C061669
Court of Appeal, Third District, California, June 22, 2010

Subjects: not yet available

Synopsis: In juvenile dependency proceeding, the Superior Court, Sacramento County, No. JD222236, Scott P. Harman, Juvenile Court Referee, adjudged the minor a dependent child, committed him to the care and custody of county department of health and human services, ordered regular visitation with mother, and provided for supervised visitation with presumed father. Presumed father appealed.

Holding: The Court of Appeal, Butz, J., held that:
(1) written visitation order improperly delegated to department the responsibility to determine whether presumed father's visitation with child would occur at all, and
(2) oral pronouncement of visitation order could not be reconciled with juvenile court's written order, requiring remand for clarification of the terms and conditions applicable to presumed father's visitation.
Reversed in part and affirmed in part.

In the Interest of C.A.V.
787 N.W.2d 96
No. 10-0075
Court of Appeals of Iowa, June 16, 2010

Subjects: not yet available

*Synopsis: A father appeals the termination of his parental rights in a private termination action. He contends he did not abandon his daughter, who is an enrolled member of an Indian tribe. He further contends the child's mother failed to satisfy the Iowa Indian Child Welfare Act (Iowa ICWA), Iowa Code chapter 232B (2007) in two ways: (1) by not showing his continued custody was likely to result in serious emotional or physical damage to his daughter and (2) by not providing evidence of “active efforts” to prevent the break-up of the Indian family. We affirm the juvenile court's decision.

*Holding: The Court of Appeals, Tabor, J., held that:
(1) mother was required to prove the elements of abandonment by clear and convincing evidence;
(2) evidence supported finding that father abandoned child;
(3) evidence supported finding that father's continued custody of Indian child was likely to result in serious emotional or physical damage to the child; and
(4) evidence was sufficient to establish that mother met the “active efforts” requirement of the Iowa Indian Child Welfare Act (ICWA).
Affirmed.

In the Matter of M.S.
237 P.3d 161
No. 103921
Supreme Court of Oklahoma, June 15, 2010

Subjects: not yet available

*Synopsis: Indian tribe sought to transfer jurisdiction of dependency case involving Indian children to tribal court, or to change placement of children to a tribal member. The trial court denied relief. Tribe appealed. The Court of Civil Appeals affirmed. Tribe sought certiorari review..

*Holding: After granting certiorari, the Supreme Court, Watt, J., held that:
(1) the clear and convincing evidence standard of review applied to an analysis of whether “good cause” existed to decline to transfer jurisdiction over a child dependency or child placement proceeding involving an Indian child to an Indian tribal court; overruling In the Matter of J.B., 1995 OK CIV APP 91, 900 P.2d 1014, and
(2) the trial court's determination that there was good cause not to transfer proceeding concerning placement of Indian children to tribal court was against the clear and convincing evidence. Reversed and remanded.

In re the adoption of D.C.
928 N.E.2d 602
No. 49A02-0909-CV-862
Court of Appeals of Indiana, June 9, 2010

Subjects: not yet available

*Synopsis: Child's stepfather petitioned for adoption of biological father's child. The Marion Superior Court, Tanya Walton Pratt, J., granted petition, and father appealed.

*Holding: The Court of Appeals, Bailey, J., held that:
(1) Indian Child Welfare Act did not apply to stepfather's petition to adopt Native American biological father's child;
(2) father's consent to adoption was not required; and
(3) child's adoption by stepfather was in best interest of child.
Affirmed.

State of New Mexico v. David Harrison
238 P.3d 869
No. 31,224
Supreme Court of New Mexico, June 8, 2010

*Synopsis: In this appeal, we must determine whether a state, county, or local peace officer, who is not cross-commissioned with the Bureau of Indian Affairs (BIA) or an Indian nation, tribe, or pueblo, see NMSA 1978, § 29-1-11 (2005), has the authority to pursue an Indian into Indian country to investigate an off-reservation crime committed in the officer's presence. We conclude that state officers have the authority to enter Indian country to investigate off-reservation crimes committed by Indians, so long as their investigation does not infringe on tribal sovereignty by circumventing or contravening a governing tribal procedure.

*Holding: The Supreme Court, Maes, J., held that:
(1) it would exercise its discretion to review the merits of defendant's unpreserved claim on appeal; (2) county peace officer had authority to stop defendant's vehicle in Indian country to determine the scope of officer's authority to investigate off-reservation traffic offenses committed in officer's presence;
(3) officer's actions, administering field sobriety tests to defendant in Indian country, did not violate the tribal sovereignty of Indian nation; and
(4) officer's detention of defendant did not exceed the bounds of a permissible traffic stop and ripen into a de facto arrest.
Affirmed.

Kent v. State Department of Health and Social Services
233 P.3d 597
No. S-13578
Supreme Court of Alaska, June 4, 2010

Subjects: not yet available

*Synopsis: After an initial petition to terminate parental rights was filed, the Office of Children's Services (OCS) filed a second petition to terminate mother and father's parental rights. The Superior Court, Third Judicial District, Palmer, Kari Kristiansen and Vanessa White, JJ., terminated parental rights. Father appealed.

*Holding:The Supreme Court, Christen, J., held that:
(1) as a matter of first impression, the OCS's second petition to terminate
father's parental rights was not barred by the doctrine of res judicata, and
(2) the trial court could consider new evidence regarding mother's circumstances
when determining whether to terminate father's parental rights.
Affirmed.

In re marriage of Baker
234 P.3d 70
No. DA 09-0586
Supreme Court of Montana, June 3, 2010

Subjects: not yet available

*Synopsis: Wife appealed from decision of the District Court of the Twentieth Judicial District, Lake County, Deborah Kim Christopher, P.J., distributing the parties' marital estate.

*Holding:The Supreme Court, James C. Nelson, J., held that:
(1) correct date for valuing and distributing the marital estate was the date of parties' separation, as alleged in wife's petition for dissolution and as admitted in husband's answer;
(2) District Court erred in concluding that parties separated on date that was 5 years earlier than the date that husband admitted in his answer; and
(3) District Court erred in including in wife's share of the marital estate the value of the tribal trust land that she leased.
Reversed and remanded.

Feather Smoke Shops, LLC v. Oklahoma Tax Commission
236 P.3d 54
No. 106,247
Supreme Court of Oklahoma, June 1, 2010

*Synopsis: Native American smoke shop retailer sought declaratory judgment on applicable tax rate in lieu of state taxes under tobacco compact between state and tribe and sought injunctive relief against Tax Commission. The District Court, Osage County, B. David Gambill, J., granted temporary injunction against Commission. Commission appealed.

*Holding: The Supreme Court, Watt, J., held that compact required federal arbitration, and, thus, the District Court lacked jurisdiction to enter injunction.
Vacated and remanded.

 

May

Civil Commitment of Johnson
782 N.W.2d 274
No. A09-2225, A09-2226
Court of Appeals of Minnesota, May 18, 2010

Subjects: not yet available

*Synopsis: Enrolled members of Leech Lake and Bois Forte bands of Minnesota Chippewa Indian tribe moved to dismiss, for lack of subject-matter jurisdiction, county's proceedings to have each of them civilly committed as a sexually dangerous person (SDP). The District Court, Cass County, John P. Smith, J., denied motions. Tribe members appealed.

*Holding: The Court of Appeals, Hudson, J., held that:
(1) Public Law 280 does not expressly grant the state courts subject-matter
jurisdiction to civilly commit enrolled member of federally recognized Indian
tribe as an SDP; but
(2) state courts had subject-matter jurisdiction, even without express consent
of Congress, to civilly commit enrolled members of Minnesota Chippewa Indian tribe
as SDPs, as exceptional circumstances existed and federal law did not preempt
state jurisdiction.
Affirmed.

Davis v. Mayberry
241 P.3d 663
No. 107,035.
Court of Civil Appeals of Oklahoma, May 14, 2010

*Synopsis: Purchaser brought action to quiet title and partition a 160 acre tract of property. While the case was pending, claimant purchased an undivided 11/60 interest in the property. Purchaser amended his petition adding claimant as defendant, and claimants counter-claimed, asserting title by virtue of tax deed, and/or adverse possession. The Secretary of the Interior, through the field solicitor filed a reply/answer to claimant's cross-petition seeking to invalidate tax deed. The District Court, Creek County, Douglas W. Golden, J., granted Secretary's motion for partial summary judgment, finding tax deed void, but overruled in part with regard to claimants' adverse possession claim. Following trial, the District Court entered judgment in favor of purchaser, finding him to be the true and rightful owner, cancelled claimants' adverse possession claims, and ordered Secretary to remit taxes, penalties, interests and costs to claimants. Claimants appealed.

*Holding: The Court of Civil Appeals, Carol M. Hansen, J., held that:
(1) county treasurer was without jurisdiction to issue tax deed to an undivided 11/60 interest in 160 acre tract of property which was taxable Restricted Indian Land, and thus, tax deed was void, and
(2) District Court's determination that claimants did not meet their burden of proof to establish title to an undivided 11/60 interest in a 160 acre tract of property by adverse possession was not an abuse of discretion, absent a showing of continuous possession for a period of five years.
Affirmed.

In the Matter of the Welfare of the Child of S.L.J.
782 N.W.2d 549
No. A09-80
Court of Appeals of Minnesota, May 14, 2010

Subjects: not yet available

*Synopsis: Private attorney, who was appointed in termination of parental rights action to represent indigent parent who was entitled to counsel under federal Indian Child Welfare Act (ICWA), sought order requiring county to pay his attorney fees and expenses. The District Court, Rice County, Thomas M. Neuville, J., issued a peremptory writ of mandamus requiring county to pay attorney and to establish a system for payment of costs for representing indigent parents in juvenile protection cases. County appealed. The Court of Appeals, 772 N.W.2d 833, affirmed in part and reversed in part. County filed petition for review.

*Holding: The Supreme Court, Magnuson, C.J., held that:
(1) although entitled to appointed counsel under ICWA, indigent Indian parents in juvenile protection proceedings are not entitled to the appointment of a public defender;
(2) the cost of court-appointed counsel to represent indigent Indian parents in juvenile protection proceedings is to be paid by the county in which the juvenile protection proceedings are held; and (3) a judicial order compelling the payment of county funds must be paid no later than the first fiscal year after the order is received by the county. Affirmed.

Antonio v. Inn of the Mountain Gods Resort and Casino
242 P.3d 425
No. 29,377
Court of Appeals of New Mexico, May 13, 2010

*Synopsis: Injured employee filed claim against tribal owned casino for additional state employer's workers' compensation after collecting benefits under tribe's workers' compensation program. The Workers' Compensation Administration (WCA), Victor S. Lopez, Workers' Compensation Judge, dismissed complaint based on lack of subject matter jurisdiction. Employee appealed.

*Holding: The Court of Appeals, Robles, J., held that:
(1) tribe's sovereign immunity applied to preclude WCA's jurisdiction over tribe, and
(2) question of whether worker had not been provided adequate workers' compensation was unreviewable because he failed to exhaust his tribal remedies.
Affirmed.

State v. Maybee
232 P.3d 970
No. 06C12593; A139270
Court of Appeals of Oregon, May 12, 2010

*Synopsis: Attorney General sought injunction prohibiting tobacco retailer from selling cigarette brands to consumers in Oregon that were not listed in state cigarette brand directory. The Circuit Court, Marion County, Mary Mertens James, J., granted summary judgment in favor of the state. Retailer appealed.

*Holding: The Court of Appeals, Schuman, P.J., held that:
(1) trial court had subject matter jurisdiction to adjudicate claims;
(2) statutory requirement applied to both cigarettes stamped with state tax stamp and unstamped cigarettes;
(3) retailer's sales took place in the state; and
(4) requirement did not violate dormant commerce clause.
Affirmed.

Timmons v. Arkansas Department of Human Services
2010 WL 1904519
No. CA10-71
Court of Appeals of Arkansas, May 12, 2010

Subjects: not yet available

*Synopsis: Mother appealed from order of the Circuit Court, Sebastian County, Mark Hewett, J., that terminated her parental rights to her twenty-two-month-old, Indian child.

*Holding: The Court of Appeals, Rita W. Gruber, J., held that:
(1) required burden of proof under the state termination of parental rights statute was clear and convincing evidence, and
(2) evidence supported finding that mother had not remedied conditions that led to child's removal, and potential risk of harm existed if child were returned to mother.
Affirmed.

In re Interest of Emma J.
782 N.W.2d 330
No. A-09-1031
Court of Appeals of Nebraska, May 11, 2010

Subjects: not yet available

*Synopsis: Indian father appealed from order of the Separate Juvenile Court, Lancaster County, Reggie L. Ryder, J., adjudicating his minor child homeless, destitute, without proper support, or abandoned...Case No. A-09-1031 is before this court on the motion for rehearing filed by the State of Nebraska, appellee, regarding our opinion reported at In re Interest of Emma J., ante p. 389, 782 N.W.2d 330 (2010). We overrule the motion, but for purposes of clarification, we modify the opinion as follows.

*Holding: The Court of Appeals, Inbody, C.J., held that evidence was sufficient to support adjudication of child as homeless, destitute, without proper support, or abandoned. Affirmed in part, reversed in part, and remanded with directions.

Cayuga Indian Nation of New York v. Gould
930 N.E.2d 233
No. 74
Court of Appeals of New York, May 11, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: not yet available

*Synopsis: Indian tribe brought action against counties' sheriffs and district attorneys, seeking, inter alia, judgment declaring that statute governing taxes imposed on qualified reservations provided exclusive means by which to tax cigarette sales on an Indian reservation to non-Indians and non-member Indians, and that tribe's two convenience stores were located within a qualified reservation. The Supreme Court, Monroe County, Kenneth R. Fisher, J., 21 Misc.3d 1142(A), 2008 WL 5158093, denied tribe's motion for summary judgment and granted sheriffs' cross-motion for summary judgment. Tribe appealed. The Supreme Court, Appellate Division, 66 A.D.3d 100, 884 N.Y.S.2d 510, reversed. Leave to appeal was granted.

*Holding: The Court of Appeals, Graffeo, J., held that:
(1) execution of search warrant did not preclude tribe from bringing declaratory judgment action;
(2) convenience stores were located on a “qualified reservation”; and
(3) tribe's retailers could not be prosecuted for possession and sale of untaxed cigarettes.
Affirmed as modified.

State v. Jim
230 P.3d 1080
No. 28079-9-III
Court of Appeals of Washington, Division 3, May 11, 2010

Subjects: not yet available

*Synopsis: State appealed from decision of District Court dismissing, on jurisdiction grounds, the prosecution of an enrolled member of an Indian tribe for second-degree unlawful use of a net and retaining undersized sturgeon. The Superior Court, Klickitat County, E. Thompson Reynolds, J., reversed. Discretionary review was granted.

*Holding: The Court of Appeals, Stephen M. Brown, A.C.J., held that State lacked jurisdiction to prosecute defendant for fishing violations at the Maryhill Treaty Fishing Access Site, though that site was not on Yakama reservation land, where the site was acquired for Indians' use and benefit in lieu of treaty fishing grounds submerged or destroyed by dam construction.
Superior Court reversed.

 

April

State v. Arizona Navigable Stream Adjudication Commission
581 Ariz. Adv. Rep. 19
No. 1 CA-CV 07-0704
Court of Appeals of Arizona, Division 1, Department C, April 27, 2010

Subjects: not yet available

*Synopsis: Arizona State Land Department (ASLD) and the State Land Commissioner, acting as an advocate for the public trust, sought judicial review of administrative decision of the Arizona Navigable Stream Adjudication Commission (ANSAC) that the Lower Salt River was not navigable when Arizona became a state. The Superior Court, Maricopa County, No. LC2006-000413-001 DT, Carey Snyder Hyatt, J., affirmed. State and others appealed.

*Holding: The Court of Appeals, Winthrop, P.J., held that:
(1) ANSAC was required to determine what river in its ordinary and natural
condition looked like when Arizona became state, as a matter of first impression;
(2) ANSAC did not err by considering evidence that evaluated river after dams,
canals, and other man-made diversions were constructed; and
(3) finding in prior action that river was not and never had been navigable was
not res judicata.
Vacated and remanded.

Davidson v. State
781 N.W.2d 72
No. 20100022
Supreme Court of North Dakota, April 8, 2010

Subjects: not yet available

*Synopsis: Enrolled members of Native American tribe brought action against State Board of Higher Education to enforce settlement agreement between Board and National Collegiate Athletic Association (NCAA) and to enjoin Board from shortening time period for their tribe and another tribe to consider approving or rejecting school's use of “Fighting Sioux” nickname and logo. The District Court, Ramsey County, Northeast Judicial District, Michael G. Sturdevant, J., dismissed. Members appealed.

*Holding: The Supreme Court, Sandstrom, J., held that Board could retire nickname before deadline in settlement agreement for it to either retire nickname or obtain namesake approval from tribes. Affirmed.

 

March

In re M.B.
107 Cal.Rptr.3d 107
No. E048581
Court of Appeal, Fourth District, Division 2, California, March 22, 2010

Subjects: not yet available

*Synopsis: The Superior Court, Riverside County, No. RIJ102216, Bradley O. Snell, Temporary Judge, terminated parents' rights to child. Parents appealed.

*Holding: The Court of Appeal, Ramirez, P.J. held that:
(1) Indian expert was not required to interview parents in performing Indian
Child Welfare Act (ICWA) investigation, and
(2) child's continued custody by parents was likely to result in serious
physical or emotional damage.
Affirmed.

In the interest of A.R.Y.-M.
230 P.3d 1259
No. 09CA2295
Colorado Court of Appeals, Div. V, March 18, 2010

Subjects: not yet available

*Synopsis: The department of human services filed a petition to terminate mother's parental rights. The Juvenile Court, City and County of Denver, No. 06JV1428, Karen M. Ashby, J., terminated parental rights. Mother appealed.

*Holding: The Court of Appeals, Nieto, J., held that:
(1) errors in the notice provided to Indian tribe regarding dependency proceeding involving child were harmless, and
(2) reversal of order terminating mother's parental rights was not required based on the failure to send notice of the termination hearing to Indian tribe.
Affirmed.

Mike v. Franchise Tax Board
106 Cal.Rptr.3d 139
No. D054439
Court of Appeal, Fourth District, Division 1, California, March 5, 2010

Subjects: not yet available

*Synopsis: Taxpayer brought action against Franchise Tax Board (FTB) for refund of income taxes attributable to distributions from gaming operations on her tribe's reservation. The Superior Court, San Diego County, No. 2007-00067324-CU-MC-CTL, Richard E.L. Strauss, J., entered judgment for FTB. Taxpayer appealed.

*Holding: The Court of Appeal, McDonald, J., held that:
(1) on issue of first impression, income from activities on taxpayer's tribe's reservation earned while taxpayer resided on another reservation was taxable, and
(2) the tax did not violate taxpayer's right to equal protection.
Affirmed.

Related News Stories: Court rules that tribal member must pay taxes (MyDesert.com) 03/09/10

In re C.C. and Ci.C.
932 N.E.2d 360
Nos. 94013, 94014.
Court of Appeals of Ohio Eighth Dist. , March 4, 2010

*Synopsis: Termination of parental rights action was commenced. The Court of Common Pleas, Juvenile Division, Cuyahoga County, Nos AD 08936260 and AD 08936265, entered termination orders as to father's rights to son and daughter and granted custody to Department of Children and Family Services. Father appealed.

*Holding: The Court of Appeals, Melody J. Stewart, J., held that:
(1) father failed to prove that daughter was the biological child of a member of an Indian tribe;
(2) evidence was sufficient to support finding that father had failed to remedy conditions which caused children to be taken from home, even if he had fully complied with agency's case plan; and (3) father failed to demonstrate ineffective assistance of counsel.
Affirmed.

 

February

Parachester Village Neighborhood Council v. City of Richmond
105 Cal.Rptr.3d 736
No. A123859
Court of Appeal, First District, Division 1, California, February 24, 2010

Subjects: not yet available

*Synopsis: Objectors filed petition for writ of mandate and a complaint seeking declaratory and injunctive relief against city, alleging that city was required to conduct environmental review pursuant to Environmental Quality cat before entering into municipal services agreement to Indian tribe's proposed nearby casino. The Superior Court, Contra Costa County, No. CIV MSC07- 01090, Barbara Zuniga, J., granted peremptory writ of mandate, invalidating the agreement, and city appealed.

*Holding: The Court of Appeal, Dondero, J., held that:
(1) casino was not a "project" of the city, and
(2) city's entry into agreement was not approval of a "project".
Reversed and remanded.

In the Matter of Hanna
227 P.3d 596
No. DA 09-0463
Supreme Court of Montana, February 23, 2010

Subjects: not yet available

*Synopsis: After the Child and Family Services Division (CFSD) issued a substantiated report of abuse and neglect to foster mother, she sought a fair hearing. At the hearing she moved to dismiss the substantiation proceeding on jurisdictional grounds and argued that the Indian tribes maintained exclusive jurisdiction. A hearing officer at the Department of Public Health and Human Services (DPHHS) dismissed the substantiation proceeding. The CFSD appealed. The District Court of the First Judicial District, Lewis and Clark County, No. ADV 08-599, Dorothy McCarter, J., reversed. Foster mother appealed.

*Holding: The Supreme Court, W. William Leaphart, J., held that:
(1) the Memorandum of Agreement (MOA) between Indian tribes and the DPHHS was a
valid, federally-authorized agreement, and
(2) the MOA authorized the CFSD to pursue a substantiation proceeding against
foster mother for the alleged abuse of Indian child.
Affirmed.

Shakopee Mdewakanton Sioux (Dakota) Gaming Enterprise vs. Prescott
779 N.W.2d 320
No. A09-684
Court of Appeals of Minnesota, February 23, 2010

Subjects: not yet available

*Synopsis:Tribal judgment creditor entered judgment and obtained writ of execution against tribal judgment creditor. The District Court, Scott County, Diane M. Hanson, J., 2007 WL 2769666, ruled that the judgment would not be recognized or enforced. Judgment creditor appealed.

*Holding: The Court of Appeals, Bjorkman, J., held that:
(1) trial court had discretion to recognize judgment, and
(2) trial court abused its discretion in not recognizing or enforcing it.
Reversed and remanded.

Morigeau vs. Gorman
225 P.3d 1260
No. DA 09-0214
Court of Appeals of Montana, February 19, 2010

Subjects: not yet available

*Synopsis: Tribal member's wife brought action against physician and medical clinic, asserting claims for medical negligence, and for wrongful death and survival on behalf of his estate. The 11th Judicial District Court, County of Flathead, Ted O. Lympus, J., dismissed complaint for lack of jurisdiction, and wife appealed.

*Holding: The Supreme Court, Mike McGrath, J., held that district court did not lack jurisdiction over action brought by wife of tribal member for claims arising from actions that occurred in part on reservation land.
Reversed and remanded.

In re the general adjudication of all rights to use water in the Gila River system and source
224 P.3d 178
No. WC-07-0001-IR, WC-07-0003-IR
Supreme Court of Arizona, February 19, 2010

Subjects: not yet available

*Synopsis: As part of adjudication of water rights of users of river, the Superior Court, Maricopa County, Eddward P. Ballinger, Jr., J., approved agreement settling Indian tribe's claims to water rights in river, and granted summary disposition disposing of objections of non-settling parties. Non-settling parties filed interlocutory appeal.

*Holding: The Supreme Court, sitting en banc, Pelander, J., held that:
(1) agreement did not affect the water rights or remedies for injury to water rights of non-settling parties;
(2) agreement did not allocate more water to tribe than it could have proved at trial;
(3) agreement did not unlawfully bind non-settling parties; and
(4) agreement's safe harbor provision did not violate non-settling party's equal protection rights. Affirmed.

State v. Kurtz
228 P.3d 583
No. 05FE0031; A132184
Court of Appeals of Oregon, February 17, 2010

Subjects: not yet available

*Synopsis: Defendant, who was stopped by an Indian tribal police officer outside the boundaries of an Indian reservation, following a pursuit from within the reservation, was convicted in the Circuit Court, Jefferson County, Daniel J. Ahern, J., of attempting to elude a police officer with a vehicle, and resisting arrest by a peace officer. He appealed.

*Holding: The Court of Appeals, Sercombe, P.J., held that:
(1) Indian tribal police officer did not qualify as a “police officer,” and
(2) he did not qualify as a “peace officer.”
Reversed.

Related News Stories: Tribal officers not police under Ore. law. (DemocratHerald) 2/18/10.

In Re Noreen G.
105 Cal.Rptr.3d 521
No. A122651
Court of Appeal, First District, Division 1, California, February 9, 2010

Subjects: not yet available

*Synopsis: Guardians of two children petitioned to terminate the parents' parental rights. The Superior Court, Contra Costa County, Nos. A08-00006, A08-00007, Barry Baskin, J., terminated parental rights but awarded visitation rights to parents. Parents and guardians appealed.

*Holding: The Court of Appeal, Dondero, J., held that:
(1) "physical custody" requirement for guardians to obtain termination of
parental rights was not vague in violation of substantive due process;
(2) trial court acted within its discretion in appointing counsel for children
only on the morning of trial; but
(3) court investigator's report on termination of parental rights was
incomplete; but
(4) incomplete court investigator's report did not violate the parties' due
process rights;
(5) incomplete court investigator's report was harmless beyond reasonable doubt;
(6) termination of parental rights was in children's best interests;
(7) trial court's error in ordering continued visitation for parents did not
require reversal of the order terminating parental rights;
(8) trial court had duty to inquire whether the children were Indian children;
(9) court did not have authority to grant continuing visitation to parents; and
(10) guardians' testimony was not a stipulation or waiver authorizing visitation
for parents.
Affirmed in part, reversed in part, and remanded with directions.

Hamby v. Cherokee Nation Casinos
231 P.3d 700
No. 106, 660
Court of Civil Appeals of Oklahoma, Division No. 4, February 8, 2010

Subjects: not yet available

*Synopsis: Claimant filed workers' compensation suit, alleging that she sustained a work injury occurring as a result of her work on gambling machines in casino of Indian tribe, which was claimant's employer. The Workers' Compensation Court, Mary A. Black, J., ruled that it did not have jurisdiction and dismissed the claim, and claimant appealed.

*Holding: The Court of Civil Appeals, Keith Rapp, J., held that federal statute, pertaining to extension of state workers' compensation laws to buildings, works, and property of the federal government, does not operate to waive an Indian tribe's sovereign immunity. Sustained.

In re Noreen G.
181 Cal.App.4th 1359
No. A122651
Court of Appeal, First District, Division 1, California, February 4, 2010

Subjects: not yet available

*Synopsis: Guardians of two children petitioned to terminate the parents' parental rights. The Superior Court, Contra Costa County, Nos. A08-00006, A08-00007, Barry Baskin, J., terminated parental rights but awarded visitation rights to parents. Parents and guardians appealed.

*Holding: The Court of Appeal, Dondero, J., held that:
(1) “physical custody” requirement for guardians to obtain termination of parental rights was not vague in violation of substantive due process;
(2) trial court acted within its discretion in appointing counsel for children only on the morning of trial; but
(3) court investigator's report on termination of parental rights was incomplete; but
(4) incomplete court investigator's report did not violate the parties' due process rights;
(5) incomplete court investigator's report was harmless beyond reasonable doubt;
(6) termination of parental rights was in children's best interests;
(7) trial court's error in ordering continued visitation for parents did not require reversal of the order terminating parental rights;
(8) trial court had duty to inquire whether the children were Indian children;
(9) court did not have authority to grant continuing visitation to parents; and
(10) guardians' testimony was not a stipulation or waiver authorizing visitation for parents.
Affirmed in part, reversed in part, and remanded with directions.

In the Interest of M.F.
225 P.3d 1177
No. 100,845
Supreme Court of Kansas, February 4, 2010

Subjects: not yet available

*Synopsis: State filed a child in need of care (CINC) petition and sought custody of child. The child, who was discovered to have Native American heritage, was adjudicated a CINC, and State filed subsequent motion to terminate mother's parental rights. Mother's motion to transfer jurisdiction to tribal court was denied. The District Court, Johnson County, Kathleen Sloan, J., entered order terminating parental rights. Mother appealed. The Court of Appeals, 41 Kan.App.2d 927, 206 P.3d 57, reversed and remanded. State and guardian ad litem for child petitioned for review.

*Holding:The Supreme Court, Luckert, J., held that:
(1) social workers who testified at CINC hearing and termination of parental
rights hearing were not qualified expert witnesses as required by the Indian Child
Welfare Act, and
(2) lack of testimony by a qualified expert witness could not be considered
harmless.
Decision of Court of Appeals affirmed; judgment of District Court reversed; case
remanded.

January

Hoffman v. Sandia Resort and Casino
232 P.3d 901
No. 28,444
Court of Appeals of New Mexico, January 26, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: not yet available

*Synopsis: Casino patron filed a complaint against casino alleging breach of contract, prima facie tort, and violation of the Unfair Practices Act after casino refused to pay him a gambling prize. The District Court of Bernalillo County, Linda M. Vanzi, J., granted casino's motion to dismiss. Patron appealed.

*Holding: The Court of Appeals, Castillo, J., held that waiver of tribal immunity contained in gaming compact between Indian tribe and state, did not apply to breach of contract claims of casino patron who alleged casino wrongfully refused to pay him a gambling prize.
Affirmed.

Mashantucket Pequot Gaming Enterprise v. Lin
895 N.Y.S.2d 656
No.
Supreme Court, Kings County, New York, January 20, 2010

Subjects: not yet available

*Synopsis: Indian casino brought action to enforce tribal court money judgment against borrower. Casino moved for summary judgment in lieu of complaint.

*Holding: The Supreme Court, Kings County, Francois A. Rivera, J., held that casino's failure to file affidavit of service within twenty days of delivery of motion required dismissal of action.
Motion denied

State v. Maybee
224 P.3d 1109
No. 35200
Supreme Court of Idaho, January 15, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: not yet available

*Synopsis: State filed complaint against tribal member, who resided on reservation in New York, for sale of unstamped cigarettes in interstate commerce, alleging violations of the Tobacco Master Settlement Agreement Complementary Act and the Master Settlement Agreement (MSA). The Fourth Judicial District Court, Ada County, Kathryn A. Sticklen, J., granted State summary judgment, and issued injunction. Seller appealed.

*Holding: The Supreme Court, Burdick, J., held that:
(1) the Tobacco Master Settlement Agreement Complementary Act prohibits selling, or offering for sale, noncompliant cigarettes, in Idaho;
(2) tribal member's sales of noncompliant cigarettes took place in Idaho for purposes of Complementary Act;
(3) Complementary Act is not preempted by the Interstate Commerce Clause;
(4) neither the Agreement Complementary Act, nor the tobacco permit requirement of Idaho's Prevention of Minors' Access to Tobacco Act (MAA), is preempted by the Indian Commerce Clause; and
(5) attorney general was entitled to recover reasonable attorney fees.
Affirmed.ot yet available

In the Matter of J.J.L., D.J.L., and R.D.L.L.
223 P.3d 921
No. DA 09-0370
Supreme Court of Montana, January 12, 2010

Subjects: not yet available

*Synopsis: The State filed a petition to terminate father's parental rights to his three children. The District Court of the Eighth Judicial District, Cascade County, No. DDJ 08-085-Y, Dirk M. Sandefur, P.J., terminated parental rights. Father appealed.

*Holding: The Supreme Court, W. William Leaphart, J., held that:
(1) counsel's failure to object to hearsay evidence presented during the
adjudication hearing and his failure to file a response to the Department of
Public Health and Human Service's brief in support of the admission of the
evidence constituted ineffective assistance of counsel, and
(2) evidence supported finding that the Indian Child Welfare Act (ICWA) did not
apply to termination of parental rights case.
Reversed and remanded.

Townsend v. Spitzer
891 N.Y.S.2d 740

Supreme Court, Appellate Division, Third Department, New York, January 7, 2010

Subjects: not yet available

*Synopsis: Assembly member and convenience store near Native American reservation petitioned, under Article 78, to compel Governor and others to enforce state tax laws by collecting sales and other taxes on cigarettes and motor fuel sold to non-Native Americans at businesses owned or operated by Native American tribes. The Supreme Court, Albany County, Robert A. Sackett, J., 2008 WL 6623807, dismissed petition. Assembly member appealed.

*Holding: The Supreme Court, Appellate Division, Malone Jr., J., held that refusal to enforce tax laws did not constitute unlawful nullification of assembly member's vote. Affirmed.

 

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