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December

In re S.W.F., Department of Human Services v. W.H.F.
2012 WL 6608135
J0703402; J0703401; A150794.
Court of Appeals of Oregon, December 19, 2012

*Synopsis: In child dependency proceeding, the Circuit Court, Hood River County, Donald W. Hull, J., entered judgment continuing permanency plan of adoption. Father appealed. The Court of Appeals, 240 Or.App. 443, 247 P.3d 329, reversed in part and remanded for trial court to determine whether reasonable efforts had been made to reunify the family and whether permanency placement options had been considered. On remand, the Circuit Court, John A. Wolf, J., made the required determinations, continued the permanency plan of adoption, and ordered filing of a termination petition. Father appealed.

* Holding: The Court of Appeals, Schuman, P.J., held that requirement of Indian Child Welfare Act, that active efforts be taken to prevent breakup of Indian family, did not apply to proceeding.
Affirmed.

In re Zylena R.
284 Neb. 834
Nos. S-11-659.
Supreme Court of Nebraska, December 14, 2012
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: State filed petitions to terminate the parental rights of mother and father to their purportedly Indian children. Indian tribe intervened and sought transfer of proceedings to Tribal Court. The Separate Juvenile Court, Lancaster County, Roger J. Heideman, J., denied transfer. Mother and tribe appealed. The Court of Appeals, 2012 WL 1020275, affirmed. Mother and tribe petitioned for further review.

* Holding:The Supreme Court, Stephan, J., held that:
(1) foster placement and termination of parental rights proceedings involving an Indian child are separate and distinct under the Indian Child Welfare Act (ICWA) and should not be conflated in determining whether a "proceeding" is at an "advanced stage" such as to warrant denial of transfer of proceeding from state court to tribal court; abrogating, In re Interest of Louis S. et al., 17 Neb.App. 867, 774 N.W.2d 416,In re Interest of Leslie S. et al., 17 Neb.App. 828, 770 N.W.2d 678;
(2) termination of parental rights proceedings were not at an "advanced stage," such as would warrant denial of transfer; and
(3) state court is not permitted to consider best interests of an Indian child in deciding whether there is good cause to deny motion to transfer child custody proceeding to tribal court; overruling, In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105.
Reversed and remanded with directions.
Heavican, C.J., dissented, with opinion.

In re S.H.E., D.H.E., J.W.C., D.W.C., J.R., and M.W.C.
824 N.W.2d 420
No. 26299.
Supreme Court of South Dakota, December 12, 2012

*Synopsis: State sought termination of father's parental rights to Indian children. The Circuit Court, Seventh Judicial Circuit, Pennington County, Wally Eklund, J., terminated father's parental rights, and he appealed.

* Holding:The Supreme Court held that:
(1) in a matter of first impression, services provided to incarcerated father, in conjunction with the considerable efforts state made to help children's mothers, constituted “active efforts ”to provide remedial services and rehabilitative programs to a parent designed to prevent the breakup of the Indian family, and
(2) termination of father's parental right was the least restrictive alternative commensurate with children's best interests.
Affirmed.

US ex rel Auginaush v Medure
A12-0256.
State of Minnesota, Court of Appeals, December 3, 2012

*Synopsis: (from the opinion) "Appellants challenge the district court's decision to recognize a tribal court judgment, contending that:
(1) the case should be remanded for the district court to consider the decision of the tribal court of appeals that reversed aspects of the recognized tribal court judgment; and
(2) the district court abused its discretion when it recognized the tribal court judgment... This case has a protracted procedural history dating back to a 1992 contract governing the construction and management of the Shooting Star Casino in Mahnomen."

* Holding: (not yet available)

November

City of Santa Maria v. Adam
211 Cal.App.4th 266
No. H032750.
Court of Appeal, Sixth District, California, November 21, 2012

*Synopsis: Water conservation district, cities, water companies, and landowners stipulated to judgment regarding water rights. The Superior Court, Santa Clara County, Nos. CV770214, 990738, 990739, CV03610, CV784900, CV784921, CV784926, CV785509, CV785511, CV785515, CV785522, CV785936, CV786971, CV787150, CV787151, CV787152,Jack Komar, J., approved the stipulation after bench trial and denied objectors' request to quiet title to their alleged prior water rights. Objectors appealed.

* Holding:The Court of Appeal, Premo, Acting P.J., held that:
(1) equitable “physical solution” did not require a current overdraft;
(2) judgment did not violate due process by delegating decisionmaking power to directly involved participants;
(3) monitoring provisions validly applied to nonstipulating parties;
(4) taking of groundwater during past overdrafts was sufficient to establish prescriptive water right;
(5) period between overdrafts was not a period of “disuse” forfeiting prescriptive rights; but
(6) objectors were entitled to quiet title in their own water rights; but
(7) objectors' overlying rights did not extend to water derived from reclamation project.
Reversed and remanded with directions.

In the Interest of A.V. and J.V.
2012 WL 5872504
No. 12CA0829.
Colorado Court of Appeals, Div. VII., November 21, 2012

*Synopsis: Colorado Department of Human Services filed motion to terminate the parent-child legal relationship between father and his two Indian children who had been adjudicated as dependent and neglected. The District Court, Weld County, Marcelo A. Kopcow, J., granted motion, and father appealed.

* Holding: The Court of Appeals, Román, J., held that:
(1) Department made adequate active efforts to prevent the breakup of Indian family, and
(2) expert testimony was not required to support finding that active efforts were made to prevent breakup of Indian family.
Affirmed.

In re BMH
No. 310667.
Michigan Court of Appeals, Jackson Circuit Court, November 20, 2012

*Synopsis: (from the opinion) "Respondent-father appeals as of right the trial court's order terminating his parental rights to the minor children under MCL 710.51(6)."

* Holding: (not yet available)

Ahtna Tene Nené v. State, Department of Fish & Game
2012 WL 5499632
Nos. S–13968, S–14297.
Supreme Court of Alaska, November 9, 2012

*Synopsis: Resident brought action against state, challenging amended system of distributing permits to subsistence hunters in a caribou and moose hunting area. Tribe intervened on the side of the State, and a private organization intervened on the side of the resident. The Superior Court, Third Judicial District, Kenai, Carl J. Bauman, J., entered summary judgment in favor of resident and enjoined the hunt as unconstitutional, and awarded attorney fees to resident and organization. Tribe appealed.

* Holding:The Supreme Court, Carpeneti, C.J., held that:
(1) appeal from summary judgment was moot;
(2) public interest exception to mootness doctrine did not apply;
(3) issue of attorney fees did not warrant Supreme Court to consider merits of otherwise moot appeal; and
(4) resident was not an attorney and, thus, could not recover attorney fees.
Appeal dismissed, and attorney fees award partially vacated.

In the Interest of A.R.
2012 WL 5457416
No. 11CA1448.
Colorado Court of Appeals, Div. II, November 8, 2012

*Synopsis: IIn dependency and neglect proceeding, the District Court, La Plata County, David L. Dickinson, J., entered order terminating mother's parental rights. Mother appealed, and agency joined in appeal.

* Holding: The Court of Appeals, Lichtenstein, J., held that:
(1) trial court was required to apply Indian Child Welfare Act (ICWA) standard of “active efforts” to agency's efforts to rehabilitate mother;
(2) “active efforts” standard requires more than the “reasonable efforts” standard in non-ICWA cases;
(3) record supported trial court's determination that agency's actions with regard to mother met requisite standard;
(4) no less drastic alternative to termination of mother's parental rights existed; and
(5) trial court erroneously deviated from ICWA placement preferences by refusing to grant agency authority to place child with Indian relatives.
Affirmed in part, reversed in part, and remanded.

New Mexico v. Vandever
2012 WL 6869813
No. 30,842.
Court of Appeals of New Mexico, Aug. 9, 2012.
Certiorari Denied, Nov. 7, 2012, No. 33,802.

*Synopsis: Defendant, who was an enrolled member of the Navajo Nation, was convicted pursuant to guilty plea in the District Court, McKinley County, Grant L. Foutz, D.J., of homicide by vehicle, driving while under the influence of intoxicating liquor or drugs (DWI), and knowingly leaving the scene of an accident involving great bodily harm or death. Defendant appealed.

* Holding: The Court of Appeals, Wechsler, J., held that defendant failed to establish that accident occurred within limits of Indian reservation, on site of dependent Indian community, or on Indian allotment, and thus, court had jurisdiction.
Affirmed.

State v. St. Clair
A12-0910.
Court of Appeals of Minnesota, November 2, 2012

*Synopsis: (from the opinion)"On appeal from her conviction of a driver's-license-restriction violation, appellant argues that because Minn. Stat. § 171.09, subd. 1(g) (2010), is civil/regulatory, Minnesota lacks subject-matter jurisdiction in this case."

* Holding: (not yet available)

October

Waltrip v. Osage Million Dollar Elm Casino
290 P.3d 741
No. 109,030.
Supreme Court of Oklahoma., June 26, 2012.
Rehearing Denied Oct. 29, 2012.

*Synopsis: Injured employee of a tribal enterprise brought a claim against his employer's workers' compensation insurer under the estoppel act. The Workers' Compensation Court, Owen T. Evans, J., dismissed the claim for lack of jurisdiction. Employee appealed. The Court of Civil Appeals affirmed. Employee petitioned for writ of certiorari, which was granted.

* Holding: The Supreme Court, Colbert, V.C.J., held that estoppel act applied to workers' compensation insurer to preclude insurer from denying claim.
Reversed and remanded with instructions.

In re Warsinski
No. 309307
Court of Appeals of Michigan, October 25, 2012

*Synopsis: (from the opinion) "Respondent appeals as of right from an order terminating her parental rights to her minor child pursuant to MCL 712A.19b(3)(g), (i), (j), and (m). Although we find that the trial court's decision to terminate respondent's parental rights was supported by clear and convincing evidence, the trial court failed to specifically find that termination of respondent's parental rights was in the child's best interests."

* Holding: (not yet available)

People v. Collins
2012 WL 5233629
Docket Nos. 300644, 300645.
Court of Appeals of Michigan, October 23, 2012

*Synopsis: Two non-Indian defendants were charged with controlled substance offenses which allegedly occurred inside an Indian casino. The Circuit Court, Menominee County, Mary B. Barglind, J., dismissed. People appealed, and appeals were consolidated.

* Holding: The Court of Appeals, Murphy, C.J., held that circuit court had jurisdiction over the charges.
Reversed and remanded.

Twenty-Nine Palms Enterprises Corporation v. Paul Bardos
2012 WL 5458870
E051769.
Court of Appeal, Fourth District, California, October 11, 2012

*Synopsis: Tribal project owner brought action against sole proprietor contractor and its owner, seeking to recover money on grounds that contractor was unlicensed and alleging unfair competition. The Superior Court, San Bernardino County, No. CIVRS908132,Martin A. Hildreth, Retired Judge sitting by assignment, entered summary judgment for tribal project owner, and owner appealed.

* Holding:The Court of Appeal, Miller, J., held that:
(1) contractor could not assert defense that licensing statute was not enforceable in contract made with tribal entity for work done on tribal land;
(2) court abused its discretion in making blanket ruling sustaining all objections to contractor's declaration;
(3) fact that owner was the responsible managing officer of a corporation with a contractors license did not allow owner to perform work under sole proprietorship's name without an individual license;
(4) alter ego and piercing the corporate veil doctrines did not apply to allow sole proprietorship to borrow corporation's license;
(5) sole proprietorship did not substantially comply with state contractor's licensing statutes; and
(6) conflict in evidence regarding estoppel was created solely by defendants and did not show a genuine issue of material fact.
Affirmed.

Cheyenne River Sioux Tribe v. Davis
2012 WL 4830243
No. 26448.
Supreme Court of South Dakota, October 10, 2012

*Synopsis: Indian tribe filed a petition for writ of mandamus or prohibition seeking to compel the Circuit Court, Seventh Judicial Circuit, Jeff F. Davis, J., to hold a new temporary custody hearing for Indian children, whom the Court placed in the custody of the Department of Social Services (DSS) for 60 days.

* Holding: The Supreme Court, Gilbertson, C.J., held that:
(1) full panoply of rights afforded to Indian tribes under the Indian Child Welfare Act (ICWA) did not apply to temporary custody proceeding, and
(2) police report and affidavit of DSS specialist provided sufficient evidence of need for DSS to take temporary custody of children.
Application dismissed.

Sue/perior Concrete & Paving, Inc. v. Seneca Gaming Corporation
2012 WL 4748213
CA 12–00491.
Supreme Court, Appellate Division, Fourth Department, New York, October 5, 2012

*Synopsis: Contractor brought action against corporation formed by Indian tribe to carry out its gambling operations, corporation's wholly-owned subsidiary, past and present officers and/or directors of corporation and subsidiary, and member of tribal council who was officer of tribal-related entity, asserting claims for tortious interference with contract, tortious interference with prospective business advantage, concerted action, and prima facie tort. The Supreme Court, Erie County, John A. Michalek, J., granted motion to dismiss on ground of sovereign immunity as to corporation and subsidiary, but denied motion as to individual defendants. Individual defendants appealed.

* Holding: The Supreme Court, Appellate Division, held that individual defendants were entitled to sovereign immunity.
Reversed.

Related News Stories: Senecas win appeal in Sue-Perior case (Niagara Gazette) 10/16/12

September

Schaghticoke Indian Tribe v. Rost
2012 WL 3930614
No. 33374.
Appellate Court of Connecticut, September 18, 2012

*Synopsis: Indian tribe brought summary process eviction action to remove defendant from reservation land. After a bench trial, the Superior Court, Judicial District of Litchfield, Housing Session, Klatt, J., entered judgment in favor of tribe. Defendant appealed.

* Holding: The Appellate Court, Robinson, J., held that:
(1) trial court had subject matter jurisdiction to adjudicate action, and
(2) trial court did not improperly resolve any issues of tribal leadership.
Affirmed.

In re General adjudication of all rights to use the Gila River system and source
289 P.3d 936
No. WC–11–0001–IR.
Supreme Court of Arizona, En Banc, September 12, 2012

*Synopsis: Water rights claimants brought actions for general adjudication of all water rights in watersheds. Actions were consolidated. The Superior Court, Apache and Maricopa Counties, Nos. W–1, W–2, W–3, W–4, W1–104, 6417 (LCR), and 6417–100, Eddward P. Ballinger, Jr., J., adopted special master's report finding that the reserved water rights doctrine was inapplicable to state trust lands. State sought review which was granted.

* Holding: The Supreme Court, Pelander, J., held that state trust lands did not include federal reserved water rights.
Affirmed.

August

In the matter of the Estate of Hamilton
2012 WL 4693459
No. 108894.
Court of Civil Appeals of Oklahoma, Division No. 3, August 31, 2012

*Synopsis: Daughter of deceased Osage Indian filed amended petition for probate of a will and of a family settlement agreement that divided the Indian's estate equally among his four surviving children, which agreement had been approved by the Bureau of Indian Affairs and the Department of the Interior in accordance with federal law requiring such pre-approval. The District Court approved the will and the agreement, and ordered distribution of the estate. Nearly three years later, two children of a child who had predeceased Indian filed petition to vacate the order on the ground that they were not provided notice of the prior proceedings. The District Court, Osage County, B. David Gambill, J., vacated its earlier order and redistributed the estate.
Daughter appealed.

* Holding: The Court of Civil Appeals, Bay Mitchell, J., held that District Court lacked authority to vacate its order and redistribute estate.
Reversed and remanded.

Automotive United Trades Organization v. Washington
Briefs from Turtle Talk
2012 WL 3756308
No. 85661–3.
Supreme Court of Washington, En Banc, August 30, 2012

*Synopsis: Trade association of Washington gasoline and automotive service retailers brought action against the State alleging that fuel tax compacts entered into with various Indian tribes were unconstitutional. The Superior Court, Grays Harbor County, Gordon L. Godfrey, J., dismissed. Trade association appealed.

* Holding:The Supreme Court, Stephens, J., held that while Indian tribes were necessary parties, they were not indispensable so as to warrant dismissal.
Reversed.

Navajo Nation v. Arizona Department of Economic Security
2012 WL 3694343
CA-JV 11-0123.
Court of Appeals, Division 1, Arizona, August 28, 2012

*Synopsis: Department of Economic Security (DES) filed a motion to sever mother's and the John Doe father's parental rights, and alleged that mother was an enrolled member of Indian tribe. Tribe successfully moved to intervene. The Superior Court, Maricopa County, No. JD19410, Christopher A. Coury, J., found good cause to deviate from the placement preferences set forth in the Indian Child Welfare Act (ICWA) and allowed child to remain with his non-relative, non-Indian adoptive placement. Tribe appealed.

* Holding: The Court of Appeals, Kessler, J., held that:
(1) in determining the best interest of an Indian child, courts should start with the presumption that ICWA placement preferences are in the child's best interest and then balance that presumption against other relevant factors to determine whether placement outside ICWA preferences is in the child's best interest;
(2) record contained evidence that child had bonded with his current placement and that removing him from his home after 15 months of bonding would have caused significant harm; and
(3) juvenile court did not abuse its discretion in considering adoption certification as factor in finding good cause to deviate from ICWA preferences.
Affirmed.

Related News Story: Despite ICWA, court rules Navajo child will remain with non-Indian guardians (Indian Country Today) 9/05/12

Related News Stories: Court OKs placement of Navajo boy with non-Indians (KTUL.com) 8/29/12

In re Michael A.
2012 WL 3651055
C069365
Court of Appeal, Third District, California, August 27, 2012

*Synopsis: Paternal grandmother and de facto parent to two grandchildren appealed order of the Superior Court, Sacramento County, Nos. JD220950 and JD220951,Carol S. Chrisman, Juvenile Court Referee, removing the minors from her custody.

* Holding: The Court of Appeal, Butz, J., held that grandmother lacked standing to allege failure to comply with inquiry and notice provisions of the Indian Child Welfare Act of 1978.
Affirmed.

Adoptive Couple v. Baby Girl
2012 WL 3042287
No. 27148.
Supreme Court of South Carolina, July 26, 2012
Rehearing Denied Aug. 22, 2012

*Synopsis: Prospective adoptive parents filed petition seeking to adopt child. Adjudicated father, a member of an Indian tribe, opposed the adoption. Indian tribe intervened. The Family Court, Charleston County, Deborah Malphrus, Family Court Judge, denied petition and required prospective adoptive parents to transfer child to father. Prospective adoptive parents appealed.

* Holding: The Supreme Court, Toal, C.J., held that:
(1) unwed, adjudicated father of child was a "parent" under the Indian Child Welfare Act (ICWA);
(2) father did not voluntarily consent to the relinquishment of his parental rights under the ICWA;
(3) emotional bonding that occurred between prospective adoptive parents and child during contested adoption proceedings did not establish that father's prospective custody of child was likely to result in serious emotional or physical damage to child; and
(4) child's best interests would be served by transferring custody from prospective adoptive parents to adjudicated father.
Affirmed.

Related News Stories: South Carolina Supreme Court Rules to Keep Baby Veronica With Biological Father Read (Indian Country Today) 8/07/12. SC high court agrees with return of Native American girl (GoUpstate.com) 7/26/12

In re Anthony T.
146 Cal.Rptr.3d 124
No. D061309.
Court of Appeal, Fourth District, Division 1, California, August 22, 2012

*Synopsis: County health and human services agency filed dependency petition. Father's tribe intervened. The Superior Court, San Diego County, No. NJ14540,Blaine K. Bowman, J., placed child in foster care with an Indian family. Mother and child appealed.

* Holding: The Court of Appeal, Huffman, Acting P.J., held that foster home placement was not "within reasonable proximity to" child's home under Indian Child Welfare Act (ICWA).
Reversed.

In re A.W.
2012 WL 3594662
J060417; 10136J; J010086; 10137J; A149947.
Court of Appeals of Oregon, August 22, 2012

*Synopsis: Mother and father appealed from a combined dispositional and permanency judgment of the Circuit Court, Linn County, James C. Egan, J., changing the permanency plan of two children, one being an "Indian child" under the Indian Child Welfare Act (ICWA), from reunification to adoption.

* Holding: The Court of Appeals, Nakamoto, J., held that:
(1) evidence established that the Department of Human Services (DHS) made active efforts to reunify Indian child with mother;
(2) evidence established that DHS made reasonable efforts to reunify second child with mother; but
(3) evidence failed to establish that DHS made active efforts to reunify Indian child with father.
Affirmed in part, reversed in part, and remanded.

In re E.G.L.
2012 WL 3555308
No. 05–11–00854–CV.
Court of Appeals of Texas, Dallas, August 20, 2012

*Synopsis: Presumed father of mother's second child filed a petition to adjudicate his parentage as to mother's second child, to adjudicate parentage of mother's oldest child, and to be named as the sole managing conservator of both of children. The 296th Judicial District Court, Collin County, appointed mother and father of mother's second child as joint managing conservators of both children, with father of second child having the right to designate the primary residence of the children, and father of mother's oldest child as possessory conservator of oldest child. Father of oldest child appealed.

* Holding:The Court of Appeals, Lang-Miers, J., held that:
(1) the Indian Child Welfare Act (ICWA) did not apply to child custody proceeding between father of mother's oldest child, father of mother's second child, and mother;
(2) father of mother's second child had standing to seek conservatorship over mother's oldest child;
(3) order appointing father of mother's oldest child possessory conservator of child, rather than managing conservator, was not an abuse of discretion; and
(4) order naming father of mother's second child as joint managing conservator, with mother, of second child and mother's oldest child was not an abuse of discretion.
Affirmed.

In re H.R.
2012 WL 3568325
No. A134137.
Court of Appeal, First District, Division 3, California, August 20, 2012

*Synopsis: Dependency proceeding was commenced regarding Indian child. The Superior Court, Del Norte County, No. JVSQ 10-6071, Robert W. Weir, J., selected traditional state law adoption as the permanent plan and terminated parental rights, and Indian tribe appealed.

* Holding:The Court of Appeal, Pollak, J., held that:
(1) tribal customary adoption order did not necessarily preclude trial court from selecting a different permanent plan, and
(2) tribal customary adoption was preferred as child's permanent plan.
Reversed and remanded.

In re W.B., Jr.
2012 WL 3155945
No. S181638.
Supreme Court of California, Aug. 6, 2012.

*Synopsis: After petition alleging that juvenile had committed a burglary was found to be true, at a disposition hearing the Superior Court, Riverside County, No. RIJ114127,Christian F. Thierbach, J., ordered juvenile placed in a suitable foster home, group home, relative home, county or private facility, and directed juvenile to comply with terms of probation. Juvenile appealed, alleging that the juvenile court had failed to comply with notice requirements of the Indian Child Welfare Act (ICWA), and the Court of Appeal affirmed. The Supreme Court granted review, superseding the opinion of the Court of Appeal.

* Holding: The Supreme Court, Corrigan, J., held that ICWA notice was not required.
Affirmed.


July

In re KMO
2012 WL 2989143
No. S–11–0224.
Supreme Court of Wyoming, July 23, 2012

*Synopsis: Department of Family Services filed petition to terminate parental rights of mother and two biological fathers of nine children. The District Court, Natrona County, John C. Brackley, J., terminated mother's parental rights, and mother appealed.

* Holding:The Supreme Court, Hill, J., held that:
(1) provision of Child Protective Act requiring that petition to terminate parental rights be filed within 60 days of judicial determination that reasonable efforts at reunification were not required did not apply to determination whether children had been in foster care under responsibility of State for 15 of previous 22 months;
(2) placement of mother's children with relatives did not operate to toll minimum period of 15 months out of previous 22 months that children were in foster care under responsibility of State, for purposes of statutory ground for termination of parental rights;
(3) mother's nine children were in foster care under responsibility of State for 15 of previous 22 months;
(4) evidence supported determination that mother was unfit to have custody and control of children at time of trial;
(5) verdict form that required jury to make findings of statutory grounds for termination of parental rights with respect to nine children collectively as group, rather than for each child individually, did not violate due process;
(6) statutory standard for proving statutory grounds for termination of parental rights by clear and convincing evidence, as opposed to requiring proof beyond reasonable doubt, did not violate due process;
(7) clear and convincing standard did not violate equal protection; and
(8) mother's vague assertions of error and challenges to virtually every adverse ruling did not permit meaningful appellate review for cumulative error.
Affirmed.

In re Christian P.
2012 WL 2990034
No. B236528.
Court of Appeal, Second District, Division 3, California, July 23, 2012

*Synopsis: County department of children and family services (DCFS) filed dependency petition. The Superior Court, Los Angeles County, No. CK87644, Steven R. Klaif, Juvenile Court Referee, sustained jurisdictional allegations. Mother appealed.

* Holding:The Court of Appeal, Croskey, J., held that:
(1) attorney for DCFS was not required to petition for access to files in other children's dependency case;
(2) hearsay allegations against mother were adequately corroborated;
(3) evidence supported finding that mother's use of methamphetamines rendered her incapable of caring for children; but
(4) DCFS failed to give adequate ICWA notice.
Reversed and remanded with directions.

Miccosukee Tribe of Indians of Florida v. Bermudez
92 So.3d 232
Nos. 3D12–842, 3D12–871.
District Court of Appeal of Florida, Third District, July 19, 2012

*Synopsis: Federally recognized Indian tribe petitioned for certiorari relief from order of Circuit Court, Miami–Dade County, Ronald C. Dresnick, J., denying tribe's motion for protective order and to quash subpoena to tribe's general counsel

* Holding:The District Court of Appeal, Shepherd, J., held that conduct of tribe and its general counsel in providing to plaintiffs' counsel in wrongful death litigation tribal checks paid to defense attorney was a waiver of the tribe's sovereign immunity.
Denied.

In re Avery G.
2012 WL 2897329
No. 2011AP2783.
Court of Appeals of Wisconsin, July 17, 2012

*Synopsis: (from the opinion) "Robert H. appeals from the order terminating his parental rights to his son, Avery G., and the order denying his motion for postdisposition relief. Robert contends he is entitled to a new trial on three grounds: (1) the requirement of the Wisconsin Indian Child Welfare Act (WICWA) with respect to testimony by qualified expert witnesses was not satisfied during the fact-finding hearing; (2) he was denied effective assistance of counsel; and (3) we should exercise our discretionary power of reversal because the real controversy has not been fully tried and it is probable that justice has miscarried. We conclude that the requisite testimony of an expert witness qualified under WICWA was presented at the disposition hearing and the error in not presenting it at the fact-finding hearing was harmless based on the specific circumstances in this case and given the arguments made by Robert. We also conclude that Robert did not receive ineffective assistance of counsel and there are not grounds for the exercise of our discretionary power of reversal. Accordingly, we affirm the order terminating Robert's parental rights to Avery and the order denying his postdisposition motion for a new trial."

* Holding: Not yet available

Miccosukee Tribe of Indians of Florida v. United States
877 F.Supp.2d 1331
Case No. 11–CV–23107.
United States District Court, S.D. Florida, July 12, 2012

*Synopsis: Indian tribe petitioned to quash IRS summonses to third-party recordkeepers for financial records of accounts belonging to tribe for certain tax years.

* Holding: The District Court, Alan S. Gold, J., held that:
(1) tribal sovereign immunity did not bar IRS summons enforcement proceedings, and
(2) IRS asserted a legitimate investigative purpose for issuing IRS summonses.
Petition denied.

In re C.Y.
208 Cal.App.4th 34
C070098
Court of Appeal, Third District, California, July 11, 2012

*Synopsis: County Department of Health and Human Services (DHHS) filed child dependency petition. The Superior Court, Sacramento County, No. JD229817,Paul L. Seave, J., terminated mother's parental rights, and mother appealed.

* Holding: The Court of Appeal, Blease, Acting P.J., held that:
(1) DHHS was not required to investigate mother's adoption records and determine to what Indian tribe she was affiliated, and
(2) DHHS was not required to contact child's deceased father's relatives to inquire into any potential Indian heritage.
Affirmed.

Minnesota v. Fellegy
2012 WL 2849606
No. A11–1097.
Court of Appeals of Minnesota., July 11, 2012

*Synopsis: Defendant was convicted in the District Court, Aitkin County, for taking fish out of season, and he appealed.

* Holding: The Court of Appeals, Ross, J., held that:
(1) defendant's motion to dismiss was required to be deemed waived;
(2) defendant was not similarly situated, as element of equal protection based claim of selective prosecution, to Native Americans having treaty rights to fish on same lake; and
(3) defendant's allegation regarding Native Americans who had not been prosecuted for fishing out of season on different lake was insufficient to support equal protection claim.
Affirmed.

Kroner v. Oneida Seven Generations Corp
Briefs from Turtle Talk
2012 WL 2864228
No. 2010AP2533
Supreme Court of Wisconsin., July 11, 2012

*Synopsis: Former employee, a non-tribal member, brought action against former employer, a tribally owned real estate and holding company, claiming wrongful discharge and breach of contract. The Circuit Court, Brown County, Donald R. Zuidmulder, J., granted employer's motion to transfer action to tribal court. Employee appealed. The Court of Appeals, 2011 WL 2135681, affirmed. Employee petitioned for review.

* Holding: The Supreme Court held that rule authorizing circuit courts to transfer civil actions to tribal courts when concurrent jurisdiction exists did not apply retrospectively to case filed before rule took effect. Reversed and remanded. N. Patrick Crooks, J., issued an opinion in which Shirley S. Abrahamson, C.J., and Ann Walsh Bradley, J., joined. David T. Prosser, J., issued a concurring opinion. Patience Drake Roggensack, J., issued a concurring opinion in which Annette Kingsland Ziegler and Michael J. Gableman, JJ., joined.

June

People ex rel. P.S.E.
2012 WL 2354684
Supreme Court of South Dakota., June 20, 2012

*Synopsis: Father of Indian child appealed from order of the Circuit Court of the Seventh Judicial Circuit, Pennington County, South Dakota; Jeff W. Davis, J., terminating father's parental rights as to child.

* Holding: The Supreme Court, Severson, J., held that:
(1) Indian Child Welfare Act (ICWA) does not require an explicit factual finding in termination of parental rights proceeding that the efforts to prevent breakup of Indian family were not successful;
(2) Department of Social Services (DSS) made active efforts to prevent breakup of Indian family;
(3) requirement under Indian Child Welfare Act (ICWA) of "active efforts" to prevent breakup of Indian family prior to termination of parental rights to an Indian child imposes a higher standard than "reasonable efforts" to return child to the parent, as required under state law in abuse and neglect proceedings in which ICWA does not apply;
(4) DSS made reasonable efforts toward placement of child with father;
(5) DSS's efforts to prevent breakup of Indian family were unsuccessful; and
(6) trial court was not clearly erroneous in finding that termination of father's parental rights was the least restrictive alternative commensurate with child's best interests.
Affirmed.

Hinkle v. Abeita
2012 WL 3642837
No. 30,577.
Court of Appeals of New Mexico, June 19, 2012

*Synopsis: (from the opinion) "In this appeal, we are asked to reconsider whether our state courts have subject matter jurisdiction over tort claims filed against Indian defendants for conduct occurring on state highways within Indian country. Although binding precedent holds that our state courts do not have jurisdiction over such matters, see Hartley v. Baca, 97 N.M. 441, 442–43, 640 P.2d 941, 942–43 (Ct.App.1981), we revisit the issue to determine whether evolving federal Indian Law jurisprudence and recent precedent from our own Supreme Court now require a different result. We hold that those developments do not alter our analysis in Hartley, and we hereby affirm the district court's decision to dismiss for lack of subject matter jurisdiction."

* Holding: Not yet available

HCI Distribution v. N.Y. State Police
Briefs from Turtle Talk
2012 WL 2368900
No. 138276.
Supreme Court, St. Lawrence County, New York, June 18, 2012

*Synopsis: (from the opinion) "On January 23, 2012, HCI purchased 26,160 cartons of Signal Brand cigarettes and cigars, and 72 bags of loose tobacco from the manufacturer, Ohserase, on the St. Regis Mohawk Reservation in Northern New York. The product was consigned to D and T under a bill of lading which accurately described the product being transported, its source and its intended destination—HCI's facility on the Winnebago Reservation located in the State of Nebraska. After leaving the St. Regis Reservation that day, Cagle was stopped at a routine Border Patrol checkpoint on State Route 37 in the Town of Waddington, St. Lawrence County."

* Holding: Not yet available.

 

Roy S. v. Alaska, Department of Health & Social Services, Office of Children's Services
2012 WL 2203036
No. S–14377.
Supreme Court of Alaska., June 15, 2012

*Synopsis: After the Office of Children's Services (OCS) took custody of minor child, the Superior Court, Third Judicial District, Anchorage, Peter A. Michalski, J., terminated father's parental rights. Father appealed.

* Holding: The Supreme Court held that:
(1) OCS made active efforts to prevent breakup of Indian family;
(2) Indian Child Welfare Act (ICWA) did not require consideration of placement options when determining whether to terminate;
(3) preponderance of the evidence supported termination of father's parental rights;
(4) good cause existed to deviate from ICWA placement preferences; and
(5) trial court properly allowed adoptive parents to control post-termination visitation.
Affirmed.

Hill v. Seneca Nation of Indians
2012 WL 2163941
Supreme Court, Appellate Division, Fourth Department, New York, June 15, 2012

*Synopsis: (from the opinion) "Plaintiff commenced this action to recover damages for injuries he sustained while working on a construction project on property owned by defendant Seneca Nation of Indians (Seneca Nation). The injury occurred when a trench in which plaintiff was working collapsed on him. Plaintiff was employed by a contractor hired by the general contractor, defendant-respondent (defendant), a New York corporation. [...] Plaintiff contends that defendant, a non-Indian entity, "cannot avoid [its] obligations under New York law by hiding behind tribal sovereignty," while defendant contends that tribal law rather than New York law applies because the accident occurred on the Seneca Nation's sovereign land, and tribal law does not provide for vicarious liability for property owners and general contractors"

* Holding: Not yet available.

 

In re Dependency of J.A.F.
2012 WL 2086965
Nos. 67022–1–I, 67023–9–I, 67024–7–I, 67025–5–I, 67026–3–I, 67027–1–I.
Court of Appeals of Washington, Division 1, June 11, 2012

*Synopsis: State petitioned to terminate parental rights of father and mother as to each of their three children after both parties failed to comply with reunification plan. The Superior Court, Island County, Alan R. Hancock, J., granted petition. Father and mother appealed.

* Holding: The Court of Appeals, Leach, C.J., held that:
(1) trial court violated right to open and accessible proceedings by closing courtroom to public;
(2) neither father nor mother demonstrated actual prejudice as result of violation of right to public trial;
(3) State satisfied notice requirements of Indian Child Welfare Act (ICWA) by notifying Bureau of Indian Affairs (BIA) of parental rights termination proceeding;
(4) that child had not yet been placed in a prospective adoptive home did not preclude finding that mother's continued legal relationship with child would have prevented child's integration into a stable and permanent home; and
(5) evidence was sufficient to establish that termination of father's parental rights was in best interests of children.
Affirmed.

May

American Property Management Corporation v. Superior Court
2012 WL 1871853
No. D060868
Court of Appeal, Fourth District, Division 1, California, May 24, 2012

*Synopsis: Limited liability company (LLC) hotel owner brought action against management entities, seeking recover funds transferred from hotel's operating account and alleging breach of contract and breach of fiduciary duty. Management entity filed cross-complaint, seeking liquidated damages from LLC hotel owner's termination of hotel management agreement. The Superior Court, San Diego County, No. GIC845130,John S. Meyer, J., entered judgment on jury verdict for management entity, and LLC hotel owner appealed. The Court of Appeal, 2008 WL 4601120, reversed and remanded. LLC hotel owner thereafter filed motion to dismiss cross-complaint on the ground of sovereign immunity, contending that it was entitled to Indian tribe's sovereign immunity as a subordinate economic entity of the tribe. The Superior Court, Randa Trapp, J., granted the motion, and management entity filed petition for writ of mandamus.

* Holding: The Court of Appeal, Irion, J., held that hotel owner was not an arm of Indian tribe and thus was not entitled to sovereign immunity.
Writ issued.

In re J.M.
206 Cal.App.4th 375
No. B235963.
Court of Appeal, Second District, Division 8., May 23, 2012

*Synopsis: In a dependency proceeding, the Superior Court, Los Angeles County, No. CK56447,Jacqueline Lewis, Juvenile Court Referee, terminated mother's parental rights. Mother appealed.

* Holding: The Court of Appeal, Grimes, J., held that:
(1) Indian Child Welfare Act (ICWA) notice need not include information about great-great-grandparents;
(2) any error in omitting information about great-great-grandparents from ICWA notice was harmless; and
(3) omission of information about one of the two siblings from ICWA notice was harmless.

Affirmed.

In re Adoption of Baby Boy J.
944 N.Y.S.2d 871
Surrogate's Court, Erie County, New York, May 23, 2012

*Synopsis: Prospective adoptive parents filed petition for adoption, approval of post-adoption contact agreement (PACA), and order finding good cause to deviate from placement preferences set forth in Indian Child Welfare Act (ICWA).

* Holding: The Surrogates Court, Erie County, Barbara Howe, J., held that:
(1) as matter of first impression, tribe was not entitled to notice of adoption proceeding, and
(2) good cause existed to deviate from preferences set forth in ICWA.

Order accordingly.

 

In re Gabriel G.
2012 WL 2106366
No. B237553.
Court of Appeal, Second District, Division 2, California., May 22, 2012

*Synopsis: In permanency planning hearing in dependency proceeding, the Superior Court, Los Angeles County, No. CK81156, Donna Levin, Juvenile Court Referee, terminated parental rights. Mother and father appealed.

* Holding:The Court of Appeal, Doi Todd, Acting P.J., held that unsigned “Notification of Indian Status” form required Indian Child Welfare Act (ICWA) notice.

Reversed and remanded with directions.

In re I.F.A.
278 P.3d 1067
No. 109,844.
Court of Civil Appeals of Oklahoma, Division No. 3., May 18, 2012

*Synopsis: The State filed a petition to terminate mother's parental rights to two children. The District Court, Oklahoma County, Gregory J. Ryan, J., terminated parental rights. Mother appealed.

* Holding: The Court of Civil Appeals, Robert D. Bell, P.J., held that remand was required to ensure that the trial court complied with the due process requirements for an Indian Child Welfare Act (ICWA) termination case.
Reversed and remanded.

Josh L. v. Alaska, Department of Health & Social Services, Office of Children's Services
276 P.3d 457
No. S–14160.
Supreme Court of Alaska, May 18, 2012

*Synopsis: The Office of Children's Services (OCS) filed a motion to terminate parental rights to Indian child. The Superior Court, Fourth Judicial District, Bethel, Marvin Hamilton, J., terminated parental rights. Father appealed.

* Holding: The Supreme Court held that:
(1) evidence supported finding that OCS made active efforts to reunite Indian child with father, and
(2) the OCS' failure to investigate placing Indian child with father's family members did not constitute evidence that the OCS had failed to make active efforts to reunify child with father.

Affirmed.

Paula E. v. Alaska, Department of Health & Social Services, Office of Children's Services
2012 WL 1649165
No. S–14247
Supreme Court of Alaska, May 8, 2012

*Synopsis: Native American children's maternal grandmother sought judicial review of decision by Office of Children's Services (OCS) to place children with non-Native American family and denial of grandmother's request for placement of children with her. The Superior Court, Third Judicial District, Glennallen County, Daniel Schally, Judge Pro Tem, affirmed orders of OCS, and grandmother appealed.

* Holding:The Supreme Court held that:
(1) documents and exhibits that were not admitted into evidence at placement and permanency hearings were not reviewable on appeal;
(2) standing master's reliance on evidence admitted at previous hearing to consider placement of children with relatives in Montana in hearing on grandmother's request under Indian Child Welfare Act (ICWA) for placement of children with her did not violate grandmother's right to due process;
(3) grandmother had notice of non-emergency transfer of children from her care;
(4) OCS' failure to provide grandmother with notice of intent not to return children to her upon her return from Montana did not violate due process;
(5) OCS was not required to provide grandmother with notice of denial of visitation and hearing;
(6) grandmother had due process right to notice of permanency and placement hearings, regardless of whether she renewed foster care license;
(7) OCS' failure to provide grandmother with statutory notice of two permanency and placement hearings when grandmother returned from Montana did not deprive grandmother of due process; and
(8) good cause existed for standing master to deviate from placement preferences under Indian Child Welfare Act (ICWA).

Affirmed.

In re T.S.W.
Briefs from Turtle Talk
2012 WL 1563903
No. 104,424
Supreme Court of Kansas, May 4, 2012

*Synopsis: State adoption agency filed petition to terminate Native American father's parental rights to child born to non-Native American mother. Tribe petitioned to intervene and filed answer and counterclaim. Agency filed petition to deviate from Indian Child Welfare Act's (ICWA) placement preference. The Sedgwick District Court, Richard T. Ballinger, J., terminated father's parental rights, and then, in subsequent order, granted agency's petition to deviate from ICWA's placement preference requirements. Tribe appealed from order granting deviation.

* Holding: The Supreme Court, Moritz, J., held that:
(1) tribe's petition for placement preference under ICWA was not de facto adoption proceeding, for purposes of tribe's right to appeal from order granting deviation from preference;
(2) The Supreme Court lacked statutory authority over appeal from nonfinal order granting agency's petition for deviation of placement preference under ICWA;
(3) order was collaterally appealable;
(4) ICWA's parental placement preference for child applied to adoption of child born to non-Indian mother who stated preference for child's placement with non-Native American family;
(5) agency was prohibited from grafting requirement onto ICWA's parental placement preference tribe members interested in adoption show proof of ability to pay agency's $27,500 fee and mother's preference for placement of child; and
(6) mother's wish that child not be placed with any member of father's family, together with her wish that child be placed with non-Native American family, by itself, was not good cause to deviate from ICWA's placement preference statute.
Reversed.

In re Morris
2012 WL 1573518
Nos. 142759, 143673
Supreme Court of Michigan, May 4, 2012

*Synopsis: Department of Human Services (DHS) filed petition seeking termination of mother's and father's parental rights. The Wayne Circuit Court, Family Division, Mark T. Slavens, J., 2011 WL 567212, granted petition. Parents appealed. The Court of Appeals ultimately conditionally affirmed and remanded. Father filed application for leave to appeal. In second matter, DHS filed petition to terminate mother's parental rights. The Oakland Circuit Court, Family Division, 2011 WL 3518203, granted petition. Mother appealed. The Court of Appeals affirmed. Mother filed application for leave to appeal.

* Holding: The Supreme Court, Cavanagh, J. held that:
(1) sufficient indicia of children's Indian heritage existed so as to trigger notice requirement of the Indian Child Welfare Act (ICWA), and
(2) appropriate remedy for violations of the notice provision of ICWA was conditional reversal of orders terminating parental rights and remand for resolution of the ICWA-notice issue; overruling, In re IEM, 233 Mich.App. 438, 449, 592 N.W.2d 751,In re TM, 245 Mich.App. 181, 628 N.W.2d 570,In re N.E.G.P., 245 Mich.App. 126, 626 N.W.2d 921,In re Amyx/Amyx–Holmes, 2011 WL 2937149,In re Toia, 2009 WL 2477780.
Reversed and remanded.

April

John v. Klewin Building Co.
2012 WL 1450174
Supreme Court, Appellate Division, Fourth Department, New York, April 27, 2012

*Synopsis: Worker on construction project for Indian casino commenced Labor Law and common-law negligence action against contractor, seeking damages for injuries he sustained when he fell from roof. The Supreme Court, Erie County, Joseph R. Glownia, J., denied contractor's motion for summary judgment, and worker's motion for partial summary judgment on scaffold law claim. Parties appealed.

* Holding: The Supreme Court, Appellate Division, held that:
(1) contractor did not owe worker statutory or common-law duty of care;
(2) fact questions precluded summary judgment on claims based on alleged violations of Industrial Code provisions concerning slipping hazards and work on roofs; and
(3) fact questions precluded summary judgment on scaffold law claims.
Affirmed as modified.

Apache Tribe of Oklahoma v. Graves
2012 WL 2970622
No. 109,837.
Court of Civil Appeals of Oklahoma, Division No. 2, April 25, 2012

*Synopsis: Indian tribe brought action against attorney and former member of the Gaming Board of Directors alleging breach of fiduciary duty, conversion, civil conspiracy, and professional malpractice. Attorney counterclaimed for recoupment and indemnity. The District Court, Cleveland County, Tom A. Lucas, J., granted attorney summary judgment. Tribe appealed.

* Holding: The Court of Civil Appeals, Jane P. Wiseman, J., held that genuine issues of material fact existed as to whether tribe ratified check made out to casino employee, precluding summary judgment on tribe's claims.
Reversed and remanded.

 

AES Corporation v. Steadfast Insurance
725 S.E.2d 532
Record No. 100764.
Supreme Court of Virginia, Apri 20, 2012

*Synopsis: Commercial general liability (CGL) insurer for electric company brought action for declaratory judgment that it owed no duty to defend insured in Alaskan village's suit to recover damages based on insured's contribution to global warming through emission of carbon dioxide and other greenhouse gases. The Circuit Court, Arlington County, Benjamin N.A. Kendrick, J., 2010 WL 1484811, entered judgment in insurer's favor. Insured appealed.

* Holding: The Supreme Court, S. Bernard Goodwyn, J., held that damage to Alaskan barrier island making native village uninhabitable allegedly as result of global warming was not caused by “accident” and, thus, was not caused by “occurrence” within meaning of CGL policy.
Affirmed.

 

In re Enrique P.
813 N.W.2d 513
No. A–11–662.
Court of Appeals of Nebraska., April 17, 2012

*Synopsis: Maternal grandmother appealed from an order of the Separate Juvenile Court, Douglas County, Elizabeth Crnkovich, J., which ordered the immediate cessation of all efforts by the Department of Health and Human Services to place the children with relative foster care or adoptive placements.

* Holding: The Court of Appeals, Moore, J., held that trial court's judgment did not adequately address the requirements of the Nebraska Indian Child Welfare Act (NICWA) regarding placement preferences, nor did the record show good cause for the deviation, especially in manner ordered by court.

Reversed and remanded.

In re A.G.
2012 WL 1259078
No. A132447
Court of Appeal, First District, Division 3, California, April 16, 2012

*Synopsis: County social services agency filed dependency petition. The Superior Court, Alameda County, No. HJ08019040,Bari Robinson, J., sustained jurisdictional allegations, terminated reunification services, and terminated parental rights. Father appealed.

* Holding: The Court of Appeal, Siggins, J., held that:
(1) agency did not comply with Indian Child Welfare Act (ICWA) inquiry and notice requirements;
(2) father's pro per request to terminate his child support obligation did not bar his appeal;
(3) father's failure to raise ICWA claim in prior dependency did not bar the claim as res judicata; and
(4) father was not required to provide genetic testing to trigger ICWA.
Reversed and remanded with directions.

In re Adoption of L.O.
2012 WL 1242377
No. 20100082
Supreme Court of Utah, April 13, 2012

*Synopsis: Foster parents of minor child, who was enrolled member of Indian tribe, filed petition for adoption, and tribe filed objection. The Third District Juvenile Court, West Jordan Department, James R. Michie Jr., J., denied tribe's motion to transfer jurisdiction to tribe. Tribe appealed. The Court of Appeals, 2009 WL 4263472, dismissed appeal. Tribe filed petition for certiorari.

* Holding: The Supreme Court, Nehring, Associate Chief Justice, held that:
(1) tribe's consent to adoption rendered appeal moot, and
(2) tribe's appellate claims were not likely to evade review in future litigation, and thus public-interest exception to mootness doctrine did not apply.
Petition dismissed.

Washington v. Clark
274 P.3d 1058
No. 29508–7–III.
Washington Appellate Divison, April 12, 2012

*Synopsis: Defendant, an enrolled member of tribe, was convicted by jury in the Superior Court, Okanogan County, Jack Burchard, J., of first degree theft. Defendant appealed.

* Holding: The Court of Appeals, Korsmo, C.J., held that:
(1) state court had authority to issue search warrant for residence of defendant on reservation trust land, and
(2) defendant failed to establish that potential jurors had been systematically excluded from jury selection process.

 

Meherrin Tribe of North Carolina v. North Carolina State Commission of Indian Affairs
2012 WL 1085192
No. COA11–885
Court of Appeals of North Carolina, April 3, 2012

*Synopsis: (from the opinion) "Respondent North Carolina State Commission of Indian Affairs appeals from an order entered by the trial court reversing the Commission's decision to overturn an order entered by Senior Administrative Law Judge Fred G. Morrison granting summary judgment in favor of Petitioner Meherrin Tribe of North Carolina. The ultimate issue in dispute between the parties is the extent, if any, to which the Commission erred by declining to seat a representative favored by the leadership of the Tribe as the Meherrin representative on the Commission.FN1 After careful consideration of the Commission's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be reversed and that this matter should be remanded to the trial court for further remand to the Commission for the entry of an order dismissing the Tribe's petition."

* Holding: Not yet available

 

March

In re Welfare of Child of E.A.C.
812 N.W.2d 165
No. A11–1562
Court of Appeals of Minnesota, Feb. 21, 2012.
Review Denied March 27, 2012.

*Synopsis: Child's biological mother petitioned under Indian Child Welfare Act (ICWA) for return of custody after adoptive parent voluntarily terminated her parental rights. Following evidentiary hearing, the District Court, Aitkin County, John R. Solien, J., dismissed petition. Biological mother appealed."

* Holding: The Court of Appeals, Hudson, J., held that:
(1) in determining best interests of Indian child, upon a challenge to biological parent's petition for return of custody, district court must apply all subsections of ICWA section relating to involuntary child custody proceedings;
(2) burden of proof to determine whether active efforts have been made to reunify family, on a biological parent's petition for return of custody, is beyond a reasonable doubt and rests with the agency responsible for providing the remedial services;
(3) five-year-old order voluntarily terminating biological mother's parental rights was insufficient to show that active remedial efforts had failed in context of mother's current petition;
(4) proof beyond a reasonable doubt that return of custody of Indian child to biological parent is likely to result in serious emotional or physical damage to child is required when a challenge is made to a biological parent's petition for return of custody;
(5) required showing in involuntary custody proceeding under ICWA, that "continued custody" by biological parent is likely to result in serious emotional or physical damage, is not limited in its application to cases in which biological parent has custody at start of proceeding; and
(6) district court's finding that return of child to custody of biological mother was not in child's best interests was insufficient in absence of specific findings on potential for serious emotional or physical harm.
Reversed and remanded.

In re L.S.
2012 WL 966116
No. 26132
Supreme Court of South Dakota, March 21, 2012

*Synopsis: A petition was filed to terminate mother's parental rights to child. The Circuit Court of the Second Judicial Circuit, Minnehaha County, Kathleen K. Caldwell, J., terminated parental rights. Mother appealed."

* Holding: The Supreme Court, Konenkamp, J., held that:
(1) evidence supported finding that dependent child was not an Indian child, and
(2) evidence supported finding that termination of mother's parental rights was the least restrictive alternative available.
Affirmed.

Idaho Dept. of Health & Welfare v. Doe
2012 WL 892212
No. 39394
Court of Appeals of Idaho, March 16, 2012

*Synopsis: (from the opinion) "[…] Beginning in January 2010, the Idaho Department of Health and Welfare received six referrals regarding neglect, physical abuse, and lack of supervision of the children by Mother. Like Doe, Mother has a history of criminal charges and controlled substance use. The last referral occurred after Mother took one of the children to the hospital in 2010 because the child ingested medication Mother took for substance abuse addiction. Mother left the hospital and did not return until the next evening. After attempting, unsuccessfully, to locate Mother from April to May and determining that the children were being primarily cared for by their teenage aunt, the Department filed a petition under the Child Protective Act (CPA), I.C. §§ 16–1601 to 16–1637, requesting that the children be placed in shelter care. On May 11, the magistrate ordered that the children be placed in shelter care. At the ensuing shelter care hearing, the magistrate court placed the children in the legal custody of the Department. A guardian ad litem was appointed on May 13.

After an adjudicatory hearing on June 10, the magistrate found that the children were Indian children within the meaning of the Indian Child Welfare Act (ICWA), 25 U.S.C.A. §§ 1901 to 1923, and that appropriate notice had been given to the Indian custodian, Indian Tribe, or Secretary of the Interior as required by the Act. The magistrate determined that the children came within the jurisdiction of the court under the CPA due to abandonment, neglect, or lacking a stable home environment. Determining it was in the best interest of the children, the magistrate vested legal custody in the Department. […] A petition to terminate the parental rights of Doe and Mother was filed by the Department in April 2011. The petition requested termination on several grounds, including abandonment and neglect. "

* Holding: Not yet available

LaPlante v. Town Pump, Inc.
274 P.3d 724
No. DA 11–0486.
Supreme Court of Montana, March 13, 2012

*Synopsis: Enrolled member of Indian tribe filed personal injury suit in tribal court against owner and operator of gas station. Ultimately, the Ninth Circuit Court of Appeals, 394 Fed.Appx. 425, ruled that the tribal court lacked jurisdiction over member's claims. Thereafter, member filed a new action in state court, attempting to commence the action by transferring the tribal court action. Owner and operator filed motion to dismiss, and order was issued granting motion and allowing member 20 days from date of order to filed and serve complaint. Member filed complaint as a new action, rather than as an amended pleading in the original transfer action. The District Court, Glacier County, Laurie McKinnon, P.J., assumed jurisdiction of new action and consolidated the two cases. Member filed motion to substitute the judge in the new action, but the District Court denied the motion as untimely. Member appealed.

* Holding: The Supreme Court, Brian Morris, J., held that 30-day statutory time limit within which member was required to exercise her right to substitution of district court judge began to run when owner and operator first appeared in action to transfer tribal court action.

 

February

State of Colorado v. Cash Advance
No. 05CV1143
District Court of Appeal of Florida, Fifth District, Feb. 14, 2012

*Synopsis: (from the opinion) "Cries that such an interpretation makes tribes the targets of unscrupulous non-Indians whose only purpose is to rent immunity has three answers. First, and most significantly, my job is to apply the law, not to write it. If Congress does not want Indian nations hiring non-Indian operators to engage in payday loan businesses, or does not want Indians in the payday loan business at all, it could limit or eliminate tribal immunity for such businesses tomorrow. See Cabazon Band of Mission Indians, supra, 480 U.S. at 202. Second, "renting immunity" will be fundamentally ineffective, as we have seen here, because the allegedly unscrupulous non-Indian operators are never immune. Third, and maybe deepest, the paternalistic days when the law fretted about Indian nations being incapable of distinguishing between good and bad business opportunities are happily behind us. The Miami and Santee people are the ones we must trust, as long as Congress lets us trust them, to know what kinds of business relationships are in their best interests. They do not need the guidance of the State of Colorado, through either its law enforcement officials or its courts. "

* Holding: Not yet available

Related News Stories: Colo. judge issues new ruling in payday lending case against Indian tribes (iWatch News) 02/27/12

G.L. v. Department of Children and Families
2012 WL 511444
No. 5D11–1502
District Court of Appeal of Florida, Fifth District, Feb. 14, 2012

*Synopsis: Department of Children and Families (DCF) filed expedited petition to terminate parental rights. The Circuit Court, Osceola County, Daniel P. Dawson, J., terminated parental rights. Father appealed.

* Holding: The District Court of Appeal, Orfinger, C.J., held that:
(1) trial court had reason to believe that child was an "Indian child" within meaning of Indian Child Welfare Act (ICWA), and
(2) trial court's failure to comply with ICWA was not harmless error.
Reversed and remanded.

In re Welfare of Child of E.A.C.
2012 WL 539269
No. A11–1562
Court of Appeals of Minnesota, Feb. 21, 2012

*Synopsis: Child's biological mother petitioned under Indian Child Welfare Act (ICWA) for return of custody after adoptive parent voluntarily terminated her parental rights. Following evidentiary hearing, the District Court, Aitkin County, John R. Solien, J., dismissed petition. Biological mother appealed.

* Holding: The Court of Appeals, Hudson, J., held that:
(1) in determining best interests of Indian child, upon a challenge to biological parent's petition for return of custody, district court must apply all subsections of ICWA section relating to involuntary child custody proceedings;
(2) burden of proof to determine whether active efforts have been made to reunify family, on a biological parent's petition for return of custody, is beyond a reasonable doubt and rests with the agency responsible for providing the remedial services;
(3) five-year-old order voluntarily terminating biological mother's parental rights was insufficient to show that active remedial efforts had failed in context of mother's current petition;
(4) proof beyond a reasonable doubt that return of custody of Indian child to biological parent is likely to result in serious emotional or physical damage to child is required when a challenge is made to a biological parent's petition for return of custody;
(5) required showing in involuntary custody proceeding under ICWA, that �continued custody� by biological parent is likely to result in serious emotional or physical damage, is not limited in its application to cases in which biological parent has custody at start of proceeding; and
(6) district court's finding that return of child to custody of biological mother was not in child's best interests was insufficient in absence of specific findings on potential for serious emotional or physical harm.
Reversed and remanded.

Koscielak v. Stockbridge–Munsee Community
2012 WL 447275
No. 2011AP364
Court of Appeals of Wisconsin, Feb. 14, 2012

*Synopsis: Patron of Indian tribe's supper club brought tort action against tribe and tribe's liability insurer, seeking recovery for injuries that allegedly were sustained when patron slipped and fell in supper club's parking lot. The Circuit Court, Shawano County, James R. Habeck, J., dismissed claims. Patron appealed.

* Holding: The Court of Appeals, Mangerson, J., held that:
(1) tribe's sovereign immunity from suit extended to its supper club;
(2) even if state constitution's provision governing remedies for wrongs authorized patron's suit, provision had been preempted by federal law; and
(3) that tribe was protected by tribal sovereign immunity precluded patron from recovering against tribe's liability insurer under direct-action statute.
Affirmed.

State v. Jim
2012 WL 402051
No. 84716–9
Supreme Court of Washington, En Banc, Feb. 9, 2012

*Synopsis: Enrolled member of Yakima Indian Nation moved to dismiss citation for unlawfully retaining undersized sturgeon. The District Court, Klickitat County, granted motion. State appealed. The Superior Court, Klickitat County, reversed. Discretionary review was granted. The Court of Appeals, 156 Wash.App. 39, 230 P.3d 1080,Brown, A.C.J., reversed the superior court and reinstated district court's order of dismissal. The Supreme Court accepted discretionary review.

* Holding: The Supreme Court, Owens, J., held that in-lieu fishing site, as set aside by Congress exclusively for members of four Indian tribes including the Yakima Nation to exercise their treaty fishing rites, was an established "reservation" held in trust by United States, such that state did not have criminal jurisdiction over fishing site with respect to enrolled members' alleged violations of state provisions.
Judgment of Court of Appeals affirmed.

Related News Stories: Supreme Court upholds tribal fising rights after long battle (Yakima Herald) 2/09/12)

January

In re S.M.M.D.
2012 WL 247964
No. 55541.
Supreme Court of Nevada, January 26, 2012

*Synopsis: (from the opinion) "This appeal requires us to decide whether, under section 1919 of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901–1963 (2006), a tribal-state agreement respecting child custody proceedings may vest a Nevada district court with subject matter jurisdiction to take a relinquishment of parental rights under circumstances where section 1911(a) of the ICWA, 25 U.S.C. § 1911(a), would otherwise lay exclusive jurisdiction with the tribal court. We conclude that the ICWA, in keeping with fundamental principles of tribal autonomy, allows for tribal-state agreements for concurrent jurisdiction even when the tribe would have exclusive jurisdiction absent an agreement. Therefore, we affirm."

* Holding: Not yet available.

State of Alaska, Department of Natural Resources v. Nondalton Tribal Council
268 P.3d 293
No. S–13681
Supreme Court of Alaska, Jan. 20, 2012

*Synopsis: Indian tribes brought action against Department of Natural Resources (DNR) seeking declaratory judgment that the Bristol Bay Area land use plan was unlawful. The Superior Court, Third Judicial District, Dillingham, Fred Torrisi, J., denied DNR's motion to dismiss. DNR petitioned for interlocutory review.

* Holding: Upon grant of review, the Supreme Court, Stowers, J., held that:
(1) 30-day period for appeals from final agency actions did not apply to Indian tribes' action, and
(2) plan was not a "regulation" pursuant to the Administrative Procedure Act (APA).
Reversed and remanded.

David S. v. State Department of Health & Social Services
2012 WL 163923
Nos. S–13874, S–14208
Supreme Court of Alaska, January 20, 2012

*Synopsis: Office of Children's Services (OCS) petitioned to terminate father's parental rights. The Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, J., granted petition. Father appealed.

* Holding: On rehearing, the Supreme Court, Fabe, J., held that:
(1) evidence was sufficient to support trial court's finding that father had abandoned child;
(2) child was a child in need of aid based on father's incarceration;
(3) trial court did not err in finding that father failed to remedy the conditions that placed child in need of aid;
(4) any failure by OCS to comply with the Indian Child Welfare Act's placement preferences did not result in a failure to take active efforts to prevent the breakup of the Indian family;
(5) evidence was sufficient to support trial court's finding that termination of father's parental rights was in child's best interests;
(6) father's mother was not an Indian custodian pursuant to the Indian Child Welfare Act; and
(7) father failed to show he was prejudiced by any alleged ineffective assistance by counsel.
Affirmed.

Bradley v. Bear
2012 WL 167337
No. 104,080
Court of Appeals of Kansas, January 20, 2012

*Synopsis: Family partners, who were enrolled members of Indian tribe, brought action against defendant partner, seeking to dissolve farming partnership and order partition and sale of real property located on reservation. Defendant partner filed motion to dismiss based on lack of subject matter jurisdiction, alleging that tribal court was proper forum. The District Court, Brown County, James A. Patton, J., denied the motion and order partition and sale, and defendant partner appealed."

* Holding: The Court of Appeals, Hill, J., held that district court lacked jurisdiction.
Reversed and remanded with directions..

Carden v. Owle Construction, LLC
2012 WL 120069
No. COA11–298.
Court of Appeals of North Carolina, January 17, 2012

*Synopsis: Plaintiff brought action against tribal casino and construction company after he was struck by a passing vehicle while standing at a crosswalk at an intersection where construction company was carrying out improvements. Casino and company filed motion to dismiss, alleging that tribal casino gaming entity was a necessary party, and casino moved in the alternative to "remove" to the tribal court. The Superior Court entered a consent order, stayed the action, and "removed" the matter to the Tribal Court. After jury trial, which resulted in mistrial, and settlement of plaintiff's claims against casino and gaming entity, plaintiff filed notice of dismissal in the Tribal Court and thereafter filed motion to lift the stay. The Superior Court, Durham County, Shannon R. Joseph, J., denied the motion, and plaintiff appealed.

* Holding: The Court of Appeals, McGee, J., held that action was removed, and thus superior court could not lift stay.
Affirmed.

Martha S. v. State Department of Health & Social Services, Office Of Children's Services
2012 WL 104471
Nos. S–14049, S–14072
Supreme Court of Alaska, Jan. 13, 2012

*Synopsis: In child dependency proceeding, the Superior Court, Fourth Judicial District, Fairbanks, Michael A. MacDonald, J., adjudicated parents' two youngest children as children in need of aid and placed the children in the custody of the Office of Children's Services (OCS). Parents appealed.;

* Holding: The Supreme Court, Fabe, J., held that:
(1) expert testimony from psychologist licensed out of state was admissible;
(2) statements child made to social worker during therapy sessions were admissible;
(3) trial court error, if any in admitting testimony from OCS permanency supervisor describing statements made to her from OCS staff manager concerning an incident involving father yelling at OCS staff in which the police were called and father was removed from OCS offices was harmless;
(4) evidence supported finding that parents' two youngest children were children in need of aid on the basis that conduct or conditions created by the parent resulted in mental injury to the child or placed the child at substantial risk of mental injury; and
(5) evidence supported finding that the OCS made active efforts to prevent the breakup of the family.
Affirmed.

 

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