2014 State Court Cases

December

In re S.B.C.
Briefs from Turtle Talk
2014 WL 7403958
No. DA 14-0084
Supreme Court of Montana, Submitted on Briefs Oct. 15, 2014. Decided Dec. 30, 2014.

*Synopsis: The Department of Public Health and Human Services, Child and Family Services Division, sought permanent legal custody of Indian child with right to consent to adoption. The District Court, Missoula County, Edward P. McLean, P.J., terminated both parents' rights to the child, and granted the Department permanent legal custody with right to consent to adoption. Mother and father appealed.

* Holding: The Supreme Court, en banc, Jim Rice, J., held that:
(1) good cause existed to deny transfer of jurisdiction over custody matter involving Indian child to the tribal court;
(2) the proceeding had not advanced to a stage that rendered the Tribe's motion for transfer of jurisdiction to the tribal court untimely as a matter of law;
(3) Indian Child Welfare Act (ICWA) section, providing that "no termination of parental rights may be ordered in the absence of testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child," did not apply where father never had custody of the child; and
(4) the District Court did not abuse its discretion in terminating mother's parental rights.
Affirmed.

State v. Yang
2014 WL 7343765
A13-1430
Court of Appeals of Minnesota, Filed December 29, 2014.

Legal Topics: Search Warrant; Indian Civil Rights Act; Tribal Casino

November

Sue/perior Concrete & Paving, Inc.. v. Lewiston Golf Course Corporation
2014 WL 6633546
Court of Appeals of New York, Nov. 25, 2014.

*Synopsis: Concrete and paving contractor brought action against, inter alia, corporation that was formed under laws of Seneca Nation of Indians, asserting causes of action for foreclosure of mechanic's lien, breach of contract, breach of implied covenant of good faith and fair dealing, quantum meruit, promissory estoppel, and fraud, in relation to contract to build golf course with associated driving range, club house, and pro shop. The Supreme Court, Niagara County, Catherine Nugent Panepinto, J., denied corporation's motion to dismiss on sovereign immunity grounds. Corporation appealed. The Supreme Court, Appellate Division, Peradotto, J., 109 A.D.3d 80, 968 N.Y.S.2d 271, determined that corporation was not arm of tribe, and thus was not entitled to share tribe's immunity from suit. Corporation was granted leave to appeal, and question was certified.

* Holding: The Court of Appeals, Pigott, J., held that corporation was not entitled to tribal sovereign immunity.
Affirmed.

In re F.O.
22 N.E.3d 456 (Ill.App. 1 Dist.)
No. 1-14-0954.
Appellate Court of Illinois, First District, Fifth Division. January 2015 Term.
Nov. 21, 2014.

*Synopsis: State petitioned to terminate mother's parental rights. The Circuit Court, Cook County, Maxwell Griffin, Jr., J., determined that child was not subject to Indian Child Welfare Act (ICWA), and, after a bench trial, terminated mother's parental rights. Mother appealed.

* Holding: The Appellate Court, Gordon, J., held that trial court sufficiently determined that child was not subject to ICWA.
Affirmed.

Asa'carsarmuit Tribal Council v. Wheeler III
2014 WL 6492018
No. S-15318.
Supreme Court of Alaska, Nov. 21, 2014.

*Synopsis: Father filed emergency motion to modify custody after State initiated Child In Need of Aid (CINA) action against mother. Tribal council which had issued original custody order was permitted to intervene. The Superior Court, Third Judicial District, Anchorage, Andrew Guidi, J., awarded father primary physical custody. Council appealed.

* Holding: The Supreme Court, Fabe, C.J., held that council lacked standing to appeal order modifying custody from which neither father nor mother appealed. Appeal dismissed.

California Valley Miwok Tribe v. California Gambling Control Commission
231 Cal.App.4th 885, 180 Cal.Rptr.3d 499
D064271.
Court of Appeals, Fourth Dist. California, Nov. 21, 2014.

*Synopsis: Tribe brought action against Gambling Control Commission for declaratory, injunctive, and writ relief to require the Commission to pay over the Revenue Sharing Trust Fund (RSTF) funds to the tribe's purported chairperson. A rival purported chairperson intervened. The Superior Court, San Diego County, No. 37-2008-00075326-CU-CO-CTL, Ronald L. Styn, J., stayed the proceedings. Tribe petitioned for writ of mandate. The Court of Appeal granted the petition, 2012 WL 6584030. The Superior Court granted summary judgment for the Commission. Tribe appealed.

* Holding: The Court of Appeal, Irion, J., held that Commission properly held RSTF funds in trust for tribe pending resolution of federal court lawsuit to recognize a tribal leader.
Affirmed.

In re Interest of Shayla H.
289 Neb. 473
No. S-13-643
Supreme Court of Nebraska, Nov. 14, 2014.

*Synopsis: The Department of Health and Human Services (DHHS) initiated dependency proceedings concerning father's three Native American children. The Juvenile Court, Lancaster County, Linda S. Porter, J., adjudicated children as dependent, and subsequently entered dispositional order the DHHS had made reasonable efforts at reunification, but that it was in best interests of children that father have only physical custody of children and that DHHS retain legal custody. Father appealed. The Court of Appeals, 22 Neb.App. 1, 846 N.W.2d 668, affirmed in part, reversed in part, and remanded. DHHS petitioned for review.

* Holding: The Supreme Court, Stephan, J., held that in dependency proceedings involving Native American children, DHHS had to make active efforts at reunification, not merely reasonable efforts, pursuant to Indian Child Welfare Act (ICWA) and Nebraska Indian Child Welfare Act (NICWA).
Affirmed.

Department of Human Services v. M.D
2014 WL 5897453
No. 13JU01640; A156322.
Court of Appeals of Oregon, Nov. 13, 2014.

*Synopsis: In child protection case involving Indian child, the Circuit Court, Jackson County, Patricia Crain, J., entered order determining that Department of Human Services (DHS) made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of an Indian family. Mother appealed.

* Holding: The Court of Appeals, Ortega, P.J., held that DHS made active efforts.
Affirmed.

Chloe W. v. State, Dep't of Health & Social Serv., and Office of Children's Serv.
336 P.3d 1258
No. S?15351.
Supreme Court of Alaska, Nov. 7, 2014.

*Synopsis: The Office of Children's Services (OCS) petitioned to terminate mother's parental rights to Indian child. The Superior Court, First Judicial District, Juneau, Louis J. Menendez, J., terminated parental rights. Mother appealed.

* Holding: The Supreme Court, Fabe, C.J., held that:
(1) counsel's decision to enter into a stipulation as to psychiatrist's proposed testimony, rather than request a hearing to address the statements psychiatrist made in his affidavit, did not prejudice mother;
(2) evidence supported finding that mother failed to remedy the conduct that placed child at substantial risk of harm;
(3) evidence supported finding that the Office of Children's Services (OCS) made active efforts to prevent the breakup of mother's Indian family; and
(4) evidence supported finding that returning child to mother would likely result in serious harm.
Affirmed.

In re M.H.
337 P.3d 711
No. 111,024.
Court of Appeals of Kansas, Nov. 7, 2014.

*Synopsis: Father appealed order of the District Court, Shawnee County, Jean M. Schmidt, J., terminating his parental rights.

* Holding: The Court of Appeals, Leben, J., held that:
(1) state sufficiently proved that it had complied with requirement of Indian Child Welfare Act (ICWA);
(2) clear and convincing evidence showed that father was unfit; and
(3) termination was in child's best interests.
Affirmed.

October

Dinwiddie Dep't of Social Services v. Nunnally
764 S.E.2d 526
Record No. 131584.
Supreme Court of Virginia, October 31, 2014.

*Synopsis: Department of Social Services (DSS) filed petitions for foster care plans with the goal of adoption and to terminate parental rights of father and Indian mother. Indian tribe filed a motion to intervene and filed a motion to transfer jurisdiction to tribal court under the Indian Child Welfare Act (ICWA). The Juvenile and Domestic Relations District Court, Dinwiddie County, denied the petitions to terminate parental rights. The DDSS and the guardian ad litem appointed to represent the children appealed. The Circuit Court, Dinwiddie County, found that good cause existed not to transfer the proceeding to tribal court and terminated mother's and father's parental rights, and parents appealed. The Court of Appeals reversed the judgment of the trial court on the motion to transfer, vacated the order terminating the parental rights of the mother and father, and remanded, and appeal was taken.

* Holding: The Supreme Court held that case would be remanded to determine whether to transfer termination action involving Indian child to tribal court in light of Thompson, which rejected "best interests of child test" in favor of the more limited test involving an immediate serious emotional or physical harm.
Affirmed.

In re L.S., J.R., et al.
2014 WL 5395786
C075626
Court of Appeal, Third District, California, Filed October 24, 2014.

*Synopsis: County Health and Human Services Agency filed dependency petition alleging children were at risk. Following contested dispositional hearing, parents filed motion to modify bypass order and sought reunification services.The Superior Court, El Dorado County, Nos. SDP20130007 & SDP20130008, Dylan M. Sullivan, Court Commissioner, denied the motion, terminated parental rights, and selected adoption as the children's permanent plan. Parents appealed.

* Holding: The Court of Appeal, Nicholson, Acting P.J., held that:
(1) preponderance of the evidence burden of proof applied to parents' petitions for modification;
(2) error in applying heightened clear and convincing evidence standard of proof was not harmless;
(3) court was required to consider whether Indian Child Welfare Act (ICWA) applied; and
(4) beneficial parental relationship exception did not apply.
Reversed and remanded.

In re McCarrick/Lamoreaux
2014 WL 5393507
Docket Nos. 315510, 317403 & 318475.
Court of Appeals of Michigan, Oct. 23, 2014.

*Synopsis:Department of Human Services petitioned to remove three minor children from their mother's home. The Circuit Court, Chippewa County, James P. Lambros, J., entered orders. Mother appealed as of right from order removing her minor daughter from her father's care and custody, and by delayed leave granted from orders removing the children from her care. Appeals were consolidated. The Court of Appeals, 2014 WL 667583, determined that it lacked jurisdiction and dismissed appeals. Mother sought leave to appeal. The Supreme Court vacated with directions.

* Holdings: The Court of Appeals held that:
(1) a parent may only appeal as of right an order of disposition, not merely an order;
(2) finding that children, who were of Native American heritage, were likely to suffer harm complied with both Indian Child Welfare Act and the Family Preservation Act;
(3) removal of the children violated the Acts;
(4) trial court's active efforts findings were sufficient under the Family Preservation Act; and
(5) conditional reversal was warranted.

In the matter of L.M.
2014 WL 5365983
1200227; Petition No. 12JU215; A156238.
Court of Appeals of Oregon, Argued and Submitted July 24, 2014, Decided Oct. 22, 2014.

*Synopsis: In child dependency proceedings, parents appealed judgment of the Circuit Court, Douglas County, William A. Marshall, J., changing the permanency plan for their child from reunification to adoption.

* Holding: The Court of Appeals, Ortega, P.J., held that:
(1) permanency hearing was not a key juncture in which due process prohibited admission of exhibits under relaxed standards for competency of evidence;
(2) agency provided active efforts to parents under Indian Child Welfare Act (ICWA);
(3) father and mother failed to make sufficient progress to allow child to return home safely; and
(4) change in plan from reunification to adoption was not a "foster care placement" under ICWA.
Affirmed.

Stop the Casino 101 Coalition v. Brown
Order Modifying Opinion and Denying Rehearing on 10/28/14; No Change in Judgment
2014 WL 4947088
A140203
Court of Appeal, First District, Division 3, California, Oct. 3, 2014.
This case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for the most recent information.

*Synopsis: Objectors brought action against Governor for declaratory judgment that a compact between the state and a tribe to operate a gaming casino was invalid. The Superior Court, Sonoma County, No. SCV?251712, granted summary judgment for Governor. Objectors appealed.

* Holding: The Court of Appeal, Pollak, Acting P.J., held that Graton Rancheria Restoration Act granted jurisdiction over land to tribe. Affirmed.

C.F. v. The Superior Court
2014 WL 4908005
A142192
Court of Appeal, First District, Division 4, California, Filed Oct. 1, 2014.

*Synopsis: Child dependency proceeding was commenced. The Superior Court, Mendocino County, Nos. SCUKJVSQ 13?16775, SCUKJVSQ 13?16776, SCUKJVSQ 13?16777, Cindee F. Mayfield, J., issued order setting a permanent plan hearing, and mother petitioned for extraordinary relief.

* Holding: The Court of Appeal, Rivera, J., held that:
1) Court of Appeal would apply substantial evidence review, and
2) evidence was sufficient to support finding that County Health and Human Services Agency made active efforts required by the Indian Child Welfare Act.

September

In re M.S.
2014 MT 265
No. DA 13?0790.
Supreme Court of Montana,Submitted on Briefs Aug. 13, 2014, Decided Sept. 30, 2014.

*Synopsis: Department of Public Health and Human Services filed petition to terminate parental rights of mother and Indian father to Indian child. Notice was given to father's tribe, and tribe intervened. The petition was dismissed and then refiled. Mother voluntarily relinquished her parental rights. The Eighth Judicial District Court, County of Cascade, Dirk M. Sandefur, J., entered order terminating father's parental rights, and he appealed.

* Holding: The Supreme Court, Beth Baker, J., held that:
(1) evidence did not show that Department strictly complied with requirements for notice to tribe under Indian Child Welfare Act (ICWA);
(2) Department's failure to strictly comply with notice requirements was harmless error;
(3) Department made active efforts to provide remedial services and rehabilitative programs designed to prevent breakup of Indian family, as prerequisite to termination of father's parental rights;
(4) district court adequately found that continued custody of child by father was likely to result in serious emotional or physical damage to child; and
(5) termination of parental rights was not by summary judgment.
Affirmed.

In re Francisco D.
2014 WL 4803918
B251917
Court of Appeal, Second District, Division 3, California, Filed Sept. 29, 2014.

*Synopsis: County department of children and family services (DCFS) filed dependency petition. The Superior Court, No. CK98476, Los Angeles County, Jacqueline Lewis, Referee, sustained jurisdictional allegations and removed child from adoptive mother's care. Mother appealed.

* Holding: The Court of Appeal, Kitching, J., held that:
(1) child's sister had been abused or neglected by adoptive mother;
(2) child had been "subjected to an act or acts of cruelty" by mother; and
(3) there was a substantial risk to the emotional and physical well-being of child.
Affirmed.

Picayune Rancheria of Chukchansi Indians v. Brown
2014 WL 4732582
C074506.
Court of Appeal, Third District, California, Sept. 24, 2014.

*Synopsis: Competing casino operator brought action against Governor for injunctive and writ relief against the Governor's concurrence in the approval of a new casino by the Secretary of the Interior under Indian Gaming Regulatory Act (IGRA). The Superior Court, Sacramento County, No. 34201280001326CUWMGDS, Michael P. Kenny, J., sustained demurrer without leave to amend. Competing casino operator appealed.

*Holding: The Court of Appeal, Robie, J., held that Governor's concurrence in approval of new casino under IGRA did not require California Environmental Quality Act (CEQA) review. Affirmed.

Idaho v. Coeur d'Alene Tribe
49 F.Supp.3d 751
Case No. 2:14–cv–000170–BLW
United States District Court, D. Idaho.
Signed Sept. 5, 2014.

*Synopsis: State of Idaho filed action against Native American tribe, seeking to enjoin tribe from conducting poker tournaments at casino owned by tribe. The State moved for preliminary injunction, and the tribe moved to dismiss.

*Holdings: The District Court, B. Lynn Winmill, Chief Judge, held that:
(1) tribe's sovereign immunity was abrogated by the Indian Gaming Regulatory Act (IGRA);
(2) District Court would not defer, under doctrine of primary jurisdiction, to National Indian Gaming Commission (NIGC) to decide whether poker was Class III game, under IGRA;
(3) IGRA did not authorize injunctive relief without a showing of irreparable harm; and
(4) State of Idaho was entitled to preliminary injunction.

Seminole Tribe of Florida v. Florida
49 F.Supp.3d 1095
Civil Action No. 12–62140–Civ
United States District Court, S.D. Florida
Signed Sept. 5, 2014.

*Synopsis: Indian tribe brought action against executive director of state department of revenue challenging state's imposition of rental tax on rent paid to tribe by non-Indian lessees for use of commercial space at tribe's casinos and of utility tax on electricity delivered to tribe on tribal reservations. Parties filed cross-motions for summary judgment.

*Holdings: The District Court, Robert N. Scola, Jr., J., held that:
(1) Indian Reorganization Act barred state's imposition of rental tax;
(2) federal regulatory scheme regarding leases of restricted Indian land preempted state's imposition of rental tax; and
(3) utility tax was unenforceable

Native Village of Tununak v. State, Dept. of Health & Social Services, Office of Children's Services
Briefs from Turtle Talk
2014 WL 4494464
No. S?14670.
Supreme Court of Alaska, Sept. 12, 2014.

*Synopsis: After Indian child was found to be child in need of aid (CINA) and parents' parental rights were terminated, Indian tribe sought to enforce Indian Child Welfare Act's (ICWA) placement preferences, and child's non-Indian foster parents petitioned for adoption. The Superior Court, Third Judicial District, Anchorage, Frank A. Pfiffner, J., granted foster parents' adoption petition. Tribe appealed.

* Holding: The Supreme Court, Stowers, J., held that:
(1) ICWA's preferences did not apply, and
(2) tribe's disclosure of grandmother's contact information did not amount to formal adoption request.
Affirmed.

Related News Stories: DOJ may intervene in Alaska Supreme Court case (Alaska Public Media) 10/29/14

In re N.L. and M.L.
2014 WL 4415309
Nos. 3?14?0172, 3?14?0173.
Appellate Court of Illinois, Third District, Sept. 9, 2014.

*Synopsis: State petitioned to terminate parental rights of father, a member of an Indian tribe, of one child and to terminate his legal relationship with other child, both of whom were born during marriage to mother. The 9th Judicial Circuit Court, McDonough County, Patricia A. Walton, J., terminated parental rights and legal relatonship. Father appealed.

* Holding: The Appellate Court, McDade, J., held that:
1) circuit court did not have jurisdiction to allow State to supplement appellate record to demonstrate its compliance with the Indian Child Welfare Act (ICWA);
2) Appellate Court would allow State to supplement record in interests of justice;
3) record lacking submissions from State to tribe did not establish compliance with notice requirements of ICWA;
4) required notice did not apply to child who was later determined not to be father's biological child;
5) court exceeded its statutory authority in terminating parental rights to nonbiological child;
6) court's error in exceeding its authority was not harmless; and 7 there was no conflict of interest in counsel's joint representation of father and mother.
Reversed and remanded.

August

Miccosukee Tribe of Indians of South Florida v. Bermudez
145 So.3d 157
No. 3D13?2153.
District Court of Appeal of Florida,Third District, July 2, 2014, Rehearing Denied Aug. 26, 2014.

*Synopsis: Motorist who was injured, and whose wife was killed, in collision with vehicle driven by one?tribe?member and owned by another?tribe?member brought action against?tribe?members. After entry of final judgment against?tribe?members, motorist moved to add?tribe?as a judgment debtor on the ground that it had funded and guided?tribe?members' defense. The Circuit Court, Miami?Dade County, Ronald Dresnick, J., granted the motion and entered a second final judgment against?tribe.?Tribe?appealed

* Holding: The District Court of Appeal, Logue, J., held that tribe could not be held liable to motorist based on its having funded and guided tribe members' defense to the lawsuit.
Reversed and remanded.

In re Candace A.
2014 WL 4160043
No. S-15251
Supreme Court of Alaska, Aug. 22, 2014

*Synopsis: The Office of Children's Services (OCS) filed a petition to adjudicate Indian child as a child in need of aid. The Superior Court, Fourth Judicial District, Bethel, Charles W. Ray, Jr., J., adjudicated child as a child in need of aid and ordered her to be returned to her parents' home. The OCS appealed.

* Holding: The Supreme Court, Maassen, J., held that the Indian Child Welfare Act's (ICWA) requirement that any decision to place an Indian child with someone other than the child's parent or Indian custodian must be "supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child" did not require the expert to have expertise in Alaskan Native culture, and thus social workers could qualify as experts.
Reversed and remanded.

Outsource Services Management, LLC v. Nooksack Business Corp.
2014 WL 4108073
No. 88482-0
Supreme Court of Washington, En Banc, Aug. 21, 2014

*Synopsis: Bank's successor in interest brought action against casino-operating tribal corporation for breach of loan agreement. The Superior Court, Whatcom County, Steven J. Mura, J., denied tribal corporation's omnibus motion to dismiss. Tribal corporation filed interlocutory appeal. The Court of Appeals, 172 Wash.App. 799, 292 P.3d 147, affirmed. Tribal corporation filed petition for review.

* Holding: The Supreme Court, Owens, J., held that:
(1) state court jurisdiction over action did not infringe on tribal sovereignty, and
(2) Supreme Court was entitled to take into account tribal corporation's consent in loan agreement to jurisdiction in state courts.
Decision of Court of Appeals affirmed.

In re K.S.
448 S.W.3d 521
No. 12-14-00061-CV
Court of Appeals of Texas, Aug. 21, 2014

*Synopsis: In termination of parental rights proceedings involving Indian child, the 392nd Judicial District Court, Henderson County, terminated mother's parental rights to child. Mother appealed.

* Holding: The Court of Appeals, James T. Worthen, C.J., held that:
(1) trial court's failure to strictly comply with notice requirements of Indian Child Welfare Act (ICWA) did not invalidate termination order, as Indian tribe had actual notice and participated in proceedings;
(2) state family code was not preempted by ICWA;
(3) termination under ICWA was tried by consent;
(4) trial court did not abuse its discretion in submitting broad-form question to jury;
(5) burden of proof required to "satisfy the court" that active efforts were made and "proved unsuccessful" is evidence beyond a reasonable doubt; and
(6) evidence supported termination of mother's parental rights.
Affirmed.

In re Alexandria P.
176 Cal.Rptr.3d 468
No. B252999
Court of Appeal, Second District, Division 5, California, Filed August 15, 2014

*Synopsis: County department of children and family services (DCFS) filed dependency petition. The Superior Court, Los Angeles County, No. CK58667, Amy M. Pellman, J., sustained jurisdictional allegations, terminated father's reunification services and scheduled a hearing for termination of parental rights, granted de facto parent status to foster parents, found that foster parents had not demonstrated good cause to depart from Indian Child Welfare Act (ICWA) placement preferences, and ordered a gradual transition for the child to move from the foster parents' home to pre-adoptive placement in child's paternal step-grandfather's niece's home. Foster parents appealed.

* Holding: The Court of Appeal, Kriegler, J., held that:
(1) foster parents lacked standing to challenge constitutionality of ICWA placement preferences;
(2) child's tribe's consent to foster care placement with a family outside of foster care placement preferences identified in ICWA did not waive ICWA adoption placement preferences;
(3) clear and convincing standard of proof applies to determinations of good cause to depart from ICWA placement preferences;
(4) departure from ICWA placement preferences requires significant risk of serious harm to child, not certainty of serious harm;
(5) trial court was required to consider the bond between child and her foster family in determining whether to depart from ICWA placement preferences; and
(6) trial court was required to consider best interest of child in determining whether to depart from ICWA placement preferences.
Reversed and remanded with directions.

South v. Lujan
2014 WL 3908038
No. 32,015
Court of Appeals of New Mexico, Aug. 11, 2014

*Synopsis: Former police officer, a non-Indian, brought action against tribal police chief, an Indian, and tribe's non-Indian police captain and employee relations manager for violations of the New Mexico Human Rights Act, retaliatory discharge, and tortious interference with contract, conduct that allegedly occurred both within and outside of Indian county. The District Court, Sandoval County, Louis P. McDonald, D.J., granted defendants' motion to dismiss, and former officer appealed.

* Holding: The Court of Appeals, Bustamante, J., held that District court's failure to make factual findings, or to indicate the legal basis for its decision to grant defendants' motion to dismiss for lack of jurisdiction, precluded review and warranted reversal and remand.
Reversed and remanded.

In re Isaiah W.
2014 WL 3889076
No. B250231
Court of Appeal, Second District, Division 3, California, August 8, 2014

*Synopsis: Department of Children and Family Services filed a petition alleging that mother's and father's illicit drug use placed child at risk of harm. After terminating parents' reunification services and setting a hearing on the termination of parental rights, the Superior Court, Los Angeles County, No. CK91018, Jacqueline H. Lewis, J., entered order terminating mother's and father's parental rights. Mother appealed.

* Holding: The Court of Appeal, Kitching, J., held that mother forfeited her right to raise a challenge to the juvenile court's finding that the Indian Child Welfare Act (ICWA) did not apply.
Affirmed.

Westmoreland Resources v. Dep't of Revenue
330 P.3d 1188
No. DA 13?0547.
Supreme Court of Montana, Submitted on Briefs May 8, 2014, Decided Aug. 5, 2014.

*Synopsis: Coal producer and Department of Revenue filed joint petition for interlocutory adjudication of substantive question of law, requesting determination as to whether deduction taken by producer for coal severance and gross proceeds taxes paid to Indian tribe, as owner of coal, to reduce amount owning under Resource Indemnity Trust and Ground Water Assessment Tax (RITT) was proper. The First Judicial District Court, Lewis and Clark County, Kathy Seeley, P.J., held in favor of Department. Producer appealed.

* Holding: The Supreme Court, Jim Rice, J., held that taxes that producer paid to tribe were not taxes paid on production subject to deduction from contract sales price.
Affirmed.

July

Grace L. v. State, Dept. of Health & Social Services, Office of Children's Services
329 P.3d 980
No. S-15108
Supreme Court of Alaska, July 18, 2014

*Synopsis: The Office of Children's Services (OCS) filed a petition to terminate mother's parental rights to child. The Superior Court, Third Judicial District, Palmer, Eric Smith, J., terminated parental rights. Mother appealed.

* Holding: The Supreme Court, Bolger, J., held that:
(1) evidence supported finding that child was a child in need of aid (CINA);
(2) evidence supported finding that mother suffered from a mental illness that placed child at risk of harm;
(3) evidence supported finding that child would likely suffer serious emotional or physical damage if mother's custody of child were to continue; and
(4) trial judge was not required to appoint another judge to hear mother's requests for substitution of counsel.
Affirmed.

Simmonds v. Parks
Briefs and Material from Turtle Talk
329 P.3d 995
No. S-14103
Supreme Court of Alaska, July 18, 2014

*Synopsis: Father, whose parental rights were terminated by the Minto Tribal Court, filed a complaint with the Alaska Superior Court requesting physical custody of child. The Superior Court concluded that the Minto Tribal Court's judgment was not entitled to full faith and credit because father had been denied minimum due process. Foster parents filed petition for review. The Supreme Court granted the petition and remanded the case. On remand, the Superior Court, Fourth Judicial District, Fairbanks, Paul R. Lyle, J., concluded that it was not harmless error for the Minto Tribal Court to have failed to provide a meaningful opportunity for father to challenge Minto's jurisdiction over him. Foster parents filed petition for review.

* Holding: The Supreme Court, Fabe, C.J., held that:
(1) because father failed to exhaust available tribal court remedies by appealing to the Minto Court of Appeals, father was not permitted to relitigate his minimum due process and jurisdictional claims, and therefore, Supreme Court would accord full faith and credit to the Minto Tribal Court's judgment terminating father's parental rights, and
(2) Indian Child Welfare Act's (ICWA) full faith and credit mandate applied to the Minto Tribal Court's order which terminated the parental rights of parents of Indian child.

Related News Stories: Alaska Supreme Court affirms full faith and credit to tribal court orders in Simmonds v. Parks decision (NARF News) 7/18/14

State v. Sanchez
2014 WL 3048231
No. 33,008
Court of Appeals of New Mexico, July 3, 2014

*Synopsis: Defendant, a non-Indian, was convicted in a bench trial in the Magistrate Court, Santa Fe County, of aggravated driving while under the influence of intoxicating liquor or drugs (DWI) following his arrest on tribal property by a tribal police officer who was cross-commissioned as a county special deputy sheriff. Defendant appealed. The District Court, Santa Fe County, Michael E. Vigil, D.J., again convicted him of DWI. Defendant appealed.

* Holding: The Court of Appeals, Wechsler, J., held that:
(1) as a matter of first impression, tribal officer was properly cross-commissioned as a special deputy;
(2) as a matter of first impression, officer was authorized to investigate and arrest defendant for DWI;
(3) officer was authorized to carry a concealed weapon; and
(4) officer's increased pay as part of grant program with Bureau of Indian Affairs (BIA) concerning dedicated DWI officers did not provide defendant with a statutory defense concerning an officer's receipt of prohibited compensation.
Affirmed.

June

In re Mischa S.
22 Neb.App. 105
No. A-13-265
Court of Appeals of Nebraska, June 24, 2014

*Synopsis: State filed petition to have child adjudicated as lacking proper parental care. Parents, one of whom was member of Indian tribe, entered no contest admission to petition, and child was allowed to remain at home under supervision. Guardian ad litem (GAL) subsequently moved to remove child from home. Following a hearing, the County Court, Buffalo County, Graten D. Beavers, J., ordered the child to be placed in foster care and declared a provision of the Nebraska Indian Child Welfare Act (ICWA) unconstitutional. Parents appealed.

* Holding: The Court of Appeals Moore, J., held that:
(1) there was not clear and convincing expert evidence that serious emotional damage would result if child, who became subject of original adjudication petition because of excessive school absences, were not removed from parents' home, as
required for foster care placement under Nebraska Indian Child Welfare Act (ICWA); (2) juvenile court's sua sponte determination, that provision of Nebraska Indian Child Welfare Act (ICWA) was unconstitutional as applied, was void; and
(3) in proceedings under the Nebraska ICWA for foster placement of, or termination of parental rights to, an Indian child, proof by a preponderance of the evidence is the standard for satisfying the court of active efforts to prevent the breakup of Indian family.
Reversed and remanded.

Wells Fargo Bank, N.A. v. Chukchansi Economic Development Authority
118 A.D.3d 550, 988 N.Y.S.2d 160
Slip Op. 04437
Supreme Court, Appellate Division, First Department, New York, June 17, 2014

*Synopsis: In a bank's action against the economic development authority of an Indian tribe, Indian tribes, and other defendants, the Supreme Court, New York County, Melvin L. Schweitzer, J., 2013 WL 6506825, dismissed counter claims and cross claims concerning the membership and authority of the economic development authority. The economic development authority and the Indian tribes appealed.

* Holding: The Supreme Court, Appellate Division, held that the Court lacked subject matter jurisdiction over the membership and authority of the economic development authority.
Affirmed.

In re I.P.
173 Cal.Rptr.3d 257
No. E060213
Court of Appeal, Fourth District, Division 2, California, June 17, 2014

*Synopsis: Children and Family Services (CFS) filed a dependency petition alleging that child, age four, came within the jurisdiction of the juvenile court. Indian tribe responded indicating that child was eligible for membership and that tribe was intervening. The Superior Court, San Bernardino County, No. J239345, Cheryl C. Kersey, J., found that child was adoptable and terminated parental rights, and also found, inter alia, that CFS had complied "with the noticing requirements" of the Indian Child Welfare Act (ICWA). Mother appealed.

* Holding: The Court of Appeal, Ramirez, P.J., held that mother failed to show a reasonable probability that compliance with the procedural requirements of tribal customary adoption (TCA) would have resulted in an outcome more favorable to her. Affirmed.

In re Abbigail A.
173 Cal.Rptr.3d 191
No. C074264
Court of Appeal, Third Dist. California, June 16, 2014

*Synopsis: County department of health and human services filed dependency petitions as to two children. The Superior Court, Sacramento County, Nos. JD232871 & JD232872, Paul L. Seave, J., directed counsel to make reasonable efforts to enroll the children and their father in a tribe which had notified the court that they were eligible for membership, concluded it was required to treat the eligible minors as Indian children under Indian Child Welfare Act (ICWA), but made jurisdictional findings and placed the children in the custody of their maternal grandmother.

* Holding: The Court of Appeal, Butz, J., held that court rules extending ICWA protections to children merely eligible for tribal membership are invalid.
Reversed with directions.

West v. Dep't of Licensing
331 P.3d 72
No. 71643?3?I.
Court of Appeals of Washington, Division 1, June 9, 2014.

*Synopsis: Records requester brought action against Department of Licensing, alleging that the Department had violated the Public Records Act by failing to reasonably search for, identify, and produce records related to motor vehicle fuel tax payments to?Indian?tribes. The Superior Court, Thurston County, James J. Dixon, J., entered summary judgment in favor of Department, and records requester appealed.

* Holding: The Court of Appeals, Cox, J., held that:
(1) records relating to amounts of tax payments refunded to tribes were exempt form disclosure;
(2) Department made a timely response to requests; and
(3) records requester was not entitled to reconsideration based on alleged newly-discovered evidence.
Affirmed.

First Citizens Bank & Trust Co. v. Harrison
326 P.3d 808
Nos. 43451-2-II, 43751-1-II.
Court of Appeals of Washington Div. 2, June 3, 2014

*Synopsis: Lender brought breach of contract action against borrowers for failure to pay promissory note based on a line of credit. The Superior Court, Pierce County, Stephanie A. Arend, J., granted summary judgment in favor of lender in the amount of $161,831.97, but ruled that borrower's personal bank account containing proceeds from the sale of her Indian trust land were exempt from garnishment. Lender appealed.

* Holding: The Court of Appeals, Maxa, J., held that:
(1) lender was judicially estopped from arguing on appeal that borrowers failed to prove the factual basis for their exemption, i.e., that the funds in the Native American borrower's bank accounts derived from leases of Indian trust land;
(2) the Superior Court had the jurisdiction to resolve the issue of whether statute that excluded proceeds from the sale of Indian trust land from liability for the payment of a debt that arose during the trust period continued to protect any such moneys that had been placed in a Native American's personal bank account;
(3) federal statute that provided that moneys from the lease or sale of Indian trust lands was not liable for certain debts provided protection against garnishment for the money in borrower's bank accounts that had accrued from the lease of borrower's Indian trust lands, regardless of whether the moneys accrued to an Individual Indian Money (IIM) account or directly to the Native American borrower; and
(4) lender was entitled to recover its attorney fees and costs incurred in responding to borrowers' appeal.
Affirmed.

May

State, in interest of E.B.
327 P.3d 594
No. 20140201-CA
Court of Appeals of Utah, May 22, 2014

*Synopsis: Parents sought review of order of Fourth District Juvenile Court, Provo Department, Kay A. Lindsay and Brent H. Bartholomew, JJ., granting their voluntary relinquishment of their parental rights.

* Holding: The Court of Appeals held that under the Indian Child Welfare Act (ICWA), the juvenile court retained subject matter jurisdiction to accept parents' voluntary relinquishment of their parental rights.
Affirmed.

In re Johnson
852 N.W.2d 224
No. 318715
Court of Appeals of Michigan, May 20, 2014

*Synopsis: Mother appealed from decision of the Kalamazoo Circuit Court, Family Division, Curtis J. Bell, J., terminating her parental rights to alleged American Indian child.

* Holding: The Court of Appeals, Murphy, C.J., held that:
(1) conditional reversal of trial court's order terminating mother's parental rights was appropriate because record contained no indication that notice was served under Indian Child Welfare Act (ICWA), and
(2) trial court did not clearly err when it determined that termination of mother's parental rights was in the minor child's best interests.
Reversed and remanded.

In re Interest of Shayla H. et al.
22 Neb.App. 1, 846 N.W.2d 668
No. A-13-643
Court of Appeals of Nebraska, May 20, 2014

*Synopsis: The Department of Health and Human Services (DHHS) initiated dependency proceedings concerning father's three children. The Juvenile Court, Lancaster County, Linda S. Porter, J., entered dispositional order ordering a change of family therapist, declined to return legal custody of the children to father, and made specific ordered related only to father. Father appealed.

* Holding: The Court of Appeals, Moore, J., held that:
(1) the Indian Child Welfare Act's (ICWA) active efforts standard, rather than the Nebraska Indian Child Welfare Act's (NICWA) reasonable efforts standard, applied to dependency proceeding, and
(2) the rehabilitation plan provision that precluded father from using any unapproved form of physical discipline and ensuring the children always had adult supervision was reasonable.
Affirmed in part, reversed in part, and remanded.

Cayuga Nation v. Jacobs
986 N.Y.S.2d 791
No. 24132
Supreme Court of New York, May 19, 2014

*Synopsis: Individual Cayuga Indians, a Cayuga Nation enterprise, and, purportedly, the Cayuga Nation itself brought action against other Cayuga Indians, alleging causes of action for trespass, conversion, tortious interference with prospective business relations, replevin, and ejectment. Plaintiffs sought preliminary and permanent injunctions preventing defendants from entering properties and defendants moved to dismiss.

* Holding: The Supreme Court, Dennis F. Bender, J., held that Supreme Court lacked subject matter jurisdiction over claims.

April

State v. Scott
849 N.W.2d 640
No. 26819
Supreme Court of South Dakota, Argued April 30, 2014. Decided June 25, 2014

*Synopsis: Defendant was convicted in the Circuit Court, Seventh Judicial Circuit, Pennington County, Mary Thorstenson, J., of aggravated assault. The Supreme Court remanded for trial court to perform the third step of the Batson analysis for purposes of ruling on defendant's challenge to State's peremptory strike of juror. On remand, the Circuit Court, Wally Eklund, J., performed the third step and found that State's peremptory strike was not based on purposeful racial discrimination. Defendant appealed.

* Holding: The Supreme Court, Zinter, J., held that:
(1) remand judge could consider documentary evidence regarding the criminal charge against the struck veniremember;
(2) a different trial judge could perform the third step of the Batson analysis given original trial judge's unavailability;
(3) remand judge's findings were subject to heightened scrutiny on appeal; and
(4) State's race-neutral reason for exercising peremptory strike on Native American juror was not pretext for racial discrimination.
Affirmed.

Billie v. Stier
141 So.3d 584
No. 3D13?3180.
District Court of Appeal of Florida, Third District, April 25, 2014. Rehearing Denied July 22, 2014.

*Synopsis: After unmarried mother who was member of Indian tribe filed custody petition in tribal court, father filed custody petition in circuit court. The Circuit Court, Miami?Dade County, entered order determining that it had jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Mother filed petition for writ of prohibition.

* Holding: The District Court of Appeal, Suarez, J., held that tribal court did not substantially comply with jurisdictional standards of the UCCJEA.
Writ denied.

Hawkins v. Attatayuk
322 P.3d 891
No. S-14812.
Supreme Court of Alaska, April 11, 2014

*Synopsis: Former wife brought trespass action against former husband. The Superior Court, Second Judicial District, Nome, Ben Esch, J., entered judgment in favor of former wife. Former husband appealed.

* Holding: The Supreme Court, Stowers, J., held that superior court lacked subject matter jurisdiction to adjudicate title to Alaska Native townsite property allegedly owned by former wife.
Reversed and remanded with directions.

Healy Lake Village v. Mt. McKinley Bank
322 P.3d 866
No. S?14987.
Supreme Court of Alaska, April 11, 2014

*Synopsis: Tribal members who claimed to constitute newly elected tribal council brought declaratory judgment action against bank to determine who was authorized to act on behalf of tribe and to access tribe's accounts. A second group of tribal members who claimed to represent the tribe based on a competing election was granted intervention to challenge the Superior Court's jurisdiction. The Superior Court, Fourth Judicial District, Fairbanks, Michael P. McConahy, J., dismissed for lack of jurisdiction, and the members who brought the initial action appealed.

* Holding: The Supreme Court, Fabe, C.J., held that:
(1) the Superior Court did not commit reversible error by failing to convert bank's motion to dismiss to a motion for summary judgment;
(2) any inquiry into the legitimacy of competing tribal elections was solely within tribe's retained inherent sovereignty; and
(3) Superior Court lacked subject matter jurisdiction over tribal member's declaratory judgment action against bank.
Affirmed.

Catawba Indian Nation v. State
407 S.C. 526, 756 S.E.2d 900
No. 27374.
Supreme Court of South Carolina, April 2, 2014

*Synopsis: Indian tribe brought declaratory judgment action against state to determine effect of Gambling Cruise Act on its gambling rights. The Circuit Court, Richland County, J. Ernest Kinard, Jr., J., granted state summary judgment. Tribe appealed.

* Holding: The Supreme Court, Beatty, J., held that:
(1) declaratory judgment action was not precluded by doctrine of collateral estoppel;
(2) action was not precluded by doctrine of res judicata; but
(3) Act did not authorize tribe to offer video poker on its reservation.
Affirmed in part and reversed in part.

March

In re J.S.
374 Mont. 329, 321 P.3d 103
No. DA 13?0539.
Supreme Court of Montana, March 25, 2014

*Synopsis: Department of Public Health and Human Services filed petition for legal guardianship, seeking to award guardianship of Indian child, who had been adjudicated a youth in need of care, to foster parents. The District Court, 20th Judicial District, Lake County, Deborah Kim Christopher, J., granted petition. Child's father appealed.

* Holding: The Supreme Court, Jim Rice, J., held that:
(1) state's failure to provide notice that was required by Indian Child Welfare Act (ICWA) to father and father's tribe at outset of proceedings did not warrant overturning guardianship order;
(2) ICWA's provision requiring state to make active efforts to provide remedial services and rehabilitative programs designed to prevent breakup of Indian family did not provide basis to overturn award of guardianship; and
(3) for purposes of ICWA's provision governing foster care placement and requiring expert testimony regarding continued custody, there was no custody to "continue."
Affirmed.

Center for Biological Diversity v. Dep't of Fish and Wildlife
169 Cal.Rptr.3d 413
B245131
Court of Appeal, Second District, Division 5, California., March 20, 2014

*Synopsis: Environmental group filed petition for mandamus relief under the California Environmental Quality Act (CEQA) regarding large scale real estate development project, seeking to challenge certification of the project's environmental impact report (EIR), conservation plan, streambed alteration agreement, and issuance of two incidental take permits. The Superior Court, Los Angeles County, No. BS131347, Ann I. J., granted the petition. Department of Fish and Wildlife and developer both appealed.

* Holding: The Court of Appeal, Turner, P.J., held that:
(1) evidence was sufficient to support finding in EIR that bridge construction project would not result in the mortality of the endangered stickleback fish
(2) mitigation measures designed to protect endangered stickleback fish during bridge construction, including live trapping and relocation of fish, did not constitute a "take" of an endangered species;
(3) Department did not violate the public trust violation when determining that bridge construction would not result in take of endangered stickleback fish;
(4) evidence was sufficient to support determination in EIR that area had low density of Native-American archaeological sites which were concentrated in river;
(5) EIR provided for appropriate mitigation for construction project's impact on Native-American cultural resources;
(6) evidence was sufficient to support EIR's finding that alternative was infeasible;
(7) evidence was sufficient to support EIR's conclusion that development project's impacts on endangered steelhead smolt, including through non-lethal copper discharge, would be less than significant; and
(8) evidence was sufficient to support EIR's conclusions regarding scientific strategies and mitigation efforts for endangered spineflower.
Reversed with directions.

State v. Kostick
755 S.E.2d 411
No. COA13?873.
Court of Appeals of North Carolina, March 18, 2014

*Synopsis: Defendant was convicted in the Superior Court, Swain County, James U. Downs, J., of driving while impaired (DWI). Defendant appealed.

* Holding: The Court of Appeals, Bryant, J., held that:
(1) defendant's failure to include trial transcript did not preclude review of his appeal;
(2) State Highway Patrol officer had authority to arrest defendant on a road within Indian reservation;
(3) trial court had jurisdiction to preside over prosecution of defendant, a non-Indian, for an offense committed on Indian reservation;
(4) stop of defendant at traffic checkpoint was reasonable; and
(5) defendant failed to establish violation of his right to timely pretrial release.
Affirmed.

Molly O. v. State, Dep't of Health and Social Services, Office of Children's Services
320 P.3d 303
No. S?15076.
Supreme Court of Alaska, March 14, 2014

*Synopsis: Department of Health and Social Services, Office of Children's Services (OCS), took emergency custody of three children and petitioned to terminate mother's parental rights. The Superior Court, Fourth Judicial District, Fairbanks, Douglas Blankenship, J., denied mother's motion to join grandmother, and grandmother's motion to intervene as the children's Indian custodian. Grandmother appealed.

* Holding: The Supreme Court, Stowers, J., held that:
(1) actions of mother and father acted to terminate grandmother's Indian custodianship of the children;
(2) once parents informed the OCS that they did not want children placed with grandparents, OCS had no duty to provide grandmother with notice under the Indian Child Welfare Act of the Pendency of a child in need of aid (CINA) proceeding;
(3) any error by the OCS in failing to inquire into grandmother's Indian custodian status, or to provide grandmother with notice of her rights under the Indian Child Welfare Act was harmless; and
(4) mother's act of revoking maternal grandparent's status as Indian custodian revoked, at least as far as the relationship between the OCS and grandmother was concerned, any indicia of custody that grandmother may have acquired through powers of attorney.
Affirmed.

City of Duluth v. Fond Du Lac Band of Lake Superior Chippewa
Briefs and Material from Turtle Talk
843 N.W.2d 577
No. A12?1324.
Supreme Court of Minnesota, March 12, 2014

*Synopsis: City brought breach of contract action against band of Native Americans arising out of agreements establishing a joint venture to operate gaming activities in city. The District Court, St. Louis County, dismissed action. City appealed. The Court of Appeals, 2013 WL 1500884, reversed and remanded. Band sought review.

* Holding: After grant of review, the Supreme Court, Page, J., held that:
(1) particular contractual agreement between city and band did not waive band's sovereign immunity, and
(2) state court did not have jurisdiction to determine whether earlier agreement's waiver of immunity provision remained applicable following enactment of later agreement.
Reversed and reinstated.

February

In re R.L.-P., A.L.-P., R.L.-P., and L.L.-P
842 N.W.2d 889
Nos. 20130382, 20130383, 20130384, 20130385, 20130386, 20130388.
Supreme Court of North Dakota., Feb. 13, 2014

*Synopsis: Mother's and father's parental rights were terminated by District Court of Burleigh County, South Central Judicial District, Sonna M. Anderson, J., and they both appealed.

* Holding: The Supreme Court, Sandstrom, J., held that:
(1) judicial referee's fact findings were subject to Supreme Court review for clear error;
(2) children remained deprived due to mother's actions, at time of hearing on petition to terminate parental rights;
(3) children had been in foster care for more than 450 out of previous 660 nights, as grounds for termination of mother's parental rights;
(4) social services made reasonable efforts to reunify children with both mother and father;
(5) admission of reports of suspected child abuse or neglect was not abuse of discretion; and
(6) tribe director's determination that Indian Child Welfare Act (ICWA) did not apply was binding on trial court.
Affirmed.

Loya v. Gutierrez
Update from 2013 case.
319 P.3d 656
No. 34,447.
Court of Appeals of New Mexico, Feb. 7, 2014

*Synopsis: Arrestee brought ? 1983 action against tribal police officer, alleging false arrest, malicious prosecution, and excessive force. Officer filed third-party declaratory judgment action against county, alleging county was required to defend and indemnify him. The District Court, Santa Fe County, Barbara J. Vigil, D.J., granted summary judgment for county. Officer appealed.

* Holding: The Court of Appeals, Vanzi, J., held that:
(1) officer was not law enforcement officer under the Tort claims Act, and
(2) officer was not public employee.
Affirmed.

Rayellen Resources, Inc. v. New Mexico Cultural Properties Review Committee
319 P.3d 639
No. 33,497.
Supreme Court of New Mexico, Feb. 6, 2014

*Synopsis: Objectors sought review of decision of Cultural Properties Review Committee to permanently list approximately 400,000 acres of public land on mountain as a registered cultural property under Cultural Properties Act. The Fifth Judicial District Court, William G.W. Shoobridge, D.J., affirmed in part and reversed in part. Proponents petitioned for certiorari and objectors cross-petitioned for certiorari. The Court of Appeals granted petitions and certified case.

* Holding: The Supreme Court, Daniels, J., held that:
(1) notice about public comment period satisfied procedural due process;
(2) the listing satisfied Act requirements on maintenance, inspection, and integrity;
(3) land grant common lands did not constitute "state land" subject to regulation under Act;
(4) substantial evidence supported Committee's findings on historic eligibility;
(5) Committee had discretion to fine-tune boundaries during course of Committee's investigation of request for a permanent listing;
(6) Committee's apparent clerical error in calculating total number of acres did not render the listing arbitrary and capricious; and
(7) the listing did not violate Establishment Clause.
Affirmed in part, reversed in part, and remanded.

January

State v. Armitage
319 P.3d 1044
Nos. SCWC?29794, SCWC?29795, SCWC?29796.
Supreme Court of Hawai‘i, Jan. 28, 2014

*Synopsis: Three defendants, all native Hawaiians, were each charged by complaint with entering the Kaho'olawe island reserve without authorization, a petty misdemeanor. The cases were consolidated. The parties entered into a stipulation as to evidence, and the District Court, Second Circuit, Wailuku Division, found defendants guilty as charged. Defendants appealed. The Intermediate Court of Appeals, 2013 WL 1829663, affirmed. Defendants filed an application for writ of certiorari, which the Supreme Court accepted.

* Holding: The Supreme Court, Acoba, J., held that:
(1) complaints did not allege the requisite state of mind, requiring dismissal without prejudice;
(2) statute of limitations did not bar the prosecution from refiling complaints against defendants;
(3) evidence was sufficient to support the convictions;
(4) native Hawaiian privilege did not bar the convictions;
(5) defendants had standing to challenge the constitutionality of the administrative rule prohibiting a person from entering the reserve without authorization;
(6) expressed purpose of defendants in entering the reserve involved conduct that did not constitute speech protected under the First Amendment; and
(7) defendants did not show that the exercise of their religion was substantially burdened by the prohibition rule or a related procedure rule.
Vacated and remanded.

People v. Miami Nation Enterprises
166 Cal.Rptr.3d 800
B242644.
Court of Appeal, Second District, Division 7, California, Jan. 21, 2014

*Synopsis: The People brought action against five payday lenders for injunctive relief, restitution, and civil penalties for violations of the of the Deferred Deposit Transaction Law (DDTL). Two tribal entities specially appeared and moved to quash service of summons. The Superior Court, Los Angeles County, No. BC373536, Joseph R. Kalin, J., denied motion. Companies filed petition for writ of mandate. The Court of Appeal denied petition. Companies filed petition for review. The Supreme Court granted petition and transferred the matter to the Court of Appeal. The Court of Appeal granted petition in part and denied it in part, 169 Cal.App.4th 81, 86 Cal.Rptr.3d 572. The Superior Court, Yvette M. Palazuelos, J., quashed service of summons and dismissed the case for lack of subject matter jurisdiction. The People appealed.

* Holding: The Court of Appeal, Perluss, P.J., held that:
(1) tribal economic development authority was protected by tribal sovereign immunity, and
(2) tribal corporation was protected by tribal sovereign immunity.
Affirmed.

MM & A Productions, LLC v. Yavapai-Apache Nation
2014 WL 185396
No. 2 CA?CV 2013?0051.
Court of Appeals of Arizona, Division 2, Jan. 16, 2014
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Event production company filed complaint against indian tribe and tribe's casino, alleging breach of exclusive entertainment and production agreement and associated claims. The Superior Court, Pima County, No. C20085949,Paul E. Tang and Carmine Cornelio, JJ., dismissed complaint for lack of subject matter jurisdiction. Company appealed.

* Holding: The Court of Appeals, Kelly, P.J., held that:
(1) alleged apparent authority to waive tribe's sovereign immunity by signing agreement did not constitute valid waiver;
(2) trial court did not abuse its discretion in concluding that further discovery was unnecessary to determine that agreement did not waive immunity; and
(3) waiver of sovereign immunity signed prior to execution of agreement was insufficient to waive immunity as to agreement.
Affirmed.

In re Jayden D. and Dayten J.
842 N.W.2d 199
No. A?13?193
Court of Appeals of Nebraska, Jan. 14, 2014

*Synopsis: State filed petition for adjudication of mother's children as juveniles who lacked proper parental care by reason of the fault or habits of mother. Following adjudication, State filed motion to terminate mother's parental rights as to one child. Following hearing, the motion was dismissed. State refiled motion to terminate parental rights. Mother filed motion to transfer proceedings to tribal court. The Separate Juvenile Court, Lancaster County, Reggie L. Ryder, J., denied motion to transfer, and mother appealed.

* Holding: The Court of Appeals, Moore, J., held that:
(1) state court proceedings on motion to terminate parental rights were not in advanced stage, as grounds for determination that there was good cause for denying motion to transfer proceedings to tribal court;
(2) State did not show good cause for denying motion to transfer under theory of forum non conveniens, based on juvenile court's continuing jurisdiction over child's sibling.
Reversed and remanded.

Narragansett Indian Tribe v. State of Rhode Island and UTGR, INC.
81 A.3d 1106
No. 201-323 Appeal.
Supreme Court of Rhode Island, Jan. 10, 2014

*Synopsis: Narragansett Indian Tribe filed complaint seeking declaratory judgment with respect to constitutionality of legislation authorizing expansion of gambling at state-operated casinos. On cross-motions for summary judgment, the Superior Court, Washington County, Melanie Wilk Thunberg, J., found that tribe had standing but granted state's and intervenor casinos' motion for summary judgment. State appealed from standing determination.

* Holding: The Supreme Court, Indeglia, J., held that Tribe alleged injury in fact sufficient to support finding that it had standing to challenge legislation at issue.
Affirmed.

In the Matter of T.S; K.S.; D.S.; K.S. and L.S., Alleged Deprived Children
315 P.3d 1030
No. 111344.
Court of Civil Appeals of Oklahoma, Division No. 3, Oct. 31, 2013,
As Corrected Jan. 8, 2014

*Synopsis: In child protection proceedings, the District Court, Delaware County, Barry V. Denney, J., adjudicated five children as deprived. Father appealed.

* Holding: The Court of Civil Appeals, Wm. C. Hetherington, Jr., P.J., held that:
(1) Indian children's emergency placement in traditional foster home after they were removed under emergency order did not constitute "foster care placement" under Indian Child Welfare Act (ICWA);
(2) as matter of first impression, award of custody to children's non-Indian mothers following show cause hearing in dependent child proceeding constituted "foster care placement" triggering protections of ICWA;
(3) state's actions in initiating equivalent of foster care placement triggered state's obligation under ICWA to prove active efforts to reunite Indian father with children;
(4) as matter of first impression, state's burden of proof with respect to active efforts was clear and convincing evidence; and
(5) state established by clear and convincing evidence that it made active efforts to reunite Indian children with Indian father.
Affirmed.

In re C.B.
316 P.3d 177
No. DA 13?0381.
Supreme Court of Montana, Jan. 7, 2014

*Synopsis: Proceeding was brought to terminate mother's parental rights to Indian child pursuant to Indian Child Welfare Act (ICWA). The District Court, Eighth Judicial District, Cascade County, Kenneth R. Neill, J., terminated mother's parental rights. Mother appealed.

* Holding: The Supreme Court, Michael E. Wheat, J., held that mother's drug abuse was not likely to change within reasonable time, and thus termination of parental rights was warranted.
Affirmed.

Department of Health and Human Services v. J.G.
2014 WL 25206
Nos. 0400574JV4; 0900378M; A153864.
Court of Appeals of Oregon, Januiary 2, 2014

*Synopsis: Department of Human Services moved to appoint Indian child's current foster parent as child's legal guardian. The Circuit Court, Klamath County, Cameron F. Wogan, J., granted motion. Mother appealed.

*Holding: The Court of Appeals, Nakamoto, J., held that:
(1) as a matter of first impression, section of the Indian Child Welfare Act (ICWA) allowing any court of competent jurisdiction to invalidate foster care actions that contravened ICWA was in conflict with state appellate rule requiring preservation of claim of error to raise error on appeal, and therefore ICWA section preempted state rule;
(2) durable guardianship established by trial court was a foster care placement as could require court to make finding under the ICWA as to whether active efforts had been made to prevent breakup of Indian family; but
(3) in instant action, court was not required to make an active efforts finding in guardianship judgment.
Affirmed.

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