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Indian Law Bulletins  |  State Courts  |  2013

Last updated: May 2, 2013

Next update should be ready by: May 17, 2013

Please alert us to any cases we may have missed from the state court

Newest Cases:

Stephens v. Arkansas Dep't of Human Services
2013 WL 1682462
No. CA 12–1096.
Court of Appeals of Arkansas, April 17, 2013

*Synopsis: Department of Human Services (DHS) petitioned to terminate parental rights of mother. The Circuit Court, Sebastian County, Annie Powell Hendricks, J., granted petition. Mother appealed.

* Holding: The Court of Appeals, David M. Glover, J., held that evidence was sufficient to support determination that child would likely face serious physical or emotional damage if returned to mother, even if Indian Child Welfare Act (ICWA) standard applied.
Affirmed.

Older 2013 Cases:

April

City of Duluth v. Fond Du Lac Band of Lake Superior Chippewa
2013 WL 1500884
A12–1324.
Court of Appeals of Minnesota, April 15, 2013

*Synopsis: (from the opinion) "Appellant, the City of Duluth (the city), challenges the dismissal of its breach-of-contract claim against respondent, the Fond du Lac Band of Lake Superior Chippewa (the band), arguing that the district court erred by determining that (1) it did not have jurisdiction over the claim because the band had only waived immunity with respect to claims asserted in federal court and (2) the city's claims were not ripe because the contract at issue had not yet been breached. . . . This appeal arises out of the legally complex relationship between the city and the band in relation to the Fond du Luth Casino in downtown Duluth."

* Holding: (not yet available)

In re A.M.
2013 WL 1482620
C070782.
Court of Appeal, Third District, California, April 11, 2013

*Synopsis: (from the opinion) "M.W., mother of the minor, and the Pit River Tribe (Tribe) appeal from orders terminating parental rights after reversal of the previous termination orders and remand in case No. C067143 for a new hearing on mother's petition for modification. (Welf. & Inst.Code, §§ 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Mother argues the court erred in denying her petition for modification (§ 388) and failed to apply the Indian child exception to termination of parental rights. The Tribe raises various issues related to tribal customary adoption (TCA) and the Yolo County Department of Employment and Social Services' (Department) inaction with respect to TCA. "

* Holding: (not yet available)

Schultz v. Pojoaque Tribal Police Dep't
2013 WL 1482949
No. 33,372.
Supreme Court of New Mexico, April 11, 2013

*Synopsis: Claimant, the widow of tribal police officer, appealed from order of the Workers' Compensation Administration (WCA), Helen L. Stirling, Workers' Compensation Judge, denying claims for benefits in connection with officer's death. The Court of Appeals dismissed the appeal as untimely. On certiorari review, the Supreme Court, 148 N.M. 692, 242 P.3d 259,Maes, J., remanded for consideration of merits of appeal. On remand, the Court of Appeals, 269 P.3d 14,Fry, J., affirmed WCA's order. The Supreme Court granted certiorari.

* Holding: The Supreme Court, Bosson, J., held that:
(1) if an employee entitled to workers' compensation benefits fails to file a complaint or a claim within the one-year limitation period because the conduct of the employer or insurer reasonably led the employee to believe compensation would be paid, then the employee has a reasonable time thereafter within which to file; overruling Stasey v. Stasey, 77 N.M. 436, 423 P.2d 869;Lucero v. White Auto Stores, Inc., 60 N.M. 266, 291 P.2d 308;
(2) tribal police department reasonably led claimant to believe that workers' compensation benefits would be paid in connection with officer's death;
(3) claimant's filing of pro se complaint 45 days after expiration of limitation period was within a reasonable time; and
(4) claimant's filing of second complaint approximately ten months after expiration of one-year limitations period was within a reasonable time, even if second complaint was considered as completely independent of first complaint.
Reversed and remanded to Court of Appeals.

Western Montana Water Users Ass'n, LLC. v. Mission Irrigation District
2013 WL 1428631
No. DA 13–0154.
Supreme Court of Montana, April 9, 2013

*Synopsis: Water users brought action against irrigation districts seeking to enjoin irrigation districts from entering into a water use agreement with Indian Tribes without submitting the final agreement to a vote of irrigators and receiving court permission. The District Court of the Twentieth Judicial District, County of Lake, C.B. McNeil, J., issued a writ of mandate and injunction enjoining irrigation districts from entering into the water use agreement. Irrigation districts appealed.

* Holding: The Supreme Court, Brian Morris, J., held that:
(1) district court improperly issued a mandate and injunction on the basis that the terms of the water use agreement exceeded the districts' authority, as none of the parties made any arguments regarding the issue of the districts' authority, and
(2) statutes did not require the districts to obtain member and court approval before entering into the water use agreement with Indian Tribes.
Reversed.

March

Rodewald v. Kansas Department of Revenue
2013 WL 1173932
No. 105,098.
Supreme Court of Kansas, March 22, 2013

*Synopsis: Driver, who was 18 years old and a Native American, petitioned for judicial review of suspension of his driver's license following his arrest for driving under the influence (DUI). The District Court, Jackson County, Micheal A. Ireland, J., entered summary judgment in favor of the Department of Revenue (DOR). Driver appealed.

* Holding: The Supreme Court, Johnson, J., held that:
(1) driving under the influence (DUI) and implied consent statutes did not include roadways in Native American reservation over which tribal police assumed jurisdiction to enforce tribal law, and (2) DOR's jurisdiction did not extend to roadways within Native American reservation.
Reversed and remanded with directions.

In re Morris
2013 WL 1339203
Docket No. 312248.
Court of Appeals of Michigan, March 21, 2013

*Synopsis: (from the opinion) "Respondent appeals by right the trial court's order terminating his parental rights to the minor child. Because the trial court correctly determined that proper notice was given as required by the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and that the ICWA does not apply to this child-custody proceeding, we affirm."

* Holding: (not yet available)

In re Yakima River Drainage Basin
2013 WL 865457
No. 86211–7.
Supreme Court of Washington, En Banc, March 7, 2013

*Synopsis: Department of Ecology (DOE) filed an action seeking a general adjudication of the surface water in the Yakima River Basin. The Superior Court, Yakima County, F. James Gavin, J., entered order determining the parties' water rights to creek that was part of basin. Parties appealed. The Court of Appeals transferred appeal to the Supreme Court.

* Holding: The Supreme Court, Stephens, J., held that:
(1) decision in action brought by United States as trustee for Indian tribe in United States v. Ahtanum Irrigation District adjudicated the nontribal water rights of northside users;
(2) federal court case did not preclusively determine the reservation's practicably irrigable acreage;:
(3) trial court erred in denying the Indian reservation a right to store water from creek bordering reservation outside the irrigation season;:
(4) northside users had a right to excess water from creek;:
(5) substantial evidence supported trial court's limitation on company's excess water right in creek to a 45–day period;:
(6) rights in excess water from creek could not be exercised by parties that were not confirmed a right in federal litigation;:
(7) future development exception did not apply so as to give property owners water rights to creek after rights were relinquished by statute; and:
(8) remand was necessary for trial court to correct clerical error in judgment regarding water rights in creek so as to include religious institution's parcel of land.:
Affirmed in part, reversed in part, and remanded.

February

In re Guardianship of LNP
2013 WL 617093
No. S–12–0155.
Supreme Court of Wyoming, Feb. 20, 2013

*Synopsis: After obtaining temporary guardianship of child, maternal grandparents filed petition to convert temporary guardianship to plenary guardianship. Mother filed motion to terminate temporary guardianship. Following hearing, the District Court, Laramie County, Michael Davis, J., granted petition, and mother appealed.

* Holding: The Supreme Court, Burke, J., held that:
(1) trial court was required under Indian Child Welfare Act (ICWA) to provide notice of petition to tribe;
(2) error in conducting hearing on petition without notice of proceedings to tribe was harmless;
(3) grandparents' expert's lack of expertise or experience in tribal customs did not disqualify her from testifying on issue whether return of child to mother was likely to result in serious emotional or physical damage to child;
(4) evidence supported trial court's determination that returning child to mother was likely to cause serious physical or emotional damage to child; and
(5) order granting petition for plenary guardianship was not reversible error based on mother's claim that active efforts were not made to provide rehabilitation and remedial services.
Affirmed.

In re D.L and K.L.
2013 WL 1401899
No. 110278.
Court of Civil Appeals of Oklahoma, Division No. 3, Feb. 15, 2013

*Synopsis: Cousin filed a petition to adopt children, and then foster parents filed a petition to adopt Indian children. The District Court, Latimer County, William D. Welch, J., denied foster parents' petition and ordered transitioning of the children to cousin's home. Foster parents appealed.

* Holding: The Court of Civil Appeals, Bay Mitchell, J., held that evidence failed to establish good cause for deviating from the Indian Child Welfare Act's (ICWA) preference for adoptive placement of Indian children with extended family.
Affirmed.

Williams v. Ketchikan Gateway Borough
295 P.3d 374
No. S–14513.
Supreme Court of Alaska, Feb. 15, 2013

*Synopsis: Taxpayer, who received grant to rebuild his house from the Bureau of Indian Affairs (BIA) Housing Improvement Program (HIP) and subsequently executed deed of trust securing federal government's right to repayment under grant with property, appealed decision of the Superior Court, First Judicial District, Ketchikan, Trevor N. Stephens, J., affirming borough's ruling that house was not exempt from borough property taxation.

* Holding: The Supreme Court, Fabe, C.J., held that real property and improvements were not exempt from borough taxation.
Affirmed.

Cates v. Chiang
2013 WL 453597
D060570
Court of Appeal, Fourth District, Division 1, California, Feb. 7, 2013

*Synopsis: Former agent of California Division of Gambling Control brought taxpayer's action for injunctive and declaratory relief against California Gambling Control Commission and the State Controller, seeking to compel defendants to discharge their statutory duty to collect money derived from gambling belonging to the State from various Indian tribes. The Superior Court, San Diego County, No. GIC821775, Patricia Y. Cowett, J., granted summary judgment in favor of defendants. Former agent appealed. The Court of Appeal, 154 Cal.App.4th 1302, 65 Cal.Rptr.3d 513, reversed and remanded. On remand, former agent dismissed her substantive causes of action, and parties stipulated that court would decide the matter of attorney fees. After a bifurcated proceeding, the Superior Court, David B. Oberholtzer, J., concluded that former agent was entitled to attorney fees from both defendants, and the Superior Court, William S. Dato, J., awarded $2,011,844 in attorney fees. Defendants appealed.

* Holding: The Court of Appeal, Haller, Acting P.J., held that:
(1) sufficient evidence demonstrated that former agent's lawsuit caused the Commission to change its behavior and provide the primary relief sought, so as to support award of attorney fees under catalyst theory for vindicating a public interest;
(2) insufficient evidence demonstrated that former agent's lawsuit caused the Controller to change its behavior and provide the primary relief sought;
(3) trial court had discretion to apply futility exception to prelitigation notice requirement for recovery of attorney fees under catalyst theory;
(4) when calculating lodestar amount of attorney fees, trial court acted within its discretion in reducing the reconstructed hours for two of former agent's attorneys by 15% in light of evidentiary problems with the documentation as to those two attorneys;
(5) contingent risk factor warranted application of positive multiplier to lodestar amount with respect to attorney fees incurred by former agent in litigating merits of lawsuit;
(6) contingent risk factor warranted application of positive multiplier to lodestar amount with respect to attorney fees incurred by former agent in litigating her entitlement to attorney fees; and
(7) contingent risk factor did not warrant application of positive multiplier to lodestar amount with respect to attorney fees incurred by former agent in litigating amount of attorney fees.
Affirmed in part, reversed in part, and remanded with directions.

Northern Cheyenne Tribe v. Roman Catholic Church
2013 WL 433180
No. DA 12–0010.
Supreme Court of Montana, Feb. 5, 2013
Rehearing Denied March 12, 2013.

*Synopsis: Indian tribe brought action against Catholic school located on reservation and against Catholic diocese, alleging numerous claims, including unjust enrichment, and seeking to impose constructive trust on funds raised by school using direct mail containing images of poverty among tribe members. The District Court, Yellowstone County, Susan P. Watters, Presiding Judge, entered summary judgment in favor of school and diocese, and tribe appealed.

* Holding: The Supreme Court, Brian Morris, J., held that:
(1) tribe was not required to prove that school had committed a wrongful act in order to support unjust enrichment claim, and
(2) trial court, in determining running of statute of limitations, was required to determine when tribe received notice that school had asserted an adverse interest as to funds.
Affirmed in part, reversed in part, and remanded.

January

Beaulieu v. Minnesota Dep't of Human Services
2013 WL 331554
No. A10–1350.
Supreme Court of Minnesota, Jan. 30, 2013, Rehearing Denied March 15, 2013.

*Synopsis: Sex offender, indeterminately committed as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP), filed petition for writ of habeas corpus, alleging that his appellate counsel had provided him with ineffective assistance by failing to file a timely notice of appeal from commitment order. The District Court, Carlton County, Dale Albert Wolf, J., summarily dismissed petition. Offender appealed. The Court of Appeals, 798 N.W.2d 542, affirmed. Offender filed petition for further review.

* Holding: The Supreme Court, Anderson, G. Barry, J., held that:
(1) district court had subject matter jurisdiction to civilly commit offender, an enrolled member of the Leech Lake Band of Ojibwe;
(2) doctrines of res judicata and collateral estoppel did not preclude State from presenting at civil commitment trial evidence of conduct alleged in earlier criminal cases that ended in acquittals; and
(3) offender failed to preserve for review claim that his right to trial by jury was violated.
Affirmed.

Seminole Tribe of Florida v. Hendry County
106 So.3d 19
No. 2D12–1657.
District Court of Appeal of Florida, Second District, Jan. 23, 2013

*Synopsis: Indian tribe filed petition for writ of certiorari, seeking to quash county ordinance that rezoned land from general agriculture to planned unit development (PUD) for purpose of constructing natural gas power plant and solar energy farm. The Circuit Court, Twentieth Judicial Circuit, Hendry County, denied petition. Tribe sought second-tier certiorari review.

* Holding: The District Court of Appeal, Khouzam, J., held that:
(1) statute providing exclusive methods for party to challenge consistency of development order with comprehensive plan precluded tribe from raising in certiorari petition its claim that ordinance was inconsistent with comprehensive plan;
(2) Circuit Court afforded procedural due process and applied correct law as to issues of compatibility of ordinance's approved uses with adjacent Indian reservation;
(3) limited scope of second-tier certiorari review precluded District Court of Appeal from deciding tribe's claim that Circuit Court improperly reweighed the evidence regarding compatible uses;
(4) local development code (LDC) did not require that water needs for proposed PUD be entirely self-contained; and
(5) Circuit Court afforded procedural due process and applied correct law as to Indian tribe's claim that ordinance violated LDC's termination section.
Petition denied.

McGuire v. Aberle
2013 WL 175031
No. 26205.
Supreme Court of South Dakota, Jan. 16, 2013

*Synopsis: Non-Native American owners of property located within exterior boundaries of Cheyenne River Sioux Indian Reservation brought action seeking sale of land. Owners who held 2/16 interest in property, one of whom was member of tribe, counterclaimed for partition, and moved to dismiss for lack of subject matter jurisdiction. The Fourth Judicial Circuit Court, Dewey County, John W. Bastian, J., denied motion to dismiss, and following trial, ordered sale of land. Native American owner appealed.

* Holding: The Supreme Court, Zinter, J., held that tribal court did not have exclusive jurisdiction over patented fee land located within exterior boundary of Cheyenne River Sioux Indian Reservation if land was alienated under allotment acts.
Remanded.

Outsource Servs. Mgmt., LLC v. Nooksack Bus. Corp.
2013 WL 149876
No. 67050–6–I.
Court of Appeals of Washington, Division 1, Jan. 14, 2013

*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 appealed.

* Holding: The Court of Appeals, Cox, J., held that:
(1) superior court had subject matter jurisdiction to decide case, where tribal corporation expressly waived its sovereign immunity;
(2) waiver was sufficiently broad to include a waiver of tribal corporation's sovereignty as well as the sovereign protection of its property; and
(3) loan agreements were not "management contracts" required to be submitted to the Chairman of the Indian Gaming Regulatory Commission for approval under the Indian Gaming Regulatory Act (IGRA).
Affirmed.

Thea G. v. Alaska, Department of Health, Social Services, Office of Children's Services
2013 WL 120914
No. S–14663.
Court of Appeals of Oregon, Jan. 9, 2013

*Synopsis: Mother, who was member of Indian tribe and whose children were eligible for membership, appealed from order of the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, J., terminating her parental rights to children.

* Holding: The Supreme Court, Fabe, C.J., held that:
(1) Office of Children's Services (OCS) provided mother with active efforts to prevent breakup of her family;
(2) sufficient evidence supported superior court's finding that children would suffer harm if returned to mother's custody; and
(3) termination of parental rights was in best interests of children.
Affirmed. Carpeneti, J., filed dissenting opinion.