Subjects: Parent and child (Law); Trials (Custody of children) -- Florida; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: Mother sought review of a final judgment of the Circuit Court, Pasco County, Linda H. Babb, J., that terminated mother's parental rights to her children.
*Holding:
The District
Court of Appeal, Casanueva, J., held that:
(1) provisions of federal Indian Child Welfare Act (ICWA) were not adequately
invoked in termination of parental rights proceeding;
(2) issue of applicability of ICWA to termination of parental rights proceeding
was not preserved for appellate review; and
(3) Department of Children and Family Services (DCFS), at initiation of proceedings,
or trial court, when it first is involved, should inquire of parents or relatives
to determine applicability of ICWA.
Affirmed.
Subjects: Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana -- Members; Indian business enterprises -- On Indian reservations -- Puyallup Tribe of the Puyallup Reservation, Washington; Tobacco -- Taxation; Excise taxes -- Washington (State).
*Synopsis: (from the opinion) Alex Bercier appeals the trial court's dismissal of his declaratory judgment action. He argues he should be exempt from all Washington excise taxes and regulations because, as a member of the Fort Peck Indian Tribe who resides and sells tobacco products on the Puyallup Indian reservation, he is an Indian doing business on Indian trust land, entitled to exemptions under RCW 82.24.260, 82.24 .900, and 82.26.040. Holding that Bercier is not entitled to a tax exemption because he is not enrolled in the Puyallup Tribe on whose land he is doing business, we affirm.
*Holding:
The Court
of Appeals, Hunt, J., held that:
(1) plaintiff, as a nonmember of tribe on whose land he was operating, did
not qualify for tobacco tax exemption, and
(2) claim for declaratory judgment was subject to dismissal for failure to
meet declaratory relief requirements.
Subjects: Workers' compensation; Miccosukee Tribe of Indians of Florida; Jurisdiction -- Florida; Florida. Dept. of Labor and Employment Security; Sovereign immunity -- Miccosukee Tribe of Indians of Florida; Miccosukee Resort and Gaming Convention Center (Fla).
*Synopsis: (from the opinion) The Miccosukee Tribe of Indians (Tribe) seeks (1) a writ of certiorari to review a non-final discovery order in this workers' compensation action requiring a tribal official to appear for deposition; and (2) a writ of prohibition barring any further proceedings by the Florida Department of Labor, Division of Administrative Hearings, and the Judge of Compensation Claims (JCC) in this matter. We find that the JCC lacks subject matter jurisdiction, and therefore, we grant both a writ of certiorari quashing the discovery order and a writ of prohibition barring further proceedings.
*Holding: The District Court of Appeal, First District, Wolf, C.J., held that any purchase of workers' compensation policy was not express waiver of sovereign immunity, and thus JCC lacked jurisdiction to hear claim.
Subjects: Parent and child (Law); Trials (Custody of children) -- Michigan; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Child abuse.
*Synopsis: (from the opinion) Respondent appeals as of right from the trial court order terminating her parental rights to the minor child under MCL 712A.19b(3)(b)(i), (g), (j) and (k).1 We affirm.
*Holding: not yet available
Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis:Department of Health and Social Services petitioned for termination of parental rights to Indian child. The Superior Court, Third Judicial District, Anchorage, Sen K. Tan, J., terminated father's rights.
*Holding:The
Supreme Court, Fabe , J., held that termination of parental rights
was warranted.
Affirmed.
Subjects: Zoning law -- Massachusetts; Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts; Wampanoag Aquinnah Shellfish Hatchery Corporation; Zoning; Shellfish trade; Sovereign immunity -- Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts.
*Synopsis: Building inspector brought action against Indian tribe, seeking to enjoin tribe from constructing a shed and pier on tribal land in violation of zoning ordinance, and trust, which held property adjacent to tribal land, and community association intervened. The Superior Court Department, Dukes County, Richard F. Connon, J., granted tribe summary judgment. Building inspector applied for direct appellate review.
*Holding: Upon grant of application, the Supreme Judicial Court, Greaney, J., held that tribe had expressly waived its sovereign immunity with respect to municipal zoning enforcement. Vacated and remanded.
Related News Stories: Wampanoags plan appeal of state limit on sovereignty, (Indian Country Today) 12/23/04. Massachusetts High Court Rules Wampanoags Waived Sovereignty (Martha's Vineyard Gazette) 12/10/04
Subjects: Parent and child (Law); Trials (Custody of children) -- Oklahoma; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Adoption.
*Synopsis: Non-Indian mother sought termination of parental rights to Indian child and order of eligibility for adoption without Indian father's consent. The District Court, Cleveland County, Barbara Swinton, J., determined that the "existing Indian family exception" controlled the Indian child custody proceeding and the child was eligible for adoption without the consent of the father. The father appealed. The Court of Civil Appeals affirmed. Certiorari was Granted.
*Holding:
The Supreme
Court, Kauger, J. held that:
(1) the "existing Indian family exception" to application of Indian
Child Welfare Act, if the proceeding does not involve the dissolution of
an Indian family or the removal of custody from the Indian parent, is no
longer viable, overruling In the Matter of S.C., 833 P.2d 1249; In the Matter
of Adoption of Baby Boy D, 742 P.2d 1059; In the Matter of Adoption of D.M.J.,
741 P.2d 1386, and
(2) applying state and federal Indian Child Welfare Acts was constitutional.
Court of Civil Appeals vacated; trial court reversed; cause remanded.
Subjects: Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); D. J. Hosts, Inc. (Wis.); Commercial real estate -- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); Stocks -- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); Corporate debt; Sovereign immunity -- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); McNally CPA's & Consultants; Parties to actions.
*Synopsis: Accounting firm brought action for money owed against corporation after Indian tribe became corporation's sole shareholder. The Circuit Court for Dane County, Stuart A. Schwartz, J., dismissed action, and firm appealed.
*Holding:
The Court
of Appeals, Lundsten, J., held that:
(1) tribal immunity was not conferred on existing for-profit corporation when
tribe purchased all of corporation's shares, and
(2) tribe was not a necessary party.
Reversed and remanded with directions.
Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: (from the opinion) This Indian Child Welfare Act parental termination case requires us to decide whether, as appellants contend, the superior court erred in finding that the state made active efforts to prevent the breakup of the Indian family and that termination was in the child's best interests. Because we conclude that the superior court did not clearly err, we affirm.
*Holding: not available
Subjects: Citizens for Safety & Environment; Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Washington (State). Dept. of Transportation; Access rights -- Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Real property -- Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Environmental impact statements; Traffic estimation.
*Synopsis: (from the opinion) Citizens for Safety and Environment (Citizens) seeks to invalidate a permit issued by the Washington State Department of Transportation (Department) to the Muckleshoot Indian Tribe. The permit allows the Tribe to access its property and the White River Amphitheatre from State Route 164... In sum, the EIS traffic impact analysis was challenged, fully litigated, and found adequate by a federal court on the same grounds and utilizing the same standards applicable in state court under SEPA. We conclude that the doctrine of collateral estoppel bars Citizens' state claims. Because the collateral estoppel issue is dispositive, we do not address the remaining contentions of the parties.
*Holding: not available
Subjects: Blackjack (Game); Cheating; Cardsharping; Libel and slander; Casinos -- Coushatta Tribe of Louisiana; Coushatta Tribe of Louisiana -- Officials and employees; Gambling on Indian reservations; Indian gaming -- Coushatta Tribe of Louisiana.
*Synopsis: Former blackjack dealer at tribal casino and patron brought defamation action against casino, director of surveillance for casino, tribal gaming commission investigator, and casino's insurer arising out of accusation that dealer and patron were cheating at blackjack. The Thirty-Third Judicial District Court, Parish of Allen, No. C-97-756, Joel G. Davis, J., sustained defendants' peremptory exception of nonjoinder. Dealer and patron appealed. The Court of Appeal, Jimmie C. Peters, J., 819 So.2d 440 reversed and remanded. The Thirty-Third Judicial District Court, John P. Navarre, J., granted summary judgment for defendants, and dealer appealed.
*Holding: The Court of Appeal, Saunders, J., held that: (1) material issue of fact as to whether, after dealer was terminated for card marking and other inappropriate behavior, tribal gaming commission investigator distributed to commission members in good faith letter indicating that playing cards were found to be marked precluded summary judgment for investigator, and (2) material issue of fact as to exactly what tribal casino's director of surveillance told director of table games at different casino about alleged cheating at tribal casino precluded summary judgment for director of surveillance, who raised defense of truth in defamation action. Reversed and remanded.
Subjects: Leech Lake Band of Chippewa Indians, Minnesota; Deference to tribal courts -- Leech Lake Band of Chippewa Indians, Minnesota; Parent and child (Law); Trials (Custody of children) -- Minnesota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: (from the opinion) Appellant Leech Lake Band of Ojibwe (the Band) argues that the district court abused its discretion by denying the Band's motion to transfer the permanency planning trial concerning C.V.'s nonenrolled-Indian children to the Leech Lake tribal court. Because the district court did not abuse its discretion, we affirm.
*Holding: not available
Subjects: Gambling on Indian reservations -- Wisconsin; Indian gaming -- Wisconsin; Governors -- Wisconsin -- Powers and duties; Intergovernmental agreements -- Indian Country (Wisconsin).
*Synopsis: (from the opinion) Dairyland Greyhound Park, Inc., challenges the Governor's authority to extend eleven Indian gaming compacts. Pursuant to Wis. Stat. Rule 809.61 (2001-02), this court certifies the appeal in this case to the Wisconsin Supreme Court for its review and determination on a challenge to the Governor's authority to extend eleven Indian gaming compacts.
*Holding: not available
Subjects: Parent and child (Law); Trials (Custody of children) -- Wisconsin; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: (from the opinion) Shannon R. appeals orders terminating her parental rights to her children Darell and Daniel. Shannon argues: (1) the circuit court lost competency to proceed in Darell's case when it failed to hold the initial hearing within thirty days of the petition's filing, contrary to Wis. Stat. § 48.422(1); (2) her trial counsel was ineffective for failing to object to the jury instructions; (3) Brown County failed to properly notify Shannon of the conditions of Daniel's return, contrary to Wis. Stat. § 48.356; (4) the court erroneously admitted expert testimony by a tribal judge; (5) there was insufficient evidence to find serious emotional or physical damage to the children; and (6) the court erred when it refused to admit a psychologist's testimony. We disagree and affirm the orders.
*Holding: not available
Subjects: Gambling on Indian reservations -- California; Indian gaming -- California; Disclosure in accounting -- Tribes -- California; Revenue -- Accounting -- Tribes -- California; California.
*Synopsis:(from the opinion)[T]he complaint alleges the tribes are not paying the agreed-upon share and the Controller, Attorney General and Gaming Control Commissioners are not fulfilling their statutory duties to collect or require the tribes to account for the money...We conclude the court abused its discretion in denying the protective orders on the record before it. Because there are no disputed factual issues, the legal error is clear and the matter should be expedited, a peremptory writ in the first instance is appropriate.
*Holding: The Court of Appeal, McConnell, P.J., held that Controller and Attorney General, as top government officials, were not subject to having their depositions taken.
Subjects: California. Fair Political Practices Commission; Santa Rosa Indian Community of the Santa Rosa Rancheria, California; California. Political Reform Act of 1974; Campaign funds; Disclosure in accounting -- Santa Rosa Indian Community of the Santa Rosa Rancheria, California; Sovereign immunity -- Santa Rosa Indian Community of the Santa Rosa Rancheria, California.
*Synopsis: Fair Political Practices Commission (FPPC) filed action against Indian Tribe for failure to comply with reporting requirements for campaign contributions contained in the Political Reform Act (PRA). The Superior Court of Sacramento County, No. 0AS04544, Joe S. Gray, J., entered order granting Tribe's motion to quash. Commission appealed.
*Holding: The Court of Appeal, Sims, J., held that doctrine of Indian tribal immunity did not bar the suit against the tribe, under state's right to ensure a republican form of government guaranteed by the United States Constitution. Reversed and remanded.
Subjects: Sault Ste. Marie Tribe of Chippewa Indians of Michigan; Joseph K. Lumsden Bahweting Public School Academy (Mich.); Charter schools -- Michigan; Land tenure -- Sault Ste. Marie Tribe of Chippewa Indians of Michigan; Building leases -- Sault Ste. Marie Tribe of Chippewa Indians of Michigan; Jurisdiction -- Michigan; Sovereign immunity -- Sault Ste. Marie Tribe of Chippewa Indians of Michigan.
*Synopsis: (from the opinion) Plaintiff appeals as of right an order granting summary disposition in favor of defendant and an order denying plaintiff's motion for a temporary restraining order/permanent injunction. The circuit court ruled that it lacked jurisdiction and that defendant was protected by sovereign immunity. Plaintiff is a Michigan charter school located on land owned by defendant and leased to plaintiff. The case arose from a dispute over an amendment to the lease covering the school building and the disposal of certain school property, specifically a classroom modular unit. We affirm.
*Holding:not available
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis:After the Court of Appeal denied mother's writ petition challenging order denying her reunification services, mother's parental rights to two minor children were terminated in the Superior Court, Sutter County, Nos. DPSQ035884, DPSQ035885, Brian R. Aronson, J. Mother appealed.
*Holding: The Court
of Appeal, Sims, Acting P.J., held that:
(1) mother was not entitled to reunification services even in absence
of finding that she was perpetrator of physical abuse of one child, and
(2) denying mother psychological evaluation was not abuse of discretion.
Conditionally reversed and remanded with directions.
Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Visitation rights (Domestic relations).
*Synopsis: Paternal aunt filed petition for appointment of guardian of minor. Individual, who was previously appointed as child's guardian, filed motion for return of custody. The Superior Court, Third Judicial District, Anchorage, John Reese, J., determined that individual should remain child's guardian. Aunt appealed.
*Holding: The Supreme
Court held that denying aunt's request for guardianship of child did not violate
statute addressing court appointment of guardian for child.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Michigan; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Law -- Michigan; Jurisdiction -- Michigan.
*Synopsis: Father's parental rights to Indian children were terminated by Thirteenth Judicial District Court, County of Yellowstone, G. Todd Baugh, P.J., and father appealed.
*Holding: The Supreme
Court, W. William Leaphart, J., held that termination of father's parental
rights was in best interests of children.
Affirmed.
Subjects: Treaty of New Echota (1835); Law -- Georgia; Cherokee Nation -- Members -- Georgia; Tribal courts -- Indian Country (Georgia); Courts -- North Carolina; Debtor and creditor.
*Synopsis: Judgment creditor filed the North Carolina default judgment for enforcement in Georgia. The State Court, Carroll County, ordered enforcement of the consent order providing for joint and several liability of judgment debtor and its principal and former officer under the default judgment. Principal and former officer appealed.
*Holding: The Court of Appeals, Eldridge,
J. held that:
(1) by Treaty of New Echota of 1835 members of the Cherokee nation who
remained in Georgia were made subject to Georgia state law;
(2) principal and former officer who were non-reservation Indians allegedly
living on traditional tribal territory were not entitled to have action
removed to Tribal Court of Georgia Tribe of the Eastern Cherokee; and
(3) consent order providing for termination of the stay it granted upon
vacation of the stay by North Carolina court was enforceable when North
Carolina court vacated the stay. Affirmed.
Subjects: Form of contract; United States. Bureau of Indian Affairs -- Officials and employees; New Mexico -- Officials and employees; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico -- Officials and employees; Police patrol -- State supervision -- On Indian reservations -- Mescalero Apache Tribe of the Mescalero Reservation, New Mexico.
*Synopsis: Defendant filed motion to suppress evidence, which the District Court, Otero County, Jerry H. Ritter Jr., D.J., granted. State appealed.
*Holding:
The Court of Appeals, Wechsler, C.J., held that:
(1) federal statute governing Indian law enforcement responsibilities did
not authorize verbal agreement that allegedly existed between Bureau of
Indian Affairs (BIA) officer, who also served as chief of police of Indian
tribe, and state and county police, for state and county police officers
to patrol highways on Indian reservation;
(2) Mutual Aid Act did not authorize such verbal agreement; and
(3) traffic stop of defendant for speeding while he was driving within boundaries
of Indian reservation was not justified, as officer lacked authority to
enforce Indian tribal traffic ordinances.
Affirmed.
Subjects: Harrah's Kansas Casino Corp; Prairie Band of Potawatomi Indians, Kansas; Jurisdiction -- Prairie Band of Potawatomi Indians, Kansas; Wrongful death -- Kansas; Myocardial infarction.
*Synopsis: Personal representative of casino patron's estate brought wrongful death action against casino personnel and ambulance for allegedly negligent emergency treatment rendered when patient had heart attack. The Douglas District Court, Jack A. Murphy, J., granted defendants' motion to dismiss for lack of subject matter jurisdiction, and personal representative appealed.
*Holding: The Court of Appeals, Green, P.J., held that tribal court had exclusive subject matter jurisdiction over claim arising from events occurring on tribal property. Affirmed.
Subjects: Jurisdiction -- Montana; Jurisdiction -- Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana -- Members; Brocksmith Land and Livestock (Mont.); Due process of law; Frivolous suits (Civil procedure); Dealers (Retail trade).
*Synopsis: Enrolled Indian tribe member brought action against closely-held company and its directors, alleging various claims based upon or arising out of alleged buy-sell agreements. Company and directors brought motion to dismiss for lack of jurisdiction, as they had filed complaint in tribal court. Seventeenth Judicial District Court, Valley County, John C. McKeon, J., conditionally granted the directors' motion to dismiss. Enrolled member appealed. The Supreme Court, 321 Mont. 37, 88 P.3d 1269, affirmed. While appeal was pending, plaintiff filed second complaint to enforce settlement allegedly reached during mandatory mediation on appeal. Seventeenth Judicial District Court, Valley County, John C. McKeon, J., dismissed complaint on grounds it lacked jurisdiction while appeal was pending. Enrolled member appealed.
*Holding:
The Supreme Court, John Warner, J., held that:
(1) trial court lacked jurisdiction to consider complaint;
(2) lack of jurisdiction did not deprive plaintiff of a remedy in violation
of her due process rights; and
(3) defendants were not entitled to sanctions for frivolous appeal.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Fresno County (Calif.). Dept. of Children and Family Services; Cold Springs Rancheria of Mono Indians of California.
*Synopsis: In dependency proceeding in which termination of parental rights was not disputed, Indian tribe, joined by county department of children and family services and children's mother, petitioned juvenile court to place two young half-siblings, one of whom was Indian child within meaning of Indian Child Welfare Act (ICWA), with an Indian family, but children's attorney objected. The Superior Court, Fresno County, No. 03CEJ30030, Martin C. Suits, Commissioner, denied petition, finding that there was good cause to disregard ICWA preference for substantial evidence supported finding of good cause to disregard ICWA preference for Indian family placement of these two children; and (4) juvenile court did not exceed its authority by ordering department to explain any subsequent change in placement with Indian family, and ordered department to explain to court any subsequent change in children's current placement. Department filed petition for extraordinary writ.
*Holding:
The Court of Appeal, Vartabedian, Acting P.J., held that:
(1) ICWA did not restrict juvenile court, in making good cause determination,
to considerations contained in federal guidelines and state rule of
court;
(2) good cause finding under ICWA was subject to substantial evidence
standard of appellate review;
(3) substantial evidence supported finding of good cause to disregard
ICWA preference for placement of these two children; and
(4) juvenile court did not exceed its authority by ordering department
to explain any subsequent change in placement.
Petition denied.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Adoption.
*Synopsis: Order terminating parents' parental rights to their one-year-old son was entered in the Superior Court, Riverside County, No. RIJ102896, Robert W. Nagby, Temporary Judge. Parents appealed.
*Holding:
The Court of Appeal, Richli, J., held that:
(1) notice under the Indian Child Welfare Act (ICWA) was not required,
and
(2) "parental relationship" exception to adoption as permanent
plan did not apply. Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Grandparents.
*Synopsis: Twin brothers and their half-brother were declared dependent children, in the Superior Court of San Diego County, No. J514824A-C, Susan D. Huguenor, J., because of neglect. Maternal grandmother appealed.
*Holding:
The Court of Appeal, Aaron, J., held that:
(1) whether Indian Child Welfare Act (ICWA) applied could not be determined
in absence of social service agency's submission of proof of ICWA notices;
(2) grandmother was entitled to challenge by appeal juvenile court's order
terminating her guardianships;
(3) grandmother was not entitled to reunification services;
(4) Probate Code guardianships could be terminated before reunification services
were offered;
(5) substantial evidence supported orders terminating grandmother's guardianships;
(6) grandmother failed to show ineffective assistance of counsel; and
(7) grandmother was not entitled to de facto parent status.
Affirmed in part, dismissed in part, reversed in part, and remanded with directions.
Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: (from the opinion) Dorothy, the mother of Anthony, born May 29, 1992, and Jesus, born September 6, 1993, filed a petition on appeal contending (1) the State failed to provide active efforts to prevent the break up of her Native American family, (2) the juvenile court should not have terminated her parental rights to the two children, (3) the State did not prove the grounds for termination beyond a reasonable doubt, and (4) the State failed to prove beyond a reasonable doubt that her parental rights should be terminated under Iowa Code sections 232.116(1)(d), (e), and (f) (2003). We ordered full briefing by the appellant and the State on the issue of active efforts.
*Holding:not available
Subjects: Wrongful death -- Connecticut; Sovereignty -- Mohegan Indian Tribe of Connecticut; Liability for industrial accidents; Mohegan Sun Hotel (Conn.); M.V. Farinola, Inc.; Corporations, Foreign; Building inspectors.
*Synopsis:
(from the opinion) The main case concerns the operation
and maintenance of a personnel and materials hoist at the Mohegan
Sun Hotel, from which the plaintiff's decedent, John Horn, fell to
his death. The apportionment defendant Farinola inspected the hoist
prior to the fall. In the apportionment complaint, Lewis alleges that
if the hoist was unsafe, Farinola may be liable to it for Farinola's
failure to inspect the hoist adequately...
For purposes of this case and because the Mohegan Tribe's sovereignty
is not implicated, the court concludes that Connecticut may exercise
jurisdiction. The court finds that the Mohegan Sun Hotel is located
within the boundaries of the State of Connecticut and denies the motion
to dismiss.
*Holding: not available
Subjects: Traffic accidents -- On Indian reservations -- Mashantucket Pequot Tribe of Connecticut; Employees -- Defined; Mashantucket Pequot Gaming Enterprise -- Officials and employees; Auto Rental Corp. (Conn.) -- Officials and employees; Sovereign immunity; Jurisdiction -- Connecticut.
*Synopsis:
(from the opinion) Before the court is the defendants' motion
to dismiss on the ground that the plaintiff's cause of action is barred by
the doctrine of sovereign immunity...
The motion to dismiss speaks solely to the question of whether the complaint,
as it is written, has been filed in the proper court. Since the complaint
purports to state a claim against parties that are not employed by nor officials
of the Gaming Enterprise, jurisdiction in the Superior Court is proper. Until
the complaint is amended to reflect the correct employment affiliation and
relationships between and among the relevant parties to this action, this
court must retain jurisdiction of this case. Accordingly, the motion to dismiss
is denied.
*Holding: not available
Subjects: Virginia. State Water Control Board; Environmental permits; Water; Reservoirs -- Newport News (Va.); Mattaponi Indian Tribe, Virginia; Virginia. Dept. of Environmental Quality; Standing to sue; Virginia Administrative Procedure Act; Sovereign immunity -- Virginia; Jurisdiction.
*Synopsis: Environmental conservation organizations and two landowners appealed from decision of State Water Control Board (SWCB) to grant a water protection permit (WPP) to city for reservoir project. The Circuit Court, City of Newport News, Robert W. Curran, J., dismissed appeal for lack of standing. Organizations and landowners appealed. The Court of Appeals, affirmed. Organizations and landowners appealed. In separate action, Indian tribe appealed from SWCB's issuance of WPP to city. The Circuit Court, City of Newport News, Robert W. Curran, J., sustained Commonwealth and city's demurrers. Tribe appealed. The Court of Appeals, affirmed, and tribe appealed. On consolidated appeals, the Supreme Court, reversed. On remand, the Circuit Court affirmed SWCB's permit decision under Virginia Administrative Procedure Act (VAPA) and dismissed non-VAPA treaty claim. Tribe and organizations appealed.
*Holding:
The Court of Appeals, D. Arthur Kelsey, J., held that:
(1) Commonwealth's sovereign immunity was waived;
(2) SWCB lacked jurisdiction over freestanding treaty claim;
(3) Supreme Court had exclusive jurisdiction over judgment of the trial
court in its non-VAPA jurisdiction; and
(4) substantial evidence supported issuance of permit for construction of
reservoir. Affirmed in part and transferred in part.
Subjects: Alimony; Tribal members; Jurisdiction -- California.
*Synopsis: Husband filed motion seeking temporary spousal support from wife, who was a member of an Indian tribe. The Superior Court, Santa Barbara County, No. 1008103, James B. Jennings, J., ordered that wife pay husband monthly temporary spousal support. Wife appealed, and husband cross-appealed.
*Holding: The Court of Appeal, Gilbert, P.J., held that family law court had jurisdiction to order member of Indian tribe to pay temporary spousal support to nonmember. Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- South Dakota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Jurisdiction -- Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota.
*Synopsis: Paternal grandparents petitioned for permanent guardianship of grandchild, and mother filed a motion to transfer jurisdiction to tribal court. The Circuit Court of the First Judicial Circuit, Clay County, Arthur L. Rusch, J., denied the motion. Mother appealed.
*Holding:
The Supreme Court, Konenkamp, J., held that:
(1) the Indian Child Welfare Act (ICWA) applied to proceeding in which paternal
grandparents sought permanent guardianship of grandchild, and
(2) good cause did not exist to prevent transfer of paternal grandparent's
petition for permanent guardianship of Indian grandchild to tribal court.
Reversed.
Subjects: Parent and child (Law); Trials (Custody of children) -- New York; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Adoption; Jurisdiction -- Tohono O'odham Nation of Arizona; Tohono O'odham Nation of Arizona -- Membership; Tribal members -- Tohono O'odham Nation of Arizona.
*Synopsis: Indian tribe filed motion to intervene in adoption proceeding involving child, whose biological mother was member of tribe and who was placed with non-Indian adoptive parents. Adoptive parents moved to have tribe's counsel disqualified.
*Holding:
The Family Court, New York County, Mary E. Bednar, J., held that:
(1) existing Indian Family (EIF) doctrine is necessary to uphold constitutionality
of Indian Child Welfare Act (ICWA), and
(2) information adoptive parent provided to tribe's counsel did not warrant
disqualification of counsel.
Ordered accordingly.
Subjects: Parent and child (Law); Trials (Custody of children) -- Montana; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: Father's parental rights to Indian children were terminated by Thirteenth Judicial District Court, County of Yellowstone, G. Todd Baugh, P.J., and father appealed.
*Holding: The Supreme Court, W. William Leaphart, J., held that termination of father's parental rights was in best interests of children. Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Minnesota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Foster home care.
*Synopsis: (from the opinion) E.M.D. appeals from an order adjudicating her son a child in need of protection or services (CHIPS). E.M.D. argues that the CHIPS adjudication must be reversed because (1) the petition sought long-term foster care rather than a CHIPS adjudication, and relief may not be based on issues that are neither pleaded nor litigated; (2) the county failed to provide her with a written out-of-home-placement plan, in violation of Minn.Stat. § 260C.212, subd. 1(a) (2002); (3) the evidence does not support a CHIPS adjudication; (4) the county violated the requirements of the Indian Child Welfare Act (ICWA) by failing to make active efforts to provide her services and programs to prevent the breakup of the family; and (5) the court erred in concluding that the tribal social worker qualified as an expert for ICWA purposes. By notice of review, respondent Grand Portage Band of Chippewa challenges the denial of the petition for long-term foster care, claiming that the law requires permanency in this case because the total out-of-home-placement time exceeds the maximum permitted before the matter reaches permanency. We affirm the CHIPS adjudication and the denial of the petition for long-term foster care, but we reverse the portion of the district court's order placing C.L.D. in foster care for an indeterminate period of time pending a disposition hearing, and remand for a permanency determination consistent with Minn.Stat. § 260C.201, subd. 11(d) (2002).
*Holding: not available
Subjects: Debtor and creditor; Contracts; Breach of Contract; Jurisdiction -- Colorado; Sovereign immunity -- Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah; Rush Creek Solutions (Colo.); Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah.
*Synopsis: Provider of computer services sued Indian tribe for breach of contract, unjust enrichment, and promissory estoppel. Tribe moved to dismiss the complaint, challenging subject matter jurisdiction based on sovereign immunity. The District Court, Arapahoe County, No. 02CV2720, John P. Leopold, J., denied the motion to dismiss the complaint. Tribe appealed.
*Holding:
The Court of Appeals, Casebolt, J., held that tribe's Chief Financial
Office (CFO) had apparent authority to sign contract with provider and waive
sovereign immunity.
Affirmed and remanded.
Subjects: Intergovernmental agreements; Governors -- Michigan -- Rights and responsibilities; Indian gaming -- Michigan; Gambling on Indian reservations -- Michigan; Michigan. Constitution (1963); Exclusive and concurrent legislative powers -- Michigan; Michigan. Legislature; Tribes -- Michigan.
*Synopsis: Taxpayers filed petition against the State alleging that the submission of compacts between the Governor and Indian tribes authorizing the tribes to operate casinos on reservations through joint resolution process instead of legislative process violated provisions of the state Constitution. The Ingham Circuit Court, Peter D. Houk, J., determined that legislative approval, by resolution, of the compacts violated certain provisions of the Michigan Constitution. The State appealed. The Court of Appeals, 254 Mich.App. 23, 657 N.W.2d 503, affirmed in part and reversed in part. Taxpayers sought leave to appeal.
*Holding:
The Supreme Court, Corrigan, C.J., held that:
(1) Legislature's approval of compacts did not constitute "legislation";
(2) concurrent resolution was an appropriate method for Legislature to approve
compacts; and
(3) resolution did not violate "local acts" provision of Michigan
Constitution. Affirmed in part and remanded in part.
Subjects: Parent and child (Law); Trials (Custody of children) -- South Dakota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Jurisdiction -- Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota.
*Synopsis: Termination of parental rights proceedings were initiated for Native American children. Native American tribe moved to intervene and to transfer jurisdiction to tribal court. The Circuit Court, Seventh Judicial Circuit, Fall River County, Thomas L. Trimble J., denied transfer and terminated parental rights. On parents' appeal, the Supreme Court, 661 N.W.2d 768, 2003 SD 49, initially affirmed, but on rehearing, 665 N.W.2d 83, 2003 SD 49, remanded to circuit court for limited purpose of hearing on tribe's motion to transfer. On remand, the Circuit Court, Seventh Judicial District, Fall River County, Thomas L. Trimble, J., denied tribe's motion to transfer proceedings to tribal court. Parents appealed
*Holding: The Supreme Court, Sabers, J., held that: good cause existed to deny transfer of proceeding to tribal court. Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Process.
*Synopsis: Petition was filed to terminate father's parental rights to child. The District Court, Polk County, Odell G. McGhee, II, J., terminated parental rights. Father appealed.
*Holding:
The Court of Appeals, Vaitheswaran, J., held that:
(1) trial court was not required to determine whether child was an "Indian
child," for the purpose of the Iowa Indian Child Welfare Act;
(2) the record supported finding that father was properly served with
the petition for termination of parental rights; and
(3) termination of father's parental rights to child was in the best
interest of child. Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: Minor was found to be adoptable, and the Superior Court, Los Angeles County, No. LK030022, Irwin H. Garfinkel, Temporary Judge, terminated parental rights of both parents. Father appealed.
*Holding:
The Court of Appeal, Vogel, J., held that:
(1) county agency failed to comply with notice requirements of Indian Child
Welfare Act (ICWA), and
(2) conditional reversal of final order was required.
Affirmed in part, conditionally reversed in part, and remanded with directions.
Subjects: Tribes -- Connecticut; Tribal membership -- Indian Country (Conn.); Mohegan Indians; Connecticut Indian Affairs Council; Connecticut; Jurisdiction -- Connecticut.
*Synopsis:
(from the opinion) RULING ON MOTIONS TO DISMISS
The pro se plaintiff, Jeffrey "Stepstrong" Dontigney, alleges
that he is a native American, more particularly Mohegan, and in his complaint
he seeks the vindication of claimed rights. As explained at oral argument,
quite articulately, Mr. Dontigney claims that he has been denied membership
in his tribe and seeks monetary and equitable relief including the ability
to participate as a member of the Connecticut Indian Affairs Council.
The defendants are the council, several Connecticut officials including
the governor, and representatives of four Connecticut tribes. The defendants
have moved to dismiss the complaints for several reasons; it is fair to
say that the fundamental claim is that this court simply has no authority
to decide disputes regarding membership in tribes...At oral argument,
Mr. Dontigney made a plea for recognition. This is understandable. The
reality, however, is that this court cannot offer the relief sought, and
each of the motions to dismiss is therefore granted for lack of subject
matter jurisdiction.
*Holding: not available
Subjects: Jurisdiction -- Minnesota; Promissory notes; Contracts.
*Synopsis: Lender sued borrower to enforce promissory note and assignment agreements, under which lender financed borrower's legal actions in exchange for a percentage of proceeds if actions were successful. The District Court, Dakota County, Martha M. Simonett, J., granted summary judgment in favor of lender, and borrower appealed.
*Holding:
The Court of Appeals, Forsberg, J., serving by appointment, held that:
(1) note was a valid agreement between parties;
(2) assignment agreements were champertous and void as against public policy;
and
(3) state court had jurisdiction over issue of validity of assignment of portion
of proceeds paid to borrower's daughter after enrollment as a member of Indian
tribe. Affirmed in part and reversed in part.
Subjects: Parent and child (Law); Trials (Custody of children) -- Kansas; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Adoption; Uncles; Aunts.
*Synopsis: Child's aunt and uncle, who lived in Arizona and sought to adopt child, challenged decision of the Department of Social and Rehabilitative Services and its contracting agency to place the child with her foster parents for adoption. After a full evidentiary hearing, the Labette District Court, Daniel L. Brewster, J., ruled that the Department and contracting agency had not used reasonable efforts in placing child and ordered placement of child with the aunt and uncle. Department and foster parents appealed.
*Holding:
The Court of Appeals, Rulon, C.J., held that:
(1) District Court had statutory authority to review the adoptive placement
decision and determine whether Department and agency had made "reasonable
efforts";
(2) term "reasonable efforts" meant more than the efficiency of
finding suitable adoptive placement;
(3) Department and agency failed to exercise reasonable efforts in making
adoptive placement decision; and
(4) District Court improperly discounted the emotional bond between child
and her foster parents when making placement decision.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Grandparents.
*Synopsis: On supplemental dependency petition by county health and services agency, the Superior Court, San Diego County, No. EJ1991A-C, Gary Bubis, Referee, entered order removing three minors from their grandmother. One minor, mother, and grandparents appealed, and one minor filed petition for writ of habeas corpus.
*Holding:
The Court of Appeal, Huffman, J., held that:
(1) minor's appeal from order was timely;
(2) grandparents had no standing to appeal;
(3) county agency's rescission of its approval of placement in grandparents'
residence was not substantial evidence that placement was ineffective in
protecting children; and
(4) juvenile court failed to comply with notice requirement of the Indian
Child Welfare Act (ICWA).
Petition denied, grandparents' appeal dismissed, and orders reversed and
matter remanded with directions.
Subjects: Intergovernmental agreements; Governors -- New York -- Rights and responsibilities; Indian gaming -- New York; Gambling on Indian reservations -- New York; Separation of powers -- New York; New York. Constitution; Video lottery terminals.
*Synopsis: In consolidated actions by group of citizen taxpayers, two state legislators, nonprofit organizations and unincorporated association opposed to spread of gambling, seeking judgment declaring certain provisions of law governing gaming to be unconstitutional, the Supreme Court, Albany County, Teresi, J., granted summary judgment in favor of governor dismissing complaints. Plaintiffs appealed
*Holding:
The Supreme Court, Appellate Division, Mercure, J., held that:
(1) provision which authorized governor to enter compact with tribes for
casino gaming on Indian lands was proper;
(2) video lottery terminals (VLT), which provision directed Division of
Lottery to license and implement at pari-mutuel racetracks, fell within
exception to general ban on gambling;
(3) provision regarding VLT vendor fees violated constitutional requirement
that net proceeds of state-run lottery be applied to education; and
(4) provision authorizing Division to participate in multi-state lottery
did not violate constitutional requirement that lotteries be operated by
the state.
Affirmed as modified.
Subjects:Washington Utilities and Transportation Commission; Confederated Tribes and Bands of the Yakama Indian Nation of the Yakima Reservation, Washington; Municipal franchises -- On Indian reservations; Fees, Administrative; Public utilities -- Washington.
*Synopsis: Non-Indian living on fee land within Indian reservation and citizens' group petitioned for declaratory and injunctive relief, challenging decision of Utilities and Transportation Commission (UTC) allowing utilities which were operating on reservation to pass on cost of "franchise fee" exacted by Tribal Council to all ratepayers within the reservation, including non-Indians. The Superior Court, Yakima County, granted utilities' motions for summary judgment. Non-Indian and group appealed.
*Holding:
The Court of Appeals, Kato, C.J., held that UTC determination was not arbitrary and capricious.
Affirmed.
Subjects: Evidence (Law); Assault and battery; Peace officers; Intergovernmental agreements -- Becker County (Minn.); Intergovernmental agreements; White Earth Band of Chippewa Indians; Exclusive jurisdiction; Criminal jurisdiction.
*Synopsis: Defendant was convicted in the District Court, Becker County, William E. Walker, J., of fourth-degree assault of a tribal peace officer on tribal land, obstructing legal process, and disorderly conduct. Defendant appealed. The Court of Appeals affirmed, 662 N.W.2d 183. Defendant appealed.
*Holding:
The Supreme Court, Blatz, C.J., held that:
(1) cooperative agreement between county and Indian tribe for regulation of law enforcement services on reservation property, which was entered pursuant to statute, was not preempted by federal Public Law 280, which granted State criminal jurisdiction over all Indian country in the state with the exception of the Red Lake Reservation, and
(2) State did not unlawfully retrocede its jurisdiction under Public Law 280.
Affirmed.
Subjects: United States. Bureau of Indian Affairs -- Officials and employees; School accidents; Negligence; Belcourt Public School District (N.D.).
*Synopsis: Teacher, who was injured when she attempted to break up fight between students in lunchroom, brought negligence action against school district. The District Court, Rolette County, Northeast Judicial District, Lester Ketterling, J., granted summary judgment to school district, and teacher appealed.
*Holding: The Supreme Court, Neumann, J., held that school district did not owe a duty of care to teacher who was employed by the United States Bureau of Indian Affairs (BIA) as a special education teacher at the school and who was injured when she attempted to break up fight between students in lunchroom. Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- North Dakota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Evidence (Law).
*Synopsis: A petition was filed to terminate mother and father's parental rights to their two children. The Juvenile Court, Traill County, East Central Judicial District, Janice Benson Johnson, Referee, terminated parental rights. Father appealed.
*Holding:
The Supreme Court, Maring, J., held that:
(1) clear and convincing evidence supported finding that children were deprived;
(2) clear and convincing evidence supported finding that the deprivation of
the children was likely to continue;
(3) clear and convincing evidence supported finding that father's custody
of the children was likely to result in serious emotional or physical harm
to the children; and
(4) clear and convincing evidence supported finding that efforts were made
to preserve the Indian family. Affirmed. Dale V. Sandstrom, J., filed a specially
concurring opinion in which Carol Ronning Kapsner, J., joined.
William A. Neumann, J., concurred specially.
Subjects: Parent and child (Law); Trials (Custody of children) -- Montana; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Evidence (Law).
*Synopsis: Department of Public Health and Human Services (DPHHS) commenced child abuse and neglect proceedings. The District Court, Eighth Judicial District, Cascade County, Thomas McKittrick, J., terminated mother's parental rights. Mother appealed.
*Holding: The Supreme Court, James C. Nelson, J., held that: (1) trial court applied correct standard of proof under Indian Child Welfare Act (ICWA), and (2) evidence supported trial court's determination that child was likely to suffer serious physical or emotional damage if placed in mother's care. Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Fresno County (Calif.).
*Synopsis:
Father's parental rights to five children were terminated in the Superior
Court, Fresno County,
Martin Suits, J. Father appealed.
*Holding: The Court of Appeal, Buckley, J., held that: (1) father did not forfeit issue of county department's compliance with federal Indian Child Welfare Act (ICWA), and (2) department failed to comply with ICWA notice requirements. Reversed and remanded.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: Father's parental rights to five children were terminated in the Superior Court, Fresno County, No. 01CEJ300310, Martin Suits, J. Father appealed.
*Holding:
The Court of Appeal, Buckley, J., held that:
(1) father did not forfeit issue of county department's compliance with federal
Indian Child Welfare Act (ICWA), and
(2) department failed to comply with ICWA notice requirements.
Reversed and remanded.
Subjects: Utah; Native American Church of North America -- Members; Peyote; Peyotism; Non-members of a tribe; Utah. Controlled Substances Act.
*Synopsis: State brought criminal action against branch of Native American Church and members of Church branch, charging defendants with multiple felony counts of engaging in continuing criminal enterprise and engaging in pattern of unlawful activity by possessing and distributing peyote, a controlled substance, to members and visitors during religious services, and State also sought forfeiture of Church branch property. The Fourth District Court, Provo Department, Gary D. Stott, J., denied defendants' motion to dismiss. Defendants appealed.
*Holding: The Supreme Court, Parrish, J., held that: (1) the federal exemption for religious use of peyote in bona fide ceremonies of Native American Church constitutes a specific exception to listing of peyote as controlled substance under Utah Controlled Substances Act, and (2) the exemption applies to Church members who are not members of a federally-recognized tribe. Reversed and remanded.
Subjects: Pinoleville Rancheria of Pomo Indians of California; Trusts and trustees; Trust lands -- California.
*Synopsis: (from the opinion) After more than a century of court supervision, the trial court ordered dissolution of the "Trusteeship of the Pinoleville Indians" (Trust), along with distribution of all Trust assets. The primary asset is a 59-acre parcel of property near Ukiah, Mendocino County. It is adjacent to the Pinoleville Rancheria (Rancheria), an approximately 100-acre parcel acquired by the federal government for the federally recognized Pinoleville Band of Pomo Indians (Pinoleville Band).
*Holding:not available
Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Substance abuse; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: Mother appealed from decision of the District Court, Polk County, Karla Fultz, Associate Juvenile Judge, terminating her parental rights.
*Holding:The Court of Appeals, Mahan, P.J., held that it was in the children's best interests to terminate mother's parental rights. Affirmed.
Subjects: Cherokee Nation Enterprises (Okla.); Workers' compensation -- Oklahoma; Jurisdiction -- Oklahoma.
*Synopsis: Workers' compensation claimant sought review of an order of the Workers' Compensation Court, D. Craig Johnston, J., that found that it lacked subject matter jurisdiction over claimant's benefits claim.
*Holding: The Court of Civil Appeals, Rapp, J., held that employer's workers' compensation
insurance company was estopped from denying workers' compensation coverage.
Reversed and remanded with instructions.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; San Diego County (Calif.). Health and Human Services Agency; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: The Superior Court of San Diego County, No. J511730F, Susan D. Huguenor, J., entered order terminating parental rights to child with possible Indian heritage. Father appealed.
*Holding: The Court of Appeal, McDonald, J., held that notice under Indian Child Welfare Act (ICWA) was insufficient as it contained no information about father' grandmother or child's paternal grandmother. Reversed with directions.
Subjects: Drunk driving -- Off Indian reservations; Jurisdiction -- Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; Indian reseration police -- Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; Arizona.
*Synopsis: Defendant was convicted in the Superior Court, Maricopa County, Cause No. CR 2003-030770-001-SE, John M. Gaylord, J., of aggravated driving while under the influence, following denial of her motion to suppress. Defendant appealed.
*Holding: The Court of Appeals, Portley, J., held that law enforcement officer who was employed by governing body of Indian tribe and certified by Arizona Peace Officer Standards and Training Board (AZ POST) was expressly authorized by statute to conduct brief stop and detention of vehicle off the reservation. Affirmed.
Subjects: Mattaponi Indian Reservation (Virginia) -- Exclusion, Right of; Trials (Trespass); Evidence.
*Synopsis: Defendant was convicted in the Circuit Court, King William County, Thomas B. Hoover, J., of trespassing, and he appealed.
*Holding: The Court of Appeals, Humphreys, J., held that evidence was sufficient to establish that defendant was forbidden from entering Indian reservation by those lawfully in charge thereof so as to support defendant's conviction for trespassing. Affirmed.
Subjects: Crimes without victims; Criminal jurisdiction -- Kansas; Criminal actions arising in Indian Country (Kan.).
*Synopsis: Lincoln C. Brown appeals the denial of his motion, alleging that the State lacked jurisdiction over a victimless crime perpetrated by a Native American on a tribal reservation. The district judge reviewed the criminal file and proceedings and summarily denied the motion.
*Holding: not available
Subjects: United States. Indian Gaming Regulatory Act; Intergovernmental agreements -- Wisconsin; Intergovernmental agreements -- Forest County Potawatomi Community of Wisconsin Potawatomie Indians, Wisconsin; Gambling on Indian reservations; Indian gaming; Wisconsin. Governor.
*Synopsis: State Senate Majority Leader, State Assembly Speaker, and Joint Committee on Legislative Organization filed original action for declaratory and injunctive relief against Governor and Secretary of Administration, regarding Governor's agreement to amendments to State's gaming compact with Indian tribe under federal Indian Gaming Regulatory Act (IGRA).
*Holding: The Supreme Court, David T. Prosser, J., held that: (1) State statute allowing Governor to enter into compacts with Indian tribes pursuant to IGRA was not an unconstitutional delegation of power; but (2) Governor lacked inherent or delegated authority, under separation of powers principles, to give up State's power, under pre-amendment compact, to periodically withdraw from compact; (3) Governor lacked inherent or delegated authority to allow tribe to offer new casino-style games that were, as reflected in State's criminal statutes and reinforced by its Constitution, prohibited to everyone in the State; and (4) Governor lacked inherent or delegated authority to waive State's sovereign immunity. Declaratory relief granted; injunctive relief denied. Shirley S. Abrahamson, C.J., and Ann Walsh Bradley, J., and N. Patrick Crooks, JJ., jointly filed a dissenting opinion.
Subjects: Workers' compensation; Tunica-Biloxi Indian Tribe of Louisiana -- Employees; Gambling on Indian reservations; Indian gaming; Paragon Casino Resort (La.); Jurisdiction -- Louisiana; Louisiana. Office of Worker's Compensation Administration.
*Synopsis: Casino employee filed workers' compensation claim against Native American tribe that owned casino. The Office of Workers' Compensation--District 2, Parish of Rapides, James L. Braddock, Workers' Compensation Judge (WCJ), granted tribe's exception of lack of subject matter jurisdiction, and employee appealed.
*Holding: The Court of Appeal, Decuir, J., held that:(1) tribe did not waive its sovereign immunity with respect to workers' compensation claim filed in state Workers' Compensation Office by employee;(2) compact between tribe and state did not evince intent that state would retain jurisdiction over workers' compensation claims;(3) fact that compact between state and tribe gave tribe jurisdiction over tort claims, did not mean that state would have to expressly grant tribe jurisdiction over workers' compensation claims; and (4) ordinance passed by tribe regarding its intention to exercise jurisdiction over workers' compensation claims did not have to be signed by tribal chairman and state governor, and be approved by Secretary of Interior, in order to be effective.
Subjects: Mashantucket Pequot Gaming Enterprise -- Employees; Casinos -- Mashantucket Pequot Tribe of Connecticut; Foxwoods Resort Casino (Mass.); Gambling on Indian reservations; Indian gaming; United States. Family and Medical Leave Act of 1993; Sovereign immunity -- Mashantucket Pequot Tribe of Connecticut; Jurisdiction-- Connecticut.
*Synopsis: (from the opinion) The defendants, eight individuals who formerly were, employed by the Mashantucket Pequot Gaming Enterprise at Foxwoods Resort Casino, move to dismiss this wrongful termination action on the grounds that the court lacks subject matter jurisdiction and that the court lacks personal jurisdiction. First, the defendants claim that the court lacks subject matter jurisdiction because (1) they are protected by tribal sovereign immunity since they are or were employees, officers and/or officials of the gaming enterprise; and (2) it would infringe on tribal self-governance if a state court were to exercise jurisdiction over a tribal employment matter. Secondly, the defendants claim that the court lacks personal jurisdiction due to insufficient service of process. The defendants' motion to dismiss is granted.
*Holding: not available
Subjects: Parent and child (Law); Trials (Custody of children) -- South Dakota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Tribal members -- Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; Jurisdiction -- Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota.
*Synopsis: State moved to terminate father's parental rights. The Fifth Judicial Circuit Court, Brown County, Jack Von Wald, J., terminated father's parental rights pursuant to Indian Child Welfare Act (ICWA), and father appealed.
*Holding: The Supreme Court held that: (1) mother was entitled to relief from judgment voluntarily terminating her parental rights; (2) caseworker for Department of Social Services was qualified to testify as expert under ICWA; (3) State made active efforts to provide remedial services and rehabilitative programs while father was incarcerated prior to terminating father's parental rights; and (4) serious emotional or physical harm would result to special needs child if father was allowed to retain custody.
Subjects: Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Suppression of evidence -- South Dakota; Traffic violations -- Off Indian reservations; Admissible evidence; Police pursuit driving -- On Indian reservations; South Dakota.
*Synopsis: The State argues that the magistrate court abused its discretion by suppressing all evidence gathered by a state law enforcement officer after going onto the Pine Ridge Indian Reservation in pursuit of a tribal member. The State appeals raising one issue: Whether a state officer in fresh pursuit for a traffic violation may pursue a tribal member onto his reservation and gather evidence from the driver when the alleged crimes were committed off the reservation.
*Holding:
After hearing arguments and taking testimony on Defendant’s motion
to suppress, the magistrate held that State v. Spotted Horse, 462
NW2d 463 (SD 1990) required suppression of all evidence the officer obtained after
he entered the reservation. Everything the officer observed before the Defendant
went on the reservation was held admissible.
The court affirms.
Related News Stories: Court: Deputy Had No Jurisdiction (Rapid City Journal) 04/23, South Dakota Rejects Hicks Defense in Police Chase (Indianz.com) 4/23/04.
Subjects: Jurisdiction -- Montana; Jurisdiction -- Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana -- Members; Non-Indians; Fee lands -- Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Trust lands -- Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Brocksmith Land and Livestock (Mont.).
*Synopsis: Enrolled Indian tribe member brought action against closely-held company and its directors, alleging various claims based upon or arising out of alleged buy-sell agreements. Company and directors brought motion to dismiss for lack of jurisdiction, as they had filed complaint in tribal court. The District Court of the Seventeenth Judicial District, Valley County, John C. McKeon, J., conditionally granted the motion to dismiss. Enrolled member appealed.
*Holding: The Supreme Court, Jim Regnier, J., held that district court could exercise doctrine of abstention and dismiss action because tribal court had assumed jurisdiction.
Subjects: Public schools -- Finance -- Montana; Columbia Schools Elementary School District (Mont.); Montana School Boards Association; Montana Rural Education Association; School Administrators of Montana; Indian students; American Indian education; Constitutional law.
*Synopsis: (from the opinion) This case involves a challenge to the constitutionality of Montana's current system for funding its public elementary and secondary schools. The constitutional provision involved reads as follows: Educational goals and duties. (1) It is the goal of the people to establish a system of education which will develop the full educational potential of each person. Equality of educational opportunity is guaranteed to each person of the state. (2) The state recognizes the distinct and unique cultural heritage of the American Indians and is committed in its educational goals to the preservation of their cultural integrity. (3) The legislature shall provide a basic system of free quality public elementary and secondary schools.
*Holding: not available
Subjects: Parent and child (Law); Trials (Custody of children) -- Michigan; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Evidence, Expert; Pokagon Band of Potawatomi Indians of Michigan.
*Synopsis: (from the opinion) Respondent-appellant argues that the testimony of William Holmes, MSW, did not meet the Indian Child Welfare Act (ICWA) requirement that the trial court's determination be supported by the testimony of "qualified expert witnesses." 25 USC 1912(f). Respondent-appellant makes this argument based on Mr. Holmes' testimony that he could not give an opinion or recommendation on behalf of the tribe. Mr. Holmes is the Director of Social Services for the Pokagon Band of the Potawatami Indian tribe. He was qualified as an expert in Indian child welfare, without objection. Mr. Holmes opined that custody of the minor children by respondent-appellant would likely result in serious emotional or physical damage to the children.
*Holding: not available
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Kern County (Calif.). Dept. of Human Services; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: Lorianne S. appeals from an order terminating her parental rights (Welf. & Inst.Code, § 366.26) to her son, Jacob. She claims neither the court nor respondent Kern County Department of Human Services adequately investigated the possibility that Jacob could be an Indian child entitled to the protections afforded by the federal Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.).
*Holding: The court holds that once the department makes the requisite showing of its compliance with 25 United States Code section 1912(a), any party claiming the department's actions were inadequate must raise that issue in the juvenile court for hearing thereon. Appellant's failure here to raise the matter below leaves us no record of error to review. Accordingly, we affirm. The order terminating parental rights is affirmed.
Subjects: Water rights -- New Mexico; Cities and towns -- New Mexico; Resource allocation -- New Mexico; Pueblos -- New Mexico; Pecos River Watershed (N.M. and Tex.); Las Vegas (N.M.); Gallinas River.
*Synopsis: Appeals were taken from an order of the District Court, Chaves County, LaFel E. Oman, D.J. pro tem., denying cross-motions for partial summary judgment in water rights dispute between city and state. The Court of Appeals, 110 N.M. 425 , 796 P.2d 1121, affirmed and remanded. On remand, the District Court, Harl D. Byrd, D.J. pro tem., recognized city's claim to water rights under doctrine but found in favor of State Engineer on parameters of city's pueblo right. City appealed and State Engineer cross-appealed. The Court of Appeals, 118 N.M. 257, 880 P.2d 868 , reversed and remanded. City filed petition for writ of certiorari.
*Holding: The Supreme Court, Serna, J., held that: (1) pueblo water rights doctrine was inconsistent with state's system of prior appropriation, overruling Cartwright v. Public Service Co. of New Mexico, 66 N.M. 64 , 343 P.2d 654, but (2) decision would be given limited prospective application with respect to city.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; San Diego County (Calif.). Health and Human Services Agency; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: County social services agency filed dependency petition on behalf of minor. The Superior Court, San Diego County, No. J514574A, Cynthia Bashant, J., terminated reunification services to minor's mother and continued jurisdiction over minor. Mother appealed.County social services agency filed dependency petition on behalf of minor. The Superior Court, San Diego County, No. J514574A, Cynthia Bashant, J., terminated reunification services to minor's mother and continued jurisdiction over minor. Mother appealed.
*Holding:The Court of Appeal, McDonald, J., held
that:
(1) social services agency failed to comply with notice provisions of Indian
Child Welfare Act (ICWA), and
(2) social services agency's failure to comply with ICWA notice requirements
was not cured by subsequent notices sent to Bureau of Indian Affairs (BIA)
and the tribe.
Reversed with directions.
Subjects: Property tax; Fairbanks North Star Borough (Alaska); Tanana Chiefs Conference, Inc.; Charities; Lawyers -- Fees.
*Synopsis: Native nonprofit corporation appealed decision of borough assessor denying charitable-purpose tax exemption for various properties. The Superior Court, Fourth Judicial District, Fairbanks, Richard D. Savell, J., reversed, holding six properties where wholly or partially exempt. Parties appealed.
*Holding:
The Supreme Court, Eastaugh, J., held that:
(1) services provided by corporation on subject property were for charitable
purpose;
(2) assessor did not err in determining that village government services and
credit and finance activities on property were not for charitable purpose;
(3) spatial apportionment of floor of building was not error; and
(4) method of calculating award of attorney fees was fair.
Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Tribal members; Non-members of a tribe; Non-Indians; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Jurisdiction -- Sac & Fox Tribe of the Mississippi in Iowa.
*Synopsis: After termination of parental rights of Indian mother and non- Indian father as to first child, and during pendency of State's petition to terminate parental rights as to parents' second child, Indian tribe filed motion to intervene in both termination cases. The District Court, Marshall County, Victor G. Lathrop, Associate Juvenile Judge, denied motion. Indian Tribe appealed.
*Holding: The Court of Appeals, Zimmer, J., held that: (1) when Indian tribe has statutory right of intervention under Indian Child Welfare Act (ICWA), state-law doctrines of estoppel may not be applied to deprive it of that right, and (2) tribe failed to establish that children were eligible for tribal membership as would support determination that children were Indian children under ICWA.
Subjects: Paragon Casino Resort; Indian business enterprises -- Tunica-Biloxi Indian Tribe of Louisiana; Sovereign immunity -- Tunica-Biloxi Indian Tribe of Louisiana; Molds (Fungi); Tunica-Biloxi Construction Company; Hotels -- Design and construction.
*Synopsis: Employees of child care facility within tribe's casino resort, employees of casino, and parents of children at facility brought personal injury action against tribe, and various entities involved in construction of resort, arising from alleged injuries resulting from exposure to toxic mold. The Twelfth Judicial District Court, Parish of Avoyelles, No.2002-2905, William Bennett, J., granted motion to consolidate, granted tribe's exception to subject matter jurisdiction, and granted remaining defendants' exceptions of failure to join an indispensible party. Plaintiffs appealed.
*Holding: On grant of rehearing, the Court of
Appeal, Michael G. Sullivan, J., held that:
(1) tribe did not waive sovereign immunity to suit by a third party in
state court; (2) remaining defendants were joint and divisible obligors
in suit; (3) tribe was an indispensible party, and thus, dismissal against
remaining defendants was not error; and (4) plaintiffs failed to demonstrate
how consolidation would have prejudiced their rights or prevented a fair
trial. Affirmed.
Subjects: Kaw Nation, Oklahoma; Lawyers -- Fees; Sovereign immunity -- Kaw Nation, Oklahoma.
*Synopsis: Law firm brought action against indian tribe to collect attorney fees for acting as tribe's general counsel. The District Court, Oklahoma County, Carolyn R. Ricks, J., dismissed action. Law firm appealed.
*Holding: The Court of Civil Appeals, Larry Joplin, C.J., held that tribe had sovereign immunity from suit in state court. Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Michigan; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Shaken baby syndrome.
*Synopsis: Respondent-appellant appeals as of right from the circuit court order terminating his parental rights to the minor child. The circuit court did not clearly err in determining that at least one statutory ground for termination was established by clear and convincing evidence. The condition leading to adjudication was the parents' lack of a satisfactory explanation for the severe brain damage, blindness and other injuries the child suffered when severely shaken by an unknown perpetrator, which resulted in permanent, severe medical conditions that require round-the-clock monitoring. The condition to be rectified was not the child's injury, which would never be remedied, but respondent-appellant's inability to properly care for a child with such extreme medical needs and deficits, who requires constant monitoring.
*Holding: not available
Subjects: Mohegan Indian Tribe of Connecticut -- Membership; Tribal members -- Mohegan Indian Tribe of Connecticut; Jurisdiction; Sovereign immunity -- Mohegan Indian Tribe of Connecticut.
*Synopsis: Alleged member of Indian tribe brought action against tribe members, asserting that alleged member was in fact a member of tribe. The Superior Court, Judicial District of New Haven, Blue, J., granted defendant's motion to dismiss. Alleged member appealed.
*Holding: The Appellate Court, DiPentima, J., held that: (1) alleged member's failure to comply with statute governing tribal membership disputes resulted in trial court lacking subject-matter jurisdiction, and (2) alleged member's claims against tribe for damages were barred by doctrine of sovereign immunity. Affirmed.
Subjects: Alaska Railroad Corporation; Eklutna Native Village; Sacred sites -- Anchorage (Alaska); Sand and gravel plants -- Licenses; Anchorage (Alaska).
*Synopsis: Native village sought to enjoin state railroad's quarry operation on culturally significant land, and municipality intervened as plaintiff, with both plaintiffs objecting that railroad had failed to obtain conditional use permit in violation of municipal zoning ordinance. The Superior Court, Third Judicial District, Anchorage, Mark Rindner, J., denied injunction and entered judgment in favor of railroad. Native village appealed and municipality cross-appealed.
*Holding: The Supreme Court, Fabe, C.J., held
that:
(1) state legislature did not clearly express intent to exempt state railroad
from local zoning laws;
(2) as matter of first impression, "balancing of interests"
test was proper test for determining whether legislature intended such
exemption;
(3) balancing test would not be applied until railroad made good faith
effort to comply with local regulations; and
(4) Interstate Commerce Commission Termination Act (ICCTA) did not preempt
such local regulations.
Reversed and remanded.
Subjects: Oneida Nation of New York -- Members; Harassment -- On or near Indian reservations -- Oneida Nation of New York; Tribal courts -- Oneida Nation of New York; Municipal courts -- Oneida (N.Y.).
*Synopsis: (from the opinion) On July 11, 2002 petitioner, a member of the Oneida Indian Nation, was charged in Oneida City Court with the crime of harassment in the second degree. The charge arose out of an altercation between petitioner and another Oneida Indian that took place on Indian Nation property. While that charge was pending, a criminal complaint was filed against petitioner in the Nation tribal court charging petitioner with assault, harassment and disorderly conduct arising out of the same transaction giving rise to the City Court charge.
*Holding: not available
Subjects: Workers' compensation; Paragon Casino Resort (La.); Jurisdiction -- Louisiana; Louisiana. Office of Worker's Compensation Administration.
*Synopsis: (from the opinion) This case involves the issue of whether the Office of Workers' Compensation has subject matter jurisdiction to hear a claim filed by an employee of the Tunica Biloxi Indians of Louisiana d/b/a Paragon Casino. Finding that this specific issue has been recently addressed by this court, we affirm.
*Holding: not available
Subjects: Workers' compensation; Paragon Casino Resort (La.); Jurisdiction -- Tunica-Biloxi Indian Tribe of Louisiana; Sovereign immunity -- Tunica-Biloxi Indian Tribe of Louisiana.
*Synopsis: (from the opinion) The plaintiff, Pamela Bordelon, appeals the judgment of the workers' compensation judge granting an exception of subject matter jurisdiction in favor of the defendant, Tunica Biloxi Indian Tribe of LA, d/b/a Paragon Casino and Resort, dismissing her workers' compensation claim with prejudice. Tunica Biloxi filed the exception claiming that it was immune from suit in the Louisiana Department of Labor, Office of Workers' Compensation, due to its sovereign status as an Indian nation.
*Holding: The judgment of the workers' compensation judge granting Tunica Biloxi's exception of lack of subject matter jurisdiction is affirmed. The costs of this matter are assessed to the plaintiff-appellant, Pamela Bordelon. Affirmed.
Subjects: Workers' compensation claims; Jursidiction -- Louisiana; Paragon Casino Resort -- Tunica-Biloxi Indian Tribe of Louisiana; Sovereign immunity -- Paragon Casino Resort; Louisiana. Dept. of Labor; Indian gaming; Gambling on Indian reservations.
*Synopsis: (from the opinion) In this workers' compensation case, Defendant filed an exception of lack of subject matter jurisdiction, claiming that it was immune from suit in the Louisiana Department of Labor, Office of Workers' Compensation, due to its sovereign status as an Indian nation. The workers' compensation judge sustained the exception and dismissed Plaintiff's suit. After reviewing the law and the evidence, we conclude that the issues in this case are essentially identical to those in our recent decision of Ortego v. Tunica Biloxi Indians of La. d/b/a Paragon Casino, 03-1001 (La.App. 3 Cir. 2/4/04), --- So.2d ----. Finding Ortego controlling, we affirm the dismissal of Plaintiff's suit.
*Holding: The judgment of the Office of Workers' Compensation granting Defendant's exception of lack of subject matter jurisdiction is affirmed. Costs of this appeal are assessed to Plaintiff-Appellant, Laura Stelly. Affirmed.
Subjects: Agua Caliente Band of Cahuilla Indians of the Agua Caliente Indian Reservation, California; California. Fair Political Practices Commission; California. Political Reform Act of 1974; Campaign funds; Jurisdiction -- California; Sovereign immunity -- Agua Caliente Band of Cahuilla Indians of the Agua Caliente Indian Reservation, California.
*Synopsis: The Fair Political Practices Commission sued an Indian tribe to force it to comply with reporting requirements for campaign contributions contained in the Political Reform Act. The tribe filed a motion to quash service of summons for lack of personal jurisdiction, on the ground that it was immune from suit under the doctrine of tribal sovereign immunity. The Superior Court, Sacramento County, Loren E. McMaster, J., denied the tribe's motion. The tribe filed a petition for writ of mandate, and the Court of Appeal denied the petition. The California Supreme Court granted the tribe's petition for review and transferred the matter to the Court of Appeal.
*Holding: The Court of Appeal, Sims, J., held that: the state, through the Fair Political Practices Commission, could rely on the constitutional Guarantee Clause, together with the state's reserved right under Tenth Amendment, to bring suit against the tribe. Petition denied.
Related news stories: State Can Sue Tribes, Court Rules (LA Times) 03/04
Subjects: Quiet title actions; Real property -- On Indian reservations; Indian allotments -- Warm Springs Reservation, Confederated Tribes of the, Oregon; Tribal courts.
*Synopsis: Plaintiffs brought action to quiet title to real property located on Indian reservation. The Circuit Court, Jefferson County, Gary S. Thompson, J., granted defendants' motion for directed verdict against plaintiffs' adverse possession claim, and granted summary judgment for defendants with regard to plaintiffs' claim seeking full faith and credit to a judgment by tribal court regarding the property. Plaintiffs appealed.
*Holding: The Court of Appeals, Wollheim, J., held that: (1) failure to include notice of tribal court's proceedings in the appellate record prevented finding that trial court erred, and (2) plaintiffs' argument regarding claim of adverse possession was expressly waived by plaintiffs in trial court. Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Nebraska; Indian children -- Legal status, laws, etc.; Child welfare; Nebraska. Nebraska Indian Child Welfare Act; Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota.
*Synopsis: (from the opinion) Robin C. appeals from the decision of the county court for Scotts Bluff County, Nebraska, sitting as a juvenile court, which terminated her parental rights to her three children under the Nebraska Indian Child Welfare Act. For the reasons set forth herein, we affirm.
*Holding: The court holds that while the juvenile court did err by failing to properly apply § 43-1505(4), that error was harmless because there was sufficient evidence presented to show that "active efforts" were taken to prevent the breakup of Robin's family. Further, we find that sufficient evidence was presented to terminate Robin's parental rights, and we affirm the decision of the juvenile court.
Subjects: New York Herald Company; Newspapers -- New York; New York State Racing and Wagering Board; Indian gaming; Gambling on Indian Reservations; United States. Indian Gaming Regulatory Act; Freedom of information -- New York; Oneida Nation of New York; Casinos -- Oneida Nation of New York.
*Synopsis: Newspaper petitioned for review of a final determination of Racing and Wagering Board to deny its Freedom of Information Law (FOIL) request, and sought order requiring production of daily inspection reports and patron complaints collected by the Board from Indian gaming commission with regard to casino governed by tribal-state gaming compact pursuant to Indian Gaming Regulation Act (IGRA). Board filed cross-motion to dismiss the petition.
*Holding:The Supreme Court, New York County,
Ronald A. Zweibel, J., held that:
(1) Board was plainly an "agency" under FOIL, and inspection
reports and patron complaints filed with it were clearly "records"
under FOIL;
(2) state or federal statute exemption of FOIL did not apply to Board's
denial of newspaper's information request;
(3) possibility that Board's release of reports and complaints would violate
tribal-state gaming compact did not support Board's denial of newspaper's
request for records under FOIL;
(4) federal preemption doctrine did not prevent Board's compliance with
FOIL;
(5) tribal nation's absence from action did not require dismissal of action
for failure to join indispensible party; and
(6) newspaper was not entitled to attorney fees, given that record did
not demonstrate that Board lacked reasonable basis to withhold documents.
Petition granted; defendant's motion denied.
Subjects: Parent and child (Law); Trials (Custody of children) -- Kansas; Indian children -- Legal status, laws, etc.; Non-Indians; Child welfare; United States. Indian Child Welfare Act of 1978.
*Synopsis: After child in need of care (CINC) petition was filed for minor child of mother, who was member of Indian tribe, and father, who was non- Indiana, the District Court, Sedgwick County, Timothy H. Henderson, J., terminated father's parental rights. Father appealed.
*Holding: The Court of Appeals, Greene, P.J., held that: (1) literal compliance with requirement under Indian Child Welfare Act (ICWA) that Tribe be given notice of termination of parental rights of non- Indian father was not necessary; (2) literal compliance with evidentiary requirement under ICWA that parental termination be supported by evidence beyond reasonable doubt was unnecessary; (3) fact that father's multiple convictions for rape and sexual exploitation of his own daughter had not yet been affirmed on appeal, did not prevent convictions from serving as presumptive evidence that father was unfit for parenthood; and (4) even if father's incarceration prevented him from attending parenting classes, or maintaining visitation, termination of father's parental rights was justified for numerous reasons that were supported by substantial competent evidence. Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- Texas; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; New trials; Comanche Nation, Oklahoma (formerly the Comanche Indian Tribe).
*Synopsis: In post-judgment child custody dispute paternal grandparents were appointed sole managing conservators of child. Indian tribe and mother intervened and moved for new trial alleging transfer to tribal court was required under Indian Child Welfare Act. The County Court at Law No. 1, Williamson County, Kevin Henderson, J., denied motions. Tribe and mother appealed.
*Holding: The Court of Appeals, Bea Ann Smith, J., held that:
(1) mother satisfied "mistake" element of new trial test;
(2) mother satisfied meritorious defense element of new trial test;
(3) mother demonstrated new trial would not result in delay or injure
grandparents;
(4) Indian tribe satisfied elements of new trial test; and
(5) Indian Child Welfare Act did not apply to child custody modification
proceedings.
Reversed and remanded for new trial.
Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Cherokee Indians; Heritage.
*Synopsis: State filed petition to terminate mother's parental rights with respect to her two minor children. The District Court, Polk County, William Price, J., granted petition, and mother appealed.
*Holding: The Court of Appeals, Vogel, J., held that trial court was required to follow strict notice requirements of federal and state Indian Child Welfare Acts (ICWA). Reversed and remanded.
Subjects: Workers' compensation claims -- Tunica-Biloxi Indian Tribe of Louisiana; Casinos -- Accidents -- Tunica-Biloxi Indian Tribe of Louisiana; Jurisdiction -- Tribal courts; Jurisdiction -- Louisiana.
*Synopsis: Casino employee filed a disputed-claim form contesting termination of workers' compensation benefits by Native American Tribe that owned casino. The Office of Workers' Compensation No. 2, Parish of Rapides, James L. Braddock, Workers' Compensation Judge, granted Tribe's exception of lack of subject matter jurisdiction, and employee appealed.
*Holding: The Court of Appeal, Marc T. Amy, J., held that: (1) Tribe did not waive its sovereign immunity over workers' compensation claims as a result of silence in compact between Tribe and State of Louisiana regarding workers' compensation claims; (2) compact between the Tribe and the State did not evince an intent to waive sovereign immunity over workers' compensation claims; (3) ordinance passed by the Tribe regarding its intention to exercise jurisdiction over workers' compensation claims did not have to be signed by Tribal chairman and Governor of Louisiana, and approved by Secretary of the Interior, in order to be effective; and (4) workers' compensation claim would be dismissed on ground of sovereign immunity rather than exhaustion of Tribal remedies. Affirmed.
Supreme Court of Alaska, January 30 , 2004
Subjects: Foreclosure; Alaska Native Tribal Health Consortium; Alaska; Alaska Natives -- Hospitals; Alaska Natives -- Medical care; Lawyers -- Fees; Third parties (Law).
*Synopsis: Tribal organization, which operated hospital that treated Alaskan natives for free, brought action seeking to foreclose on health care provider liens against settlement funds received by patients who were treated by hospital, and patients' attorneys sought to have organization's lien recovery reduced by percentage in contingency fee agreements with patients. The Superior Court, Third Judicial District, Anchorage, John Reese and Eric T. Sanders, JJ., allowed organization to foreclose on liens, but reduced lien amounts for attorney fees.
*Holding: On cross-appeals, the Supreme Court,
Fabe, J., held that:
(1) tribal organization was entitled to enforce health care provider liens;
(2) organization's notice of lien was sufficient;
(3) federal statute prohibiting state law from hindering the right of
recovery of a tribal organization did not apply to the reduction of lien
by a pro rata share of attorney fees; and
(4) organization was required to pay pro rata share of attorney fees from
lien funds. Affirmed.
Subjects: Association of Village Council Presidents; Sovereign immunity; Tribes -- Alaska; Torts; Head Start Program (U.S.) -- Alaska; Alaska Native students.
*Synopsis: Parents of two students brought tort actions against Association of Village Council Presidents (AVCP) to recover for students' injuries allegedly stemming from the inadequate training and supervision of Head Start teachers. The Superior Court, Fourth Judicial District, Bethel, Dale O. Curda, J., dismissed the claims based on sovereign immunity of member tribes. Parents appealed.
*Holding:The Supreme Court, Fabe, J., held that the AVCP was not entitled to the protection of member villages' tribal sovereign immunity. Reversed and remanded.
Subjects: North Dakota; Automobile drivers; Tribal members; Non-Indians; Traffic accidents -- Spirit Lake Tribe, North Dakota (formerly known as the Devils Lake Sioux Tribe); Traffic accidents -- On Indian reservations; Jurisdiction -- North Dakota; District courts -- North Dakota.
*Synopsis: Non-Indian motorist brought action against Indian motorist to recover for injuries sustained in automobile accident on state highway within exterior boundaries of Indian reservation. The District Court, Benson County, Northeast Judicial District, Lee A. Christofferson, J., dismissed action for lack of subject-matter jurisdiction. Non-Indian motorist appealed.
*Holding: The Supreme Court, Neumann, J., held that: (1) district court's judgment was appealable, even though action was dismissed without prejudice, and (2) district court did not have subject-matter jurisdiction over action. Affirmed.
Subjects: Assault and battery -- New Mexico; Taos (N.M.); Indian Country (New Mexico) -- Defined; Jurisdiction -- New Mexico; Tribal members -- Pueblo of Taos, New Mexico.
*Synopsis: Del E. Romero, was indicted by a Taos County grand jury on one count of aggravated battery, stemming from an incident at the Pueblo Allegre Mall in the town of Taos, New Mexico. Defendant moved to dismiss the charge against him on the ground that he is an Indian, that the Pueblo Allegre Mall is located in Indian country, and that New Mexico lacked subject matter jurisdiction to prosecute criminal charges against an Indian for an offense committed in Indian country. Defendant requested an evidentiary hearing on his motion to dismiss.
*Holding: The court holds that by operation of federal law, the land on which the alleged crime occurred is no longer Indian country, and that the State has jurisdiction to prosecute Defendant.
Related News Stories: Indian Country’ Rulings Create Jurisdiction Questions (Daily Times) 04/19
Subjects: Parent and child (Law); Trials (Custody of children) -- Minnesota; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Non-Indians; Jurisdiction -- Beltrami County (Minn.); Jurisdiction -- Red Lake Band of Chippewa Indians of the Red Lake Reservation, Minnesota.
*Synopsis: Non-Indian father filed motion for modification of custody, seeking sole legal and physical custody of Indian child, custody of whom had previously been awarded to Indian maternal grandmother. The District Court, Beltrami County, determined that it had jurisdiction over father's motion, and that the Indian Child Welfare Act (ICWA) did not apply. Grandmother appealed.
*Holding: The Court of Appeals, Gordon W. Shumaker, J., held that: (1) proceeding was not a child custody proceeding within meaning of ICWA; (2) district court, rather than tribal court, had exclusive jurisdiction over proceeding; and (3) mother was not an indispensable party. Affirmed.
Subjects: Fish populations -- Management -- Alaska; Ninilchik Village (AK); Eklutna Native Village; Knik Tribe; Kenaitze Indian Tribe (AK); Subsistence rights; Fishing rights; Hunting rights; Constitutional law.
*Synopsis: Indian tribes brought action challenging constitutionality of subsistence hunting and fishing statute, for declaration that state was not managing fish stocks in area in accordance with subsistence priority, and for injunction barring state from restricting ability to engage in subsistence uses of fish. The Superior Court, Third Judicial District, Anchorage, Dana Fabe, J., ruled that portions of statute were unconstitutional. On appeal, the Supreme Court reversed and remanded, 894 P.2d 632. After the Superior Court stayed the case for several years, the indian tribes moved for summary judgment on statutory claims. The Superior Court, Third Judicial District, Anchorage, Mark Rindner, J., entered judgment declaring portion of nonsubsistence area invalid and remainder valid. State appealed, and indian tribe cross-appealed.
*Holding: The Supreme Court, Eastaugh, J., held that: (1) Joint Boards of Fisheries and Game could draw starting boundaries of nonsubsistence areas before applying statutory criteria to identify those areas; (2) Joint Boards could include communities within large geographical area when applying criteria to identify nonsubsistence areas; (3) regulation's inclusion of two indian communities within nonsubsistence area was reasonable and not arbitrary; (4) regulation's inclusion of other indian community within nonsubsistence area was reasonable and not arbitrary; and (5) regulations inclusion of peninsula in nonsubsistence area was reasonable and not arbitrary. Affirmed in part, reversed in part.
Subjects: Snow removal -- Mashantucket Pequot Tribe of Connecticut; Roads -- Snow and ice control -- Mashantucket Pequot Tribe of Connecticut; Sovereign immunity -- Mashantucket Pequot Tribe of Connecticut; Contracts; Contractors; Negligence; Sovereign immunity; Jurisdiction -- Connecticut.
*Synopsis: Bus driver filed claim against contractor providing snow removal service on tribally owned parking lot for injuries sustained in slip and fall due to contractor's alleged negligence. The Superior Court, Judicial District of New London at Norwich, D. Michael Hurly, Judge Trial Referee, denied contractor's motion to dismiss. Contractor appealed.
*Holding: The Appellate Court, Peters, J., held that the tribal court did not have exclusive jurisdiction to adjudicate the negligence claim against contractor on basis of tribal sovereign immunity. Affirmed.
Subjects: Jurisdiction -- Washington; Muckleshoot Gaming Commission (Wash.) -- Employees; Jurisdiction -- Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Non-members of a tribe.
*Synopsis: The question here is whether a state court has jurisdiction over a claim arising out of the employment of a non Indian employee of the Muckleshoot Gaming Commission. Because the tribe exercised its sovereign authority over its relationship with its employees, state courts have no jurisdiction over this matter, and the trial court properly granted summary judgment to the defendants. The Gaming Commission grievance procedure is set forth in its personnel manual. Rodriquez believed he had been wrongly treated by Wong, and pursuant to the procedure in the manual, he filed a formal grievance alleging several instances of misconduct. The Commission's Grievance Committee held a hearing and issued a written report in which it found some, but not all, of Rodriquez's allegations had merit. The Committee referred the matter "to the Tribal Council for its review and action." The Tribal Council "decided to retain a Management Consultant to help resolve these difficulties."
*Holding: The Court of Appeals, Ellington, J., held that: (1) state lacked subject matter jurisdiction over action arising out of consensual employment relationship with Indian tribe; (2) state jurisdiction over action arising out of employment relationship with Indian tribe would impermissibly affect tribe's political integrity; and (3) state lacked concurrent jurisdiction with Indian tribe. Affirmed.
Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Agua Caliente Band of Cahuilla Indians of the Agua Caliente Indian Reservation, California.
*Synopsis: County department of health and human services petitioned to have two children of Indian ancestry placed in foster care. The Superior Court, San Diego County, Nos. NJ12496A/B, Harry M. Elias, J., ordered the children placed with their paternal grandmother. Indian tribe appealed.
*Holding: The Court of Appeal, O'Rourke, J., held that Indian tribe waived issue of children's placement with paternal grandmother, who was not Indian, but was employed by tribe and lived close to reservation. Affirmed.
Subjects: Motor fuels -- Taxation -- South Dakota; Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; South Dakota. Dept. of Revenue; Muddy Creek Oil and Gas; Tax refunds -- South Dakota.
*Synopsis: Gas corporation and its sole shareholder, an enrolled member of an Indian tribe, brought action against state Department of Revenue to protest state motor fuel tax imposed on corporation. The Circuit Court, Sixth Judicial Circuit, Hughes County, Steven L. Zinter, J., affirmed the Department's decision. Corporation and shareholder appealed. The Supreme Court, 2003 SD 21, 658 N.W.2d 395, reversed and remanded.
*Holding: On grant of application for rehearing, the Supreme Court, Konenkamp, J., held that: Fifteen-month limitations period imposed by motor fuel taxation scheme applied to claims for refund of motor fuel tax. Reversed and remanded as modified.
Related News Stories: Supreme Court Limits Fuel-tax Refunds (Rapid
City Journal) 01/09
http://www.rapidcityjournal.com/articles/2004/01/09/news/local/news04.txt
Subjects: Maine. Civil Rights Act; Trials (Trespass); Trials (Eviction); Jurisdiction -- Maine; Jurisdiction -- Tribal courts; Passamaquoddy Tribe of Maine; Pleasant Point Passamaquoddy Housing Authority (Me.).
*Synopsis: Alleged owner of private residence on Indian tribe's reservation brought claims against executive director of reservation's housing authority for violation of Maine Civil Rights Act, trespass, and illegal eviction, and executive director filed third-party complaint against the authority. The Superior Court, Washington County, Mead, J., granted authority's motion to dismiss the third-party complaint and sua sponte dismissed the underlying complaint based on failure to state a claim and lack of subject matter jurisdiction. Alleged owner appealed.
*Holding: The Supreme Judicial Court, Rudman, J., held that whether the action involved an internal tribal matter, so that state courts lacked subject matter jurisdiction, could not be resolved at motion to dismiss phase. Vacated and remanded.
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