Justia Native American Law Opinion Summaries

The Eighth Circuit reviewed a case for the second time regarding “whether a South Dakota tax on nonmember activity on the Flandreau Indian Reservation (the Reservation) in Moody County, South Dakota is preempted by federal law. On remand, and after a six-day video bench trial, the district court entered judgment in favor of the Tribe, concluding again that federal law preempts the imposition of the tax.   The Eighth Circuit reversed and remanded. The court explained that in light of guideposts from the Supreme Court, even with the evidence that the district court heard at trial, the court cannot conclude that the federal regulation in IGRA regarding casino construction is extensive. The court reasoned that even with a more factually developed record than the court considered on summary judgment, the Bracker balancing test does not weigh in favor of preemption under IGRA because the extent of federal regulation over casino construction on tribal land is minimal, the impact of the excise tax on the tribal interests is minimal, and the State has a strong interest in raising revenue to provide essential government services to its citizens, including tribal members. The district court thus erroneously entered judgment in favor of the Tribe based on IGRA’s preemption of the excise tax. View "Flandreau Santee Sioux Tribe v. Michael Houdyshell" on Justia Law

Appellant appealed from juvenile dependency jurisdiction and disposition orders concerning his daughter. The juvenile court removed Daughter from her parents’ custody; ordered Daughter suitably placed; denied Mother reunification services pursuant to Welfare and Institutions Code section 361.5, subdivisions (b)(10)-(11); and granted reunification services for Father. Father appealed the jurisdiction findings and disposition order. The sole issue raised in his opening brief was whether the Los Angeles County Department of Children and Family Services (the Department) complied with its obligations under the Indian Child Welfare Act (ICWA) and related California law.   The Second Appellate District dismissed the appeal finding that it is moot. The court explained that two courts have recently held—in appeals from orders terminating parental rights—that additional ICWA-related inquiry or notice efforts by a juvenile court or child welfare agency while a case is on appeal will not moot deficiencies in an ICWA inquiry at the time a notice of appeal is filed. However, the opinions do not concern the procedural posture here: an ICWA appeal at the jurisdiction and disposition stage where there will necessarily be further dependency proceedings in the juvenile court (at which continuing ICWA duties apply) and a basis for a later appeal if for some reason the remedial ICWA investigation the Department is now undertaking falls short in Father’s view. The juvenile court must direct that process, at least in the first instance. View "In re Baby Girl M." on Justia Law

The State of Alaska claimed the right under Revised Statute 2477 (RS 2477) to clear land and permit the use of boat launches, camping sites, and day use sites within an alleged 100-foot right of way centered on a road on land belonging to an Alaska Native corporation. The Native corporation sued, arguing that its prior aboriginal title prevented the federal government from conveying a right of way to the State or, alternatively, if the right of way existed, that construction of boat launches, camping sites, and day use sites exceeded its scope. After years of litigation and motion practice the superior court issued two partial summary judgment orders. It held as a matter of law that any preexisting aboriginal title did not disturb the State’s right of way over the land. It also concluded as a matter of law that the right of way was limited to ingress and egress. Because the superior court did not err when it granted the State’s motion regarding aboriginal title, the Alaska Supreme Court affirmed that grant of partial summary judgment. But because the scope of a particular RS 2477 right of way was a question of fact, the Supreme Court reversed the trial court's conclusion as a matter of law that the State’s right of way was limited to ingress and egress. View "Ahtna, Inc. v. Alaska Department of Transportation & Public Facilities, et al." on Justia Law

Petitioner-appellant Delila Pacheco was convicted in Oklahoma of first-degree child-abuse murder. She petitioned for relief to the United States District Court for the Eastern District of Oklahoma, filing an application under 28 U.S.C. § 2254. While her application was pending, the Tenth Circuit Court of Appeals decided Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), holding that a large portion of the State of Oklahoma was “Indian country” for purposes of the Major Crimes Act, which provided for exclusive federal jurisdiction over certain enumerated crimes committed by Indians in “Indian country.” Pacheco, an Indian found to have committed a serious crime at a location since determined to be on an Indian reservation, sought to amend her application to assert a claim that the state courts lacked jurisdiction over the offense. The district court denied the request to amend on the ground that the new claim was time-barred. The Tenth Circuit granted a certificate of appealability (COA) on this issue. Pacheco argued on appeal: (1) that the time bar to her jurisdictional claim should be excused under the actual-innocence exception; and, alternatively, (2) that the statute of limitations reset when the Supreme Court declared the underlying law in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), rendering timely her request to amend. The Tenth Circuit affirmed the district court, finding Pacheco’s jurisdictional argument did not show actual innocence, and McGirt did not announce a new constitutional right. View "Pacheco v. El Habti" on Justia Law

As relevant here, a trial court has reason to know that a child is an Indian child when “[a]ny participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.” In this dependency and neglect case, the juvenile court terminated Mother’s parental rights with respect to E.A.M. Mother appealed, complaining that the court had failed to comply with Indian Child Welfare Act (“ICWA”) by not ensuring that the petitioning party, the Denver Human Services Department (“the Department”), had provided notice of the proceeding to the tribes that she and other relatives had identified as part of E.A.M.’s heritage. The Department and the child’s guardian ad litem responded that the assertions of Indian heritage by Mother and other relatives had not given the juvenile court reason to know that the child was an Indian child. Rather, they maintained, such assertions had merely triggered the due diligence requirement in section 19-1-126(3), and here, the Department had exercised due diligence. A division of the court of appeals agreed with Mother, vacated the termination judgment, and remanded with directions to ensure compliance with ICWA’s notice requirements. The Colorado Supreme Court reversed, finding that "mere assertions" of a child's Indian heritage, without more, were not enough to give a juvenile court "reason to know" that the child was an Indian child. Here, the juvenile court correctly found that it didn’t have reason to know that E.A.M. is an Indian child. Accordingly, it properly directed the Department to exercise due diligence in gathering additional information that would assist in determining whether there was reason to know that E.A.M. is an Indian child. View "Colorado in interest of E.A.M. v. D.R.M." on Justia Law

The Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation have a cross-deputization agreement with the State of Montana under which the Tribes have agreed to commission state police to act as tribal police where there is a gap between their respective criminal jurisdictions. Defendant challenges the validity of the cross-deputization agreement, arguing that the Tribes lack the inherent sovereign authority to enter into a cross-deputization agreement with the State of Montana.   The Ninth Circuit affirmed the district court’s denial of Defendant’s motion to suppress evidence. The panel emphasized that the cross-deputization agreement deputizes state officers to enforce tribal law, not state law, and emphasized that Congress has expressly provided for the Tribes’ authority to enter into such compacts.   Defendant also argued that the Tribes explicitly conditioned the cross-deputization agreement on federal approval, which they did not receive. The panel did not read the agreement’s use of the word “approve” as giving the Bureau of Indian Affairs veto power over the agreement.   The panel wrote that even if the lack of a signature from the BIA representative on the 2003 amendment to the agreement impaired the validity of the amendment, it would not invalidate the trooper’s commissioned status. The panel wrote that the trooper’s failure to carry an identification card was plainly a violation of the agreement.  The panel noted, however, that none of the sovereign parties to the agreement appears to consider the violation sufficiently serious to seek any remedy for it. View "USA V. ERIC FOWLER" on Justia Law

The Ninth Circuit reversed the district court’s dismissal, for failure to state a claim, of the Metlakatlan Indian Community’s suit against Alaskan officials, claiming that an 1891 statute granted the Community and its members the right to fish in the off-reservation waters where they had traditionally fished and that they, therefore, were not subject to an Alaska statute’s limited entry program for commercial fishing in waters designated as Districts 1 and 2.   The panel held that the 1891 Act also granted to the Community and its members a nonexclusive right to fish in the off-reservation waters where they had traditionally fished. The panel applied the Indian canon of construction, which required it to construe the 1891 Act liberally in favor of the Community and to infer rights that supported the purpose of the reservation. The panel concluded that a central purpose of the reservation, understood in light of the history of the Community, was that the Metlakatlans would continue to support themselves by fishing. The panel, therefore, held that the 1891 Act preserved for the Community and its members an implied right to non-exclusive off-reservation fishing for personal consumption and ceremonial purposes, as well as for commercial purposes, within Alaska’s Districts 1 and 2, which encompassed waters included in the traditional fishing grounds of the Metlakatlans. View "METLAKATLA INDIAN COMMUNITY V. MICHAEL DUNLEAVY, ET AL" on Justia Law

J.T. (father) appealed a juvenile court’s order terminating his parental rights to Kenneth D. (minor) and adopting the recommended findings and orders of the Placer County Department of Health and Human Services (Department). Father’s contentions on appeal were limited to the Department’s and juvenile court’s compliance with the requirements of the federal Indian Child Welfare Act (ICWA), complaining the juvenile court and the Department failed to make the required initial inquiries of father’s ICWA status prior to finding the ICWA inapplicable and terminating his parental rights. Father also argued the Department’s investigation into mother’s possible Native American heritage was inadequate. He contended these errors were prejudicial requiring reversal and that posttermination ICWA inquiries did not cure the alleged noncompliance. To this, the Court of Appeal disagreed: Father did not show the juvenile court’s ICWA determination premised upon information provided by mother was unsupported by substantial evidence, and in light of the augmented record filed May 5, 2022, Father could not show the juvenile court’s and Department’s failure to initially comply with their ICWA duties was prejudicial. Accordingly, judgment was affirmed. View "In re Kenneth D." on Justia Law

J.V. (Father) appealed a Welfare and Institutions Code section 366.26 order terminating his parental rights to his then three-year-old daughter, Y.M. His sole contention was that the San Diego County Health and Human Services Agency (the Agency) did not comply with its initial duty to inquire regarding Y.M.’s possible Indian ancestry under section 224.2 (b), which implemented in part the federal Indian Child Welfare Act (ICWA). The Agency conceded that it did not comply with its duty of initial inquiry, but argued its error was harmless. Applying the standard set forth in In re Benjamin M., 70 Cal.App.5th 735 (2021), the Court of Appeal concluded the Agency's section 224.2 (b) initial inquiry error was not prejudicial. Accordingly, the Court affirmed the section 366.26 order. View "In re Y.M." on Justia Law

N.G. (Mother) appealed a juvenile court’s order terminating parental rights to her children, Ricky R. and Jayden R. Mother argued the Riverside County Department of Public Social Services (DPSS) failed to discharge its duty of initial inquiry under state law implementing the federal Indian Child Welfare Act of 1978 (ICWA). DPSS did not dispute that it failed to discharge its duty of initial inquiry, but it argued that the error was harmless. DPSS also moved to dismiss the appeal as moot on the basis of postjudgment evidence, and it asked the Court of Appeal to consider that evidence under several theories. After review, the Court concluded DPSS prejudicially erred by failing to comply with its duty of initial inquiry under ICWA-related state law. The Court also denied DPSS’s motion to dismiss the appeal and declined to consider the postjudgment evidence of ICWA inquiries conducted while this appeal was pending. To this end, the Court held the juvenile court should consider that evidence in the first instance and determine whether DPSS discharged its duties under ICWA and related state law. View "In re Ricky R." on Justia Law