by
In a proceeding to terminate parental rights that is governed by the Indian Child Welfare Act (ICWA) and the Minnesota Indian Family Preservation Act (MIFPA), qualified expert witness testimony is required to support the determination that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. The district court terminated the parental rights of Mother and Father, concluding that ICWA and MIFPA applied to the proceedings and that the laws’ requirements had been satisfied. The court of appeals reversed in part, holding that the district court erred in failing expressly to find under ICWA and MIFPA that continued custody of the child by the parent was likely to result in serious emotional or physical damage to the child. On appeal, the district court stated as much in a one-sentence addendum to its findings of fact and conclusions of law. The court of appeals affirmed the district court’s termination decision. The Supreme Court reversed in part, holding that the district court erred in terminating Father’s parental rights because the qualified expert witness’s testimony did not support the court’s determination that continued custody of the children by Father would likely result in serious damage to the children. View "In re Welfare of Children of S.R.K. & O.A.K." on Justia Law

by
After the Estom Yumeka Maidu Tribe of the Enterprise Rancheria asked the BIA to take a parcel of land into trust for them so that they could build a casino and hotel complex, the BIA agreed to the acquisition. Several entities, including the Cachil Dehe Band of Wintun Indians of the Colusa Indian Community and various citizens' groups and individuals filed suit seeking to enjoin the trust acquisition. On appeal, Citizens and Colusa raised numerous statutory, regulatory, and procedural challenges to the trust acquisition. The Ninth Circuit held, among other things, that Interior had the statutory authority under the Indian Reorganization Act to take land into trust for Enterprise; the Secretary properly considered Enterprise's "need" for the land; Interior's incorrect legal description of the parcel in the Federal Register was a trivial error; the panel rejected challenges based on the Indian Gaming Regulatory Act; and the panel rejected challenges to the National Environmental Policy Act. Accordingly, the panel affirmed the district court's grant of summary judgment for Enterprise. View "Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. Zinke" on Justia Law

by
The Tribe filed suit alleging that the Corps violated the Administrative Procedure Act (APA), the Clean Water Act (CWA), and the National Historic Preservation Act (NHPA) in issuing permit and exemption determinations to a real property owner. The permits and exemptions allowed the owner to construct a road by dredging and filling portions of Enemy Swim Lake. With one exception, the Eighth Circuit affirmed the district court's dismissal of the Tribe's claims. The court held that the 2010 letter issued by the Corp did not constitute a final agency action for purposes of the permit and exemption determinations, and that the Tribe's recapture claim was a nonjusticiable enforcement action; the Tribe was not eligible for equitable tolling in this case; the Corps did not act arbitrarily and capriciously by determining that the owner's 2009 project qualified for a nationwide permit; and the court did not have appellate jurisdiction to address the lawfulness of the Corps's NHPA regulations. View "Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. U.S. Corps of Engineers" on Justia Law

by
The Indian Gaming Regulatory Act allows a federally-recognized Indian tribe to conduct gaming on lands held in trust by the Secretary of the Interior for the tribe’s benefit, 25 U.S.C. 2710(b)(1), 2703(4)(B) if the lands had been taken into trust as of the Act’s effective date of October 17, 1988. The Act permits gaming on lands that are taken into trust after that date “as part of . . . the restoration of lands for an Indian tribe that is restored to Federal recognition” to ensure “that tribes lacking reservations when [the Act] was enacted are not disadvantaged relative to more established ones.” In 1992, the Mechoopda Tribe regained its federal recognition; 12 years later, the Tribe asked the Secretary to take into trust a 645-acre Chico, California parcel, so that the Tribe could operate a casino, arguing that the parcel qualified as “restored lands.” The Secretary agreed. Butte County, where the parcel is located, sued. The district court and D.C. Circuit upheld the Secretary’s decision, rejecting an argument that the Secretary erred by reopening the administrative record on remand. The court noted the Secretary’s findings concerning the Tribe’s historical connection to the land and whether current Tribe members were descendants of the historical Tribe and concluded that the Secretary’s substantive decision survives arbitrary-and-capricious review. View "Butte County, California v. Chaudhuri" on Justia Law

by
Harold Olson appealed a district court order affirming the North Dakota Department of Transportation's ("Department") revocation of his driving privileges for two years, following an arrest for driving under the influence. The revocation of driving privileges for refusal to submit to chemical testing requires a valid arrest; in the absence of authority from Congress, the State lacks criminal jurisdiction over crimes committed by non-member Indians on tribal land. Whether an officer has jurisdiction to arrest depends on the law of the place where the arrest is made. Olson argued the deputy lacked the authority to arrest him on tribal land and that a valid arrest was a prerequisite to revocation of his driving privileges. Absent a valid arrest, Olson argued the revocation order was not in accordance with the law. The North Dakota Supreme Court determined the deputy lacked authority to arrest Olson, a non-member Indian, on Mandan, Hidatsa and Arikara Nation tribal land. The Court therefore reversed the district court's order affirming the Department's revocation of Olson's driving privileges and reinstated Olson's driving privileges. View "Olson v. N.D. Dep't of Transportation" on Justia Law

by
Harold Olson appealed a district court order affirming the North Dakota Department of Transportation's ("Department") revocation of his driving privileges for two years, following an arrest for driving under the influence. The revocation of driving privileges for refusal to submit to chemical testing requires a valid arrest; in the absence of authority from Congress, the State lacks criminal jurisdiction over crimes committed by non-member Indians on tribal land. Whether an officer has jurisdiction to arrest depends on the law of the place where the arrest is made. Olson argued the deputy lacked the authority to arrest him on tribal land and that a valid arrest was a prerequisite to revocation of his driving privileges. Absent a valid arrest, Olson argued the revocation order was not in accordance with the law. The North Dakota Supreme Court determined the deputy lacked authority to arrest Olson, a non-member Indian, on Mandan, Hidatsa and Arikara Nation tribal land. The Court therefore reversed the district court's order affirming the Department's revocation of Olson's driving privileges and reinstated Olson's driving privileges. View "Olson v. N.D. Dep't of Transportation" on Justia Law

by
Patchak filed suit challenging the authority of the Secretary of the Interior to invoke the Indian Reorganization Act, 25 U.S.C. 5108, and take into trust the Bradley Property, on which the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians wished to build a casino. In an earlier decision, the Supreme Court held that the Secretary lacked sovereign immunity and that Patchak had standing. While the suit was on remand, Congress enacted the Gun Lake Act, 128 Stat. 1913, which “reaffirmed as trust land” the Bradley Property, and provided that “an action . . . relating to [that] land shall not be filed or maintained in a Federal court and shall be promptly dismissed.” The D.C. Circuit and the Supreme Court affirmed the dismissal of Patchak’s suit. Section 2(b) of the Gun Lake Act does not violate Article III of the Constitution. While Congress may not exercise the judicial power, it may make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side will win. Congress violates Article III when it “compel[s] . . . findings or results under old law,” but not when it “changes the law.” By stripping federal courts of jurisdiction over actions “relating to” the Bradley Property, section 2(b) changed the law and is a jurisdiction-stripping statute. When Congress strips federal courts of jurisdiction, it exercises a valid legislative power. View "Patchak v Zinke" on Justia Law

by
Parents appealed a superior court’s order that found the Office of Children’s Services (OCS) had satisfied the Indian Child Welfare Act’s (ICWA) requirements authorizing the removal of their daughter, an Indian child, from their custody. OCS took emergency custody of “Mary” and her older brother Claude in March 2014. It acted following a December 2013 report that Claude had been medivaced out of the family’s village due to alcohol poisoning and that his parents had been too intoxicated to accompany him, and a March 2014 report that Diego and Catharine were intoxicated and fighting in their home. OCS alleged in its emergency petition that the court should make child in need of aid (CINA) findings. At the custody hearing Diego and Catharine stipulated to probable cause that their children were in need of aid under AS 47.10.011, without admitting any of the facts alleged in the petition, and to temporary OCS custody pending an adjudication hearing. The superior court held a disposition hearing over two days in December and January. OCS argued for an order authorizing it to remove the children from their parents’ home; the parents urged the court to grant OCS only the authority to supervise the family. Because the Alaska Supreme Court found the trial court relied on information that was not in evidence to make the required ICWA removal findings, it vacated the order authorizing removal. View "Diego K. v. Dept. of Health & Social Services" on Justia Law

by
E.K. (Mother) appealed the termination of her parental rights as to her three children. A petition pursuant to Welfare and Institutions Code section 300 was filed in 2016, as to three minors, then age three years, two years, and 20 months, respectively. The children’s father, R.R., died of a heroin overdose a month prior. The petition alleged that mother was unable to provide adequate care for the children and endangered them as a result of her abuse of controlled substances and her untreated mental health issues. The petition was sustained on June 15, 2016, and reunification services were ordered. Mother had overdosed on heroin several times before the petition was filed. She overdosed again in August 2016. Ultimately, reunification services were terminated. The children were placed in a prospective adoptive home. Parental rights were terminated on October 2, 2017. Mother filed a timely notice of appeal on October 5, 2017. The sole issue Mother raised was lack of compliance with the Indian Child Welfare Act of 1978, or ICWA (25 U.S.C. 1901, et seq.), and with Welfare and Institutions Code sections 224 et seq. The Court of Appeal agreed with Mother’s contention, and conditionally reversed and remanded for compliance with those statutes. View "In re K.R." on Justia Law

by
Oklahoma and the Citizen Potawatomi Nation (the “Nation”) entered into a Tribal-State gaming compact; Part 12 of which contained a dispute-resolution procedure that called for arbitration of disagreements “arising under” the Compact’s provisions. The terms of the Compact indicated either party could, “[n]otwithstanding any provision of law,” “bring an action against the other in a federal district court for the de novo review of any arbitration award.” In Hall Street Associates, LLC. v. Mattel, Inc., 552 U.S. 576, (2008), the Supreme Court held that the Federal Arbitration Act (“FAA”) precluded parties to an arbitration agreement from contracting for de novo review of the legal determinations in an arbitration award. At issue before the Tenth Circuit Court of Appeals was how to treat the Compact’s de novo review provision given the Supreme Court’s decision in Hall Street Associates. The Nation argued the appropriate course was to excise from the Compact the de novo review provision, leaving intact the parties’ binding obligation to engage in arbitration, subject only to limited judicial review under 9 U.S.C. sections 9 and 10. Oklahoma argued the de novo review provision was integral to the parties’ agreement to arbitrate disputes arising under the Compact and, therefore, the Tenth Circuit should sever the entire arbitration provision from the Compact. The Tenth Circuit found the language of the Compact demonstrated that the de novo review provision was a material aspect of the parties’ agreement to arbitrate disputes arising thereunder. Because Hall Street Associates clearly indicated the Compact’s de novo review provision was legally invalid, and because the obligation to arbitrate was contingent on the availability of de novo review, the Tenth Circuit concluded the obligation to arbitrate set out in Compact Part 12 was unenforceable. Thus, the matter was remanded to the district court to enter an order vacating the arbitration award. View "Citizen Potawatomi Nation v. State of Oklahoma" on Justia Law