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Shane Martin appealed an order denying his N.D.R.Civ.P. 60(b) motion for relief from default judgment. Martin was the biological father of Cheri Poitra's child, I.R.P. Martin and Poitra were unmarried tribal members of the Turtle Mountain Band of Chippewa. In August 2017, Poitra began receiving services from Bismarck Regional Child Support Unit (BRCSU). The State sought to establish a child support obligation from Martin and served him with a summons and complaint. Martin completed a financial affidavit and returned it to BRCSU on October 8, 2017, but did not file an answer or other responsive pleading. On November 7, 2017, the State filed a N.D.R.Ct. 3.2 motion for default judgment. More than 21 days had passed since Martin was served and he had appeared but had not filed an answer or other responsive pleading. On November 17, 2017, Martin filed a notice of special appearance. The notice of special appearance did not contain an accompanying affidavit, motion, request for action, or response to the allegations. Instead, the notice stated only that Martin's attorney was entering a special appearance to contest "both subject matter and personal jurisdiction." Included with the notice was a copy of a summons and a petition for custody filed by Martin with the Turtle Mountain Tribal Court on November 16, 2017. A hearing on the "notice of special appearance" was held January 2018. During the hearing, the district court stated numerous times that the notice was not a motion on which the court could act and instructed Martin to file a motion. In February, 2018, the district court entered its findings of fact, conclusions of law, and order for judgment finding Martin in default. Judgment was entered February 21, 2018. Martin argues that his return of the financial affidavit and filing of a notice of special appearance was sufficient to preclude a default judgment under N.D.R.Civ.P. 55(a) and thus the district court erred in denying his Rule 60(b) motion. The North Dakota Supreme Court affirmed: the district court did not err in denying a Rule 60(b) motion for relief from judgment where Martin was properly provided notice and served with the motion for default judgment. View "North Dakota v. Martin" on Justia Law

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The Supreme Court affirmed the trial court’s judgment in favor of Arizona Snowbowl Resort Limited Partnership (Snowbowl) and the City of Flagstaff on the public nuisance claim brought by the Hopi Tribe, holding that environmental damage to public land with religious, cultural or emotional significance to the plaintiff is not special injury for purposes of the public nuisance doctrine. The Tribe brought a claim of public nuisance based on Snowbowl's use of reclaimed wastewater for snowmaking on Northern Arizona’s San Francisco Peaks. At issue was whether the Hopi sufficiently alleged a “special injury” for an actionable public nuisance claim. The Tribe alleged that it would suffer special injury by the interference with the Tribe’s cultural use of the public wilderness for religious and ceremonial purposes. The trial court ruled that the Tribe failed to satisfy the special injury requirement on the basis of religious or cultural practices. The Supreme Court agreed, holding that while the Tribe sufficiently alleged that the use of reclaimed wastewater on the San Francisco Peaks constituted a public nuisance the Tribe failed to articulate any harm beyond that suffered by the general public. View "Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership" on Justia Law

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The Supreme Court affirmed the dispositional order terminating Father’s parental rights of his four-year-old son (Child) in this Indian Child Welfare Act case, holding that there was no trial court error in terminating Father’s parental rights. In terminating Father’s parental rights, the trial court found that Father failed to act as a caregiver to Child and that his and Mother’s continued custody of Child would likely resolution in serious emotional or physical damage to them. In addition, the court concluded that active efforts were made to prevent the breakup of the family but were unsuccessful and that termination of all parental rights was the least restrictive alternative in the children’s best interests. The Supreme Court affirmed, holding (1) Father's argument that the South Dakota Department of Social Services failed to make active efforts to prevent the breakup of his Indian family was without merit; and (2) therefore, the trial court properly terminated Father’s parental rights. View "In re Interest of M.D." on Justia Law

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In vacating the adoption decree in this case, the Supreme Court addressed the proper interpretation of the relevant adoption statutes, as well as the Nebraska Indian Child Welfare Act (NICWA), and whether Father abandoned his child, holding that the county court erred when it failed to comply with Neb. Rev. Stat. 43-107 to 43-109 when granting the adoption. On remand from the Supreme Court, the county court found that the petitioning grandparents (Grandparents) had made active efforts to prove remedial programs designed to unite Father with his Indian child under section 43-1505(4) and that Father had abandoned his child. The Supreme Court affirmed in part and vacated in part the adoption decree, holding (1) the county court did not err in finding by clear and convincing evidence that Grandparents made active efforts to reunite the child with Father, in finding that Father abandoned his child for at least six months prior to his incarceration, and in finding that adoption was in the child’s best interest; but (2) the county court erroneously failed to comply with sections 43-107 to 43-109 in granting the adoption. View "In re Adoption of Micah H." on Justia Law

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The Supreme Court reversed the order of the district court terminating Mother’s parental rights to her two children, holding that the district court erred when it proceeded with termination of Mother’s parental rights before it had a conclusive determination of the children’s status in the Chippewa Cree Tribe and when it did not address whether the Department of Public Health and Human Services made “active efforts” to prevent the breakup of the Indian family and that those efforts were unsuccessful. Specifically, the Court held (1) where the district court had reason to believe that the children may be eligible for enrollment in the Chippewa Cree Tribe, the court failed to satisfy the threshold requirement of the Indian Child Welfare Act to verify the children’s eligibility; (2) the district court did not err when it did not address whether the Department provided “active efforts” pursuant to 25 U.S.C. 1912(d); and (3) Mother’s due process were not violated when the Department raised the issue of abandonment during closing arguments at the termination hearing and Mother’s counsel did not object. View "In re L.A.G." on Justia Law

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Mother and Father appealed the juvenile court's order terminating their parental rights to their children. The Court of Appeal held that the juvenile court had jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) after a Nevada juvenile court declined to exercise jurisdiction. The court conditionally reversed and remanded, holding that the investigation required by the Indian Child Welfare Act (ICWA) was not complete. In this case, HSA conceded that it had not substantially complied with the ICWA notice requirements, the order terminating parental rights should be vacated, and reversal was required to determine the applicability of the ICWA. View "In re E.R." on Justia Law

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Plaintiff filed suit against a police officer and a towing company after the officer seized plaintiff's truck on the Lummi reservation. Plaintiff was stopped by Lummi police and marijuana was found in his truck. The officer cited a violation of tribal drug laws and issued a notice of forfeiture and took possession of the truck. The Ninth Circuit affirmed the district court's grant of summary judgment against plaintiff because plaintiff failed to exhaust his tribal remedies against the towing company. Applying principles of comity, the panel held that the Lummi Tribal Court must be given the opportunity to first address the question of whether tribal jurisdiction exists. The panel held that the district court properly substituted the United States as a party for the tribal police officer pursuant to the Westfall Act, and that plaintiff failed to exhaust his administrative remedies against the United States pursuant to the two-step test in Shirk v. U.S. ex rel. Dep't of Interior, 773 F.3d 999, 1006 (9th Cir. 2014), which determined whether a tribal employee could be deemed a federal Bureau of Indian Affairs employee for the purposes of Federal Tort Claims Act liability. Finally, the panel vacated the district court's dismissal and remanded with instructions to dismiss the action without prejudice to refiling after plaintiff has exhausted the appropriate remedies. View "Wilson v. Horton's Towing" on Justia Law

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A mother appealed the termination of her parental rights to her son, an Indian child. She argued the trial court violated the Indian Child Welfare Act (ICWA) by finding that the Office of Children’s Services (OCS) made active efforts and that her continued custody of her son was likely to result in serious emotional or physical damage to him. She also argued that the trial court’s latter finding was not supported by the testimony of a qualified expert as required by ICWA. After review, the Alaska Supreme Court affirmed the trial court’s order terminating her parental rights because its findings satisfied ICWA’s requirements. View "Demetria H. v. Alaska, Dept. of Health & Social Services, Office of Children's Services" on Justia Law

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Huber runs a sole proprietorship out of her home, selling cigarettes at retail and wholesale. After 2007 she sold exclusively Native American brands: “cigarettes manufactured by Indians on Indian lands, . . . shipped and sold through Indian and tribally-owned distributors to Indian and tribally-owned retail smokeshops located on Indian lands.” Customers include tribe members and nonmembers. The wholesale component of the enterprise is with “over two dozen Indian smokeshops owned either by Indian tribes or [i]ndividual tribal members and operated within [other] . . . recognized Indian reservation[s].” Deliveries are made to “inter-tribal” customers by truck, using California highways. Huber is licensed to do business under the Wiyot Tribal Business Code and the Wiyot Tribal Tobacco Licensing Ordinance. The trial court entered a summary adjudication order and permanent injunction in an enforcement action by the Attorney General for violation of the Unfair Competition Law, Business and Professions Code section 17200 (UCL), the Tax Stamp Act (Rev. & Tax. Code, 30161), the Directory Act (Rev. & Tax. Code, 30165.1(e)(2)), and the Fire Safety Act (Health & Saf. Code 14951(a)). The court of appeal reversed in part, finding that, under a federal statute, 28 U.S.C. 1360, granting California courts plenary criminal jurisdiction but limited civil jurisdiction over cases arising on Indian reservations, the trial court lacked power to proceed on the UCL claims in this case. The court otherwise affirmed. View "People v. Huber" on Justia Law

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After attempting to persuade the Tribe to pay him for services provided under construction and rental agreements, Findleton requested that the Tribe mediate and arbitrate pursuant to clauses in the agreements. The Tribe failed to respond. Findleton filed a petition in March 2012, in the Mendocino County Superior Court to compel mediation and arbitration. The court held the Tribe had not waived its sovereign immunity. The Tribe sought attorney fees it had incurred in defending against Findleton’s petition, which the superior court granted. The court of appeal remanded, finding the Tribe had waived its sovereign immunity, reversing the award of fees. On remand, Findleton again filed a petition to compel mediation and arbitration and sought contractual attorney fees he had incurred in the prior appellate proceedings. The Tribe did not oppose the fee motion on the merits but requested that the court defer ruling until the Tribe filed a demurrer challenging the court’s jurisdiction. The superior court rejected that request and granted Findleton’s motion, awarding costs ($4,591.79) and attorney fees ($28,148.75). The court of appeal affirmed. The Tribe has not demonstrated that tribal remedy exhaustion was required here nor would requiring exhaustion at this late date serve any purpose other than further delay of a case that is already six years old. View "Findleton v. Coyote Valley Band of Pomo Indians" on Justia Law