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Plaintiff Fred Paquin served the Sault Ste. Marie Tribe of Chippewa Indians (the Tribe), a federally recognized Indian tribe whose territory was located within the geographic boundaries of Michigan, in two capacities: as the chief of police for the tribal police department and as an elected member of the board of directors, the governing body of the Tribe. In 2010, plaintiff pleaded guilty to a single count of conspiracy to defraud the United States by dishonest means in violation of 18 USC 371, for which he was sentenced to a year and a day in prison. The underlying conduct involved the misuse of federal funds granted to the tribal police department. In both 2013 and 2015, plaintiff sought to run for a position on defendant’s city council in the November general election. Plaintiff was rebuffed each time by defendant’s city manager, who denied plaintiff’s request to be placed on the ballot. In each instance, defendant’s city manager relied on Const 1963, art 11, sec. 8 to conclude that plaintiff’s prior felony conviction barred him from running for city council. Plaintiff brought the underlying declaratory action in the Mackinac Circuit Court, seeking a ruling that his position in tribal government did not constitute employment in “local, state, or federal government” under Const 1963, art 11, sec. 8. The Michigan Supreme Court determined that tribal government did not constitute "local...government." Accordingly, the Court reversed the Court of Appeals and remanded this matter back to the circuit court for further proceedings. View "Paquin v. City of St. Ignace" on Justia Law

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In these separate but consolidated appeals, the issue common to both cases presented to the Alaska Supreme Court for review centered on whether new federal regulations materially changed the qualifications required of an expert testifying in a child in need of aid (CINA) case involving children subject to the Indian Child Welfare Act (ICWA). To support the termination of parental rights, ICWA required the “testimony of qualified expert witnesses . . . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Under the new federal regulations, experts who formerly could be presumptively qualified, based on their ability to testify about prevailing cultural and social standards in the child’s tribe, for example, had to also be qualified to testify about the “causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding.” The Supreme Court concluded the federal regulations had materially changed an expert’s qualifications, and in these two cases, the challenged expert witnesses failed to satisfy this higher standard imposed by controlling federal law. For this reason the Alaska Supreme Court reversed the orders terminating the parents’ parental rights and remanded for further proceedings. View "L.B. (Mother) v Alaska, DHSS, OCS" on Justia Law

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This appeal arose from a suit brought by five Virginia residents against two business entities formed under tribal law. In the underlying action, the residents claimed that they obtained payday loans on the internet from Big Picture and that those loans carried unlawfully high interest rates. The district court held that the entities failed to prove that they were entitled to tribal sovereign immunity. The Fourth Circuit held that, although the district court properly placed the burden of proof on the entities claiming tribal sovereign immunity, the district court erred in its determination that the entities are not arms of the Lac Vieux Desert Band of the Lake Superior Chippewa Indians. Accordingly, the court reversed and remanded with instructions to dismiss the complaint View "Williams v. Big Picture Loans, LLC" on Justia Law

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Defendant Native Wholesale Supply Company (NWS), an Indian-chartered corporation headquartered on a reservation in New York, sold over a billion contraband cigarettes to an Indian tribe in California, which then sold the cigarettes to the general public in California. The cigarettes were imported from Canada, stored at various places in the United States (not including California), and then shipped to California after they were ordered from the reservation in New York. The California Attorney General succeeded on his motion for summary judgment holding NWS liable for civil penalties in violation of two California cigarette distribution and sale laws and Business and Professions Code section 17200 (the unfair competition law), and obtained a permanent injunction precluding NWS from making future sales. The Attorney General further obtained an award of attorney fees and expert expenses. NWS appealed the judgment and the attorney fee order. Finding no reversible error, the Court of Appeal affirmed. View "California v. Native Wholesale Supply Co." on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment against the Skokomish Tribe and in favor of respondents, in an action concerning which tribe had primary fishing rights within an already recognized "usual and accustomed" (U&A) territory. In United States v. Washington, Judge Boldt issued a permanent injunction, which granted tribal fishing rights, outlining the geography of the U&A locations of all the signatory tribes. The panel affirmed the district court's summary judgment order on the ground that the Skokomish failed to comply with the Boldt Decision's pre-filing jurisdictional requirements. The court held that a failure to abide by the pre-filing requirements was a failure to invoke the jurisdiction of this court. Therefore, the panel lacked the ability to proceed to the merits. View "Skokomish Tribe v. Jamestown S'Klallam Tribe" on Justia Law

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Marlon Comes appealed a district court’s second amended criminal judgment entered over twenty years after the original criminal judgment. In 1996, North Dakota charged Comes with murder (class AA felony) and robbery (class A felony). Comes pleaded guilty to both charges and the district court sentenced him on the murder charge to life imprisonment at the North Dakota Department of Corrections and Rehabilitation (“DOCR”) with the possibility of parole, and a concurrent 10 years for robbery, with 307 days credit for time served. Comes has filed several previous post-conviction relief petitions that were denied. In August 2018, the district court issued a memorandum of law and order for second amended judgment. No post-conviction relief petition was filed prompting the court’s action. While there was nothing in the record to reflect why the court acted, based on the court’s memorandum, the court was apparently responding to a request from DOCR for an amended judgment “that contains a calculation of [Comes’] life expectancy, in order for DOC[R] to determine when he becomes eligible for parole.” The court relied on a table specific to American Indian mortality rates to calculate Comes’ life expectancy of 52 years rather than following the mortality table promulgated by N.D. Sup. Ct. Admin. R. 51. The court’s second amended judgment indicates Comes must serve 44 years and 73 days, taking into account the credit for 307 days previously served. Because the North Dakota Supreme Court concluded the trial court abused its discretion in sua sponte amending the judgment without providing notice, the arguments Comes made regarding the propriety of the court’s application of N.D.C.C. 12.1-32-09.1, including its 1997 amendments, to his second amended judgment could be considered on remand once notice was provided to both parties. View "North Dakota v. Comes" on Justia Law

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Steve H. and Lucy A. were the parents of Donald, an Indian child2 born in April 2013. By the time Donald was born, Steve and Lucy were no longer in a relationship and Steve no longer lived in Anchorage. Donald lived with Lucy until the Office of Children’s Services (OCS) assumed emergency custody of him due to alcohol-related neglect shortly after he was born. Although Steve knew that Lucy had substance abuse problems, he left Donald in her care. When OCS took emergency custody of Donald in June 2013, Steve was “unreachable.” Donald was placed in a foster home. Steve appealed the superior court’s decision terminating his parental rights. He argued the superior court clearly erred in finding that he abandoned his son under the Child in Need of Aid (CINA) statutes. He also argued there was insufficient evidence to support termination, claiming that the record did not support the superior court’s findings that returning his son to his care would risk emotional or physical harm and that termination was in his son’s best interests. Because the superior court did not clearly err in making these findings, the Alaska Supreme Court affirmed the superior court’s decision. View "Steve H. v. Alaska, DHSS, OCS" on Justia Law

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The Ninth Circuit affirmed defendant's conviction for two counts of fleeing or attempting to elude a police officer in violation of Oregon Revised Statutes 811.540(1), as assimilated by 18 U.S.C. 13, the Assimilative Crimes Act (ACA), and 18 U.S.C. 1152, the Indian Country Crimes Act (ICCA). Defendant argued that the federal government lacked jurisdiction to prosecute him for his violation of state law in Indian country because the ACA does not apply to Indian country. The panel affirmed the conviction and held that the ACA applies to Indian country, based on the panel's own precedent and through the operation of 18 U.S.C. 7 and 1152. Furthermore, neither the ICCA nor the Major Crimes Act precluded the federal government from exercising its jurisdiction to prosecute defendant for his violations of section 811.540(1) under the ACA. Accordingly, the court upheld the district court's denial of defendant's motion to dismiss for lack of jurisdiction. View "United States v. Smith" on Justia Law

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The Supreme Judicial Court affirmed the judgment of the district court terminating the parental rights of Mother and Father to their child pursuant to Maine's Child and Family Services and Child Protection Act, 22 Me. Rev. Stat. 4001 to 4099-H, and the Indian Child Welfare Act (ICWA), 25 U.S.C.S. 1901-1963, holding that the district court did not err in terminating the parents' parental rights and denying their other requests for relief. Specifically, the Court held (1) the district court did not err by concluding that active efforts had been made to prevent the breakup of the Indian family, as required by ICWA; (2) the evidence was sufficient to support the court's determination that Mother was parentally unfit within the meaning of state law; (3) the district court did not err in denying Father's two motions to transfer the case to the Penobscot Nation Tribal Court; and (4) the district court did not err in denying Father's post-judgment motion alleging ineffective assistance of counsel. View "In re Child of Radience K." on Justia Law

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An 1868 treaty between the United States and the Crow Tribe promised that in exchange for the Tribe’s territory in modern-day Montana and Wyoming, its members would “have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon . . . and peace subsists,” 15 Stat. 650. In 2014, Wyoming charged Herrera with off-season hunting in Bighorn National Forest. The state court held that the treaty right expired upon Wyoming’s statehood and that, in any event, the national forest became categorically "occupied" when it was created. The Supreme Court vacated. Hunting rights under the Treaty did not expire upon Wyoming’s statehood. The crucial inquiry is whether Congress “clearly express[ed]” an intent to abrogate an Indian treaty right or whether a termination point identified in the treaty has been satisfied, The Wyoming Statehood Act does not clearly express an intent to end the Treaty's hunting right. There is no evidence in the Treaty that Congress intended the hunting right to expire at statehood, or that the Tribe would have understood it to do so. Bighorn National Forest did not become categorically “occupied” within the meaning of the Treaty when the national forest was created. Construing the treaty’s terms as “they would naturally be understood by the Indians,” the word “unoccupied” denoted an area free of residence or settlement by non-Indians. Nor would mining and logging of the forest lands before 1897 have caused the Tribe to view the Bighorn Mountains as occupied. The Court clarified that Bighorn National Forest is not categorically occupied, but that not all areas within the forest are necessarily unoccupied and did not address whether Wyoming could regulate the Treaty right “in the interest of conservation.” View "Herrera v. Wyoming" on Justia Law