Justia Native American Law Opinion Summaries

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Wisconsin assessed property taxes on lands within four Ojibwe Indian reservations. The tribal landowners have tax immunity under an 1854 Treaty, still in effect, that created the reservations on which they live. Supreme Court cases recognize a categorical presumption against Wisconsin’s ability to levy its taxes absent Congressional approval. The parcels in question are fully alienable; their current owners can sell them at will because the parcels were sold by past tribal owners to non-Indians before coming back into tribal ownership. Wisconsin argued that the act of alienating reservation property to a non-Indian surrendered the parcel’s tax immunity. No circuit court has considered whether the sale of tax-exempt tribal land to a non-Indian ends the land’s tax immunity as against all subsequent tribal owners, nor does Supreme Court precedent supply an answer.The district court ruled in favor of the state. The Seventh Circuit reversed. Once Congress has demonstrated a clear intent to subject land to taxation by making it alienable, Congress must make an unmistakably clear statement to render it nontaxable again but these Ojibwe lands have never become alienable at Congress’s behest. Congress never extinguished their tax immunity. The relevant inquiry is: who bears the legal incidence of the tax today--all the relevant parcels are presently held by Ojibwe tribal members. View "Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin v. Evers" on Justia Law

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In May 2021 the Agency received a report of general neglect of an infant. A social worker met with Mother and her partner, Anthony; both reported that there was no known Native American ancestry. The dependency petition stated that a social worker had completed an Indian Child Welfare Act (25 U.S.C. 1901, ICWA) inquiry. At a hearing, Mother’s counsel reported no known heritage. Based on Anthony’s response, the court ordered further inquiry (Welf. & Inst. Code 224.2(e)). A social worker received a voicemail from Anthony, who apparently accidentally left his phone on, and discussed with Mother a plan to claim that the minor had Indian ancestry to delay the child's removal. In August, Mother stated she was not sure whether she had Native American ancestry. A maternal great-grandmother reported that the minor’s great-great-great-great grandparents “told her she has Blackfoot Cherokee,” but she had no documentation regarding the possible affiliation.The Agency recommended that the juvenile court find that there was “no reason to believe or reason to know” that the minor was an Indian child. The minor was placed with a maternal relative. At a September 2021 disposition hearing, the court found, without prejudice to future research, that ICWA did not apply. The court of appeal affirmed. Although the Agency erred by not interviewing additional family members, reversal of the early dependency order was not warranted simply because the Agency’s ongoing obligations had not yet been satisfied. View "In re S.H." on Justia Law

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The Chickasaw Nation, a sovereign and federally recognized Indian tribe, operates its own healthcare system, which includes five pharmacies. Under federal law, members of federally recognized Native nations are eligible to receive healthcare services at the nations’ facilities at no charge, and a nation may recoup the cost of services that it provides to a tribal member from that member’s health insurance plan. Caremark is the pharmacy benefit manager for health insurance plans that cover many tribal members served by the Chickasaw Nation’s pharmacies. The Nation signed agreements with Caremark. Each of these agreements incorporated by reference a Provider Agreement and a Provider Manual. The Provider Manual included an arbitration provision with a delegation clause requiring the arbitrator, rather than the courts, to resolve threshold issues about the scope and enforceability of the arbitration provision. The Nation sued Caremark, claiming violations of 25 U.S.C. Section 1621e, a provision of the Indian Health Care Improvement Act referred to as the “Recovery Act.”   The Ninth Circuit affirmed the district court’s order granting the petition to compel arbitration. The court rejected the Nation’s argument that it did not actually form contracts with Caremark that included arbitration provisions with delegation clauses. The court concluded that the premise of the Nation’s argument— that an arbitration agreement always and necessarily waives tribal sovereign immunity—was incorrect. Rather, the arbitration agreement simply designated a forum for resolving disputes for which immunity was waived. View "CAREMARK, LLC V. CHICKASAW NATION" on Justia Law

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Defendant appealed after a jury convicted him of abusive sexual contact of a minor. Defendant contends the evidence was insufficient to establish the offense occurred in Indian Country, that the district court erred by admitting uncharged conduct as propensity evidence, and that the use of acquitted conduct to increase his sentence violated his constitutional rights.The Eighth Circuit affirmed. The court explained Major Crimes Act gives the federal government exclusive jurisdiction over certain crimes committed by an Indian within Indian Country, including abusive sexual contact. Here, the deputy superintendent of the trust for the BIA’s Yankton Agency with nearly 32 years of experience, testified that the tract was part of the Yankton Sioux Reservation in 2006. Accordingly, the court held that it would not disturb the conviction because the deputy’s testimony provided a reasonable basis for the jury to find the offense occurred in Indian Country. Further, the court wrote that in affording great weight to the district court’s balancing, it found no abuse of discretion in admitting the evidence under Rules 413 and 414. View "United States v. Frank Sanchez" on Justia Law

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Defendant, a mother of ten children, was accused of physically abusing several of her children. In November 2017, the court sustained allegations of a petition and ordered the children removed from the parents. Throughout the proceedings, DCFS was given contact information for and/or had contact with a variety of extended family members. However, there was no indication in the record that an ICWA inquiry was made of any of these extended family members.Defendant claims that CFS failed to make an adequate ICWA inquiry because it did not of certain family members. Thus, Defendant asked the court to send the case back to the juvenile court. DCFS countered that Defendant denied any Indian ancestry, which is sufficient to end the inquiry.The Second Appellate District found that there was no evidence conflicting with Defendant's statement that her children were not of Indian ancestry. Additionally, the court concluded that the juvenile court did not abuse its discretion by finding that DCFS made a proper and adequate inquiry and acted with due diligence. And finally, even if the juvenile court erred by finding DCFS’s inquiry adequate, that error was not prejudicial. View "In re Ezequiel G." on Justia Law

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In two separate cases, an Alaska superior court decided that it could not terminate parental rights to children with alleged Indian heritage without cultural expert testimony, and that the cultural expert testimony presented was too vague and generalized to be helpful. Although it was error to construe the Alaska Supreme Court precedent to require cultural expert testimony in every ICWA case, the Supreme Court affirmed the superior court’s decision to require expert testimony based on its explanation that it could not competently weigh the evidence of harm in these cases without cultural context. And because the cultural expert testimony presented did not provide a meaningful assessment of tribal social and cultural standards and was not grounded in the facts of these particular cases, the Supreme Court held the court did not clearly err by giving the testimony no weight. The Supreme Court affirmed the superior court's decision to deny termination of parental rights in each case. View "Alaska Dept. Health & Soc. Serv. v. C.A., et al." on Justia Law

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Petitioner-mother J.J. petitioned for extraordinary relief pursuant to California Rules of Court, rule 8.452, seeking review of an order denying family reunification services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26. She argued the juvenile court improperly bypassed reunification services, and that real party in interest the San Joaquin County Human Services Agency (the Agency) failed to comply with the federal Indian Child Welfare Act of 1978. The Agency disputed both contentions. Because the order denying reunification services was not supported by sufficient evidence, the Court of Appeal granted the petition as to mother’s first contention. Because the ICWA issue was premature, the Court rejected mother’s second contention. View "J.J. v. Super. Ct." on Justia Law

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The Washington Supreme Court exercised discretionary interlocutory review in this case primarily to decide whether the Washington Indian Child Welfare Act (WICWA) required the State to take active efforts to prevent the breakup of J.M.W.’s family before taking him into emergency foster care. Consistent with the plain text and purpose of WICWA, the Supreme Court concluded that it did. The Court also concluded the trial court was required to make a finding on the record at the interim shelter care hearing that J.M.W.’s out of home placement was necessary to prevent imminent physical damage or harm. The matter was remanded back to the trial court for further proceedings. View "In re Dependency of J.M.W." on Justia Law

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S.A. (mother) appealed a juvenile court’s order terminating parental rights and ordering G.A. (minor) be placed for adoption. Mother contended the San Joaquin County Human Services Agency (Agency) and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA) because the Agency did not contact extended family members to inquire about the ICWA and the juvenile court made no findings regarding agency compliance in that regard. Mother added that no express ICWA findings were made by the juvenile court during the course of the proceedings, compounding the error, and asked the Court of Appeal to remand the case for ICWA compliance. The Court of Appeal determined that while the juvenile court failed to make an ICWA finding, the error was harmless because the Agency satisfied its duty of inquiry, and there was no reason to believe the minor was an Indian child: "the parents consistently stated they had no reason to believe they had Native American ancestry and did not object to the Agency’s reports that consistently concluded they did not. No further duty to inquire was triggered in this case, as the court and Agency had no reason to believe that an Indian child was involved." From this the Court found no prejudice flowing from the Agency's failure to interview extended family members. The case was remanded for the juvenile court to formally enter its ICWA finding on the record. View "In re G.A." on Justia Law

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LuAnn Erickson appealed a district court order granting her motion to vacate its previous order recognizing a tribal court restraining order under N.D.R.Ct. 7.2, but concluding that the tribal court restraining order was entitled to full faith and credit under 18 U.S.C. § 2265. Erickson argued that the court erred in granting full faith and credit to the tribal court order, because the tribal court lacked personal and subject matter jurisdiction, and the tribal court failed to provide her reasonable notice and opportunity to be heard. Specifically she averred she was not properly served with the tribal court proceedings. The North Dakota Supreme Court found the district court record did not reflect Erickson was properly served with the tribal court proceedings under the Tribal Code. “Without proper service on Erickson, a hearing should not have been held, and a permanent protection order should not have issued.” Further, because the record demonstrated that Erickson was notified of the protection order proceedings after a permanent protection order was already entered, it follows that she was not afforded reasonable notice and opportunity to be heard to satisfy 18 U.S.C. § 2265(b)(2). “Although Erickson responded to Baker’s attorney’s email attaching exhibits, this email was sent to Erickson the day before the hearing. Further, the email did not contain any information that would have informed Erickson a hearing would be conducted the following day. We conclude this is insufficient to satisfy due process requirements.” Therefore, the district court erred in according full faith and credit to the tribal court restraining order. The district court order granting Erickson’s motion to vacate its previous order recognizing a tribal court restraining order was affirmed; however, insofar as the order granted full faith and credit to the tribal court restraining order, judgment was reversed. View "Baker v. Erickson" on Justia Law