Justia Native American Law Opinion SummariesArticles Posted in California Courts of Appeal
In re Charles W., Jr.
Charles W. Sr. (Father) challenged a juvenile court's finding regarding his children Charles W. Jr. (Jr.), S.W., and R.W., that the Indian Child Welfare Act (ICWA) did not apply. He contended there was an insufficient inquiry of the mother’s ancestry. The children’s parents have a history of substance abuse. In a prior dependency case, the parents admitted to their use of methamphetamine. In January 2019, the juvenile court found ICWA did not apply in the proceeding. In July 2020, after completing her reunification services, the children’s mother (Mother) was granted sole custody of Jr. and S.W. Father did not complete his reunification services. Several months later in late September, R.W. was born to Mother and Father. In December 2020, police officers responded to the hotel room where the family was living and seized a large quantity of illicit drugs, which were accessible to the three young children. Both parents were arrested on drug-related charges, and they admitted to using drugs. Mother told the assigned social worker she had Yaqui and Aztec heritage but she “already went through the Court process,” and the court had found ICWA did not apply. Days later, the state filed dependency petitions on behalf of all three children; the Agency submitted a completed form ICWA-010(A), indicating Mother’s report of “Yaqui and Aztec Native American heritage” and Father’s denial of Indian heritage. The Agency also filled out a “field worksheet for updating client demographics.” On this worksheet, as to ICWA applicability (“ICWA?”), the Agency marked “No” for the two older children and made no marking for R.W. Further, for each child, a tribal affiliation of “Sioux” was denoted. At a dispositional hearing at which mother and her counsel attended, Native American ancestry was denied: “I spoke to my client this morning. She has no Native American ancestry. She does have some ancestry through central Mexico.” The court went on to “reconfirm ICWA does not apply at this time based on the information provided to the court and the reaffirmation of no Native American ancestry as stated and will be provided on the 020 form by Mother’s counsel." The Court of Appeal disagreed with Father's contention that the juvenile court and Agency did not make a sufficient inquiry as to the children's ancestry before finding the ICWA did not apply. "[G]iven the prior ICWA finding regarding this family and the parents’ unequivocal denials of Indian ancestry, we do not find it reasonably probable that further inquiry based on the record before us would yield a different result." View "In re Charles W., Jr." on Justia Law
In re S.R.
A Mother appealed a juvenile court’s order terminating her parental rights to her children, Isaiah R. and Summer R., who were four years old and one year old when removed from her custody in 2017. Her only challenge on appeal was that the court found the Indian Child Welfare Act (ICWA) didn’t apply to the children despite a report by both maternal grandparents revealing that their great-grandmother was a member of the Yaqui of Arizona. Mother and father were present at the initial detention hearing and both denied having Indian ancestry; the trial judge found ICWA didn’t apply. Both parents failed to reunify, and the maternal grandparents sought custody. At the Welfare and Institutions Code section 366 permanency planning review hearing, the grandparents completed forms where they indicated the children had Indian ancestry. The Court of Appeal agreed with Mother that the grandparents’ disclosure triggered a duty for the Children and Family Services department to inquire further, and therefore conditionally reversed the order terminating parental rights and remanded for further proceedings. View "In re S.R." on Justia Law
Stand Up for California! v. California
Plaintiffs filed suit challenging the Governor's authority to concur in the decision of the United States Secretary of the Interior to take 305 acres of land in Madera County into trust for North Fork Rancheria of Mono Indians for the purpose of operating a casino. The trial court sustained demurrers by North Fork and the state defendants. In 2016, the Court of Appeal reversed the judgment of dismissal, concluding the Governor lacked the authority to concur in the Interior Secretary's determination to take the Madera site into trust. The California Supreme Court granted review and held this case pending its decision in United Auburn Indian Community of Auburn Rancheria v. Newsom (2020) 10 Cal.5th 538. The Supreme Court transferred this case back to this court after deciding that California law empowers the Governor to concur. The Supreme Court directed this court to vacate its decision and to reconsider the matter in light of United Auburn.The Court of Appeal concluded that the facts of this case are distinguishable from those in United Auburn because at the November 2014 general election California voters rejected the Legislature's ratification of the tribal-state compact for gaming at the Madera site. The court concluded that the people retained the power to annul a concurrence by the Governor and the voters exercised this retained power at the 2014 election by impliedly revoking the concurrence for the Madera site. Consequently, the concurrence is no longer valid, and the demurrer should have been overruled. Accordingly, the court reversed the judgment of dismissal and directed the trial court to vacate its order sustaining the demurrers and enter a new order overruling them. View "Stand Up for California! v. California" on Justia Law
In re A.T.
The juvenile court asserted emergency jurisdiction over seven-year-old A.T., whose mentally ill mother had taken him from Washington state to California in violation of Washington family court orders. The court detained A.T., placed him temporarily with his father in Washington, and initiated contact with the Washington family court to address which state had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). In the meantime, the Wiyot Tribe intervened and, with A.T.’s mother asserted Indian Child Welfare Act (ICWA) required the court to retain jurisdiction in California.The juvenile court determined ICWA was inapplicable and that the Washington family court had continuing exclusive jurisdiction and dismissed the dependency action in favor of the family court proceedings in Washington. The court of appeal affirmed. The juvenile court properly applied the UCCJEA and dismissed the dependency action in favor of family court proceedings in Washington state after finding ICWA inapplicable because the child had been placed with his non-offending parent. ICWA and the related California statutory scheme expressly focus on the removal of Indian children from their homes and parents and placement in foster or adoptive homes. View "In re A.T." on Justia Law
Self v. Cher-AE Heights Indian Community of the Trinidad Rancheria
The Tribe purchased the coastal property and applied to the Bureau of Indian Affairs to take the property into trust, 25 U.S.C. 5108. The federal Coastal Zone Management Act requires that each federal agency whose activity affects a coastal zone must certify that the activity is consistent with state coastal management policies, 16 U.S.C. 1456(c). The Bureau determined the Tribe’s proposal is consistent with state coastal policies, including public access requirements in the Coastal Act. (Pub. Resources Code 30210). The Coastal Commission concurred after securing commitments from the Tribe to protect coastal access and coordinate with the state on future development. If the Tribe violates those policies, the Coastal Commission may request that the Bureau take remedial action. The plaintiffs use the Tribe’s coastal property to access the beach. They allege that the property's prior owner dedicated a portion of it to public use, in 1967-1972 and sought to quiet title to a public easement for vehicle access and parking; they did not allege that the Tribe has interfered with their coastal access or plans to do so.The court of appeal affirmed the dismissal of the suit. Sovereign immunity bars a quiet title action to establish a public easement for coastal access on property owned by an Indian tribe. Tribal immunity is subject only to two exceptions: when a tribe has waived its immunity or Congress has authorized the suit. Congress has not abrogated tribal immunity for a suit to establish a public easement. View "Self v. Cher-AE Heights Indian Community of the Trinidad Rancheria" on Justia Law
In re T.G.
At issue in these two appeals is whether the juvenile court and the Los Angeles County Department of Children and Family Services complied with their duties of inquiry and notice under the Indian Child Welfare Act of 1978 (ICWA) and related California law.The Court of Appeal agreed that the Department failed to adequately investigate mother's claim of Indian ancestry and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding, if it ever actually did, ICWA did not apply to these proceedings. Therefore, the court disagreed with the holding In re Austin J. (2020) 47 Cal.App.5th 870, 888-889, that amendments enacted by Assembly Bill No. 3176 were intended to limit the Department's robust duty of inquiry. The court conditionally reversed the orders for legal guardianship and remanded the matters to allow the Department and the juvenile court to rectify their errors and to take all other necessary corrective actions. View "In re T.G." on Justia Law
In re N.S.
C.V. (Mother) appealed an order issued under Welfare and Institutions Code section 366.261 selecting adoption as the permanent plan for her son N.S. and terminating her parental rights. N.S.’s father was a member of the San Pasqual Band of Mission Indians (the Tribe). The Tribe was involved in this case since the juvenile court found that N.S. was an Indian child and that the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA) applied. On appeal, Mother contended: (1) the Tribe’s “decree” selecting guardianship as the best permanent plan option for N.S. preempted the statutory preference for adoption under section 366.26; (2) N.S.’s counsel breached his duties under section 317 and provided ineffective assistance of counsel by failing to discover what Tribal benefits or membership rights were available to N.S. before the termination of parental rights; (3) the court erred in finding that the Indian child exception of section 366.26, subdivision (c)(1)(B)(vi)(I) and (II) did not apply to preclude termination of parental rights; (4) there was insufficient evidence to support the court’s finding beyond a reasonable doubt that continued custody in Mother’s care would be a substantial risk to N.S.; and (5) the court erred in finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) does not apply to preclude termination of parental rights. Finding no reversible error, the Court of Appeal affirmed. View "In re N.S." on Justia Law
In re Dominic F.
The Court of Appeal affirmed the juvenile court's jurisdictional findings and dispositional orders, holding that substantial evidence supports the juvenile court's finding that the Indian Child Welfare Act of 1978 (ICWA) does not apply here. Mother contends that the juvenile court and DCFS failed to satisfy the formal notice requirements under the ICWA and related California law.In this case, the initial inquiry conducted by the juvenile court created a "reason to believe" the children possibly are Indian children; DCFS's repeated efforts to gather information concerning the children's maternal ancestry constitutes substantial evidence that DCFS met its duty of further inquiry; but the juvenile court and DCFS's further investigation did not yield results that pushed their reason to believe the children are Indian children, to reason to know the children are Indian children. The court explained that a suggestion of Indian ancestry is not sufficient under ICWA or related California law to trigger the notice requirement. Because DCFS was not required to provide formal notice to the pertinent tribes, the court did not reach Mother's argument that the ICWA notices may have lacked necessary information. View "In re Dominic F." on Justia Law
In re Internet Lending Cases
Rosas filed a representative action based on alleged participation in illegal internet payday loan practices. Defendant AMG is a wholly-owned tribal corporation of Miami Tribe, a federally recognized Indigenous American tribe. Rosas previously challenged a court order granting AMG's motion to quash service of summons for lack of jurisdiction based on tribal sovereign immunity. On remand, the court granted AMG’s motion to dismiss for lack of personal jurisdiction on the basis of tribal sovereign immunity. The court accepted AMG’s argument that the arm-of-the-tribe test should be applied to the current facts relating to its ownership and control rather than the facts that existed when the complaint was filed. The court credited AMG’s new, undisputed evidence concerning significant changes made to AMG’s structure and governance since the prior court ruling—changes that removed the nontribal actors from positions of authority and control and ended its involvement in the business of financial lending.The court of appeal affirmed. The court did not exceed the scope of the remand. When a court determines that a tribal entity is entitled to immunity from suit, the court lacks the authority, absent the tribe’s consent or federal authorization, to bring the tribal entity before the court for any purpose, including for the purpose of sanctioning misconduct. View "In re Internet Lending Cases" on Justia Law
In re J.W.
This case began when, in December 2016, plaintiff-respondent San Bernardino Children and Family Services (CFS) learned that Mother threatened to physically abuse J.W., the youngest of her two daughters, then one year old. Mother had called 911 and threatened to stab herself and J.W. Police officers detained Mother and temporarily committed her pursuant to Welfare and Institutions Code section 5150. CFS’s detention reports stated that, a few weeks prior, Mother had moved to California from Louisiana, where she had been living with A.W., J.W.'s father. According to a family friend, Mother was spiraling into depression in Louisiana and had mentioned relinquishing her children to the Louisiana Department of Children and Family Services. The family friend urged Mother to come live with her in California, which she did. The family friend also informed CFS that in 2010 Mother had suffered traumatic brain injuries requiring dozens of surgeries, from a car accident that killed Mother’s mother and sister. Since the accident, Mother had suffered from grand mal seizures and had been diagnosed with schizophrenia. CFS petitioned for J.W. and her older half-sister L.M. After the detention hearing, the juvenile court found a prima facie case and detained the children. Although the detention reports noted Mother’s recent move from Louisiana, CFS did not address whether there was jurisdiction under the UCCJEA, and the juvenile court made no finding concerning the UCCJEA. Ultimately Mother's rights to the children were terminated. A.W. challenged the termination, contending the juvenile court failed to comply with the UCCJEA, such that Louisiana should have been the forum for the case. Mother contended the juvenile court failed to comply with the Indian Child Welfare Act of 1978. The Court of Appeal determined that, even assuming the juvenile court lacked UCCJEA jurisdiction, A.W. forfeited the ability to raise his argument on appeal. "Forfeiture would not apply if the UCCJEA provisions governing jurisdiction implicated the courts’ fundamental jurisdiction, but...they do not." The Court determined there was no failure to apply the ICWA, “ICWA does not obligate the court or [child protective agencies] ‘to cast about’ for investigative leads.” View "In re J.W." on Justia Law