Justia Native American Law Opinion Summaries

L.B. lived within the Northern Cheyenne Reservation. L.B. and her mother went to a bar and had alcoholic drinks. After they returned home, L.B.’s mother went for a drive. L.B. called the police and reported that her mother was driving while intoxicated. Bureau of Indian Affairs (BIA) Officer Bullcoming determined that L.B.’s mother was safe and then went to L.B.’s residence, where her children were asleep in the other room. L.B. admitted to consuming alcoholic drinks. Bullcoming threatened to arrest L.B. for child endangerment because she was intoxicated while in the presence of her children. L.B. pleaded with Bullcoming not to arrest her because she would lose her job as a school bus driver. Bullcoming took L.B. outside for a breathalyzer test. L.B. believed that her choices were to go to jail or have sex with Bullcoming. L.B. and Bullcoming had unprotected sexual intercourse. L.B. became pregnant as a result of the encounter and gave birth.L.B. brought a Federal Tort Claims Act suit, seeking to hold the government liable for Bullcoming’s misconduct. The government asserted that Bullcoming was not acting within the scope of his employment when he sexually assaulted L.B so his actions fell outside the scope of the FTCA’s limited waiver of sovereign immunity. The Ninth Circuit certified the question to the Montana Supreme Court: whether, under Montana law, OBullcoming’s sexual assault of L.B. was within the scope of his employment as a law enforcement officer. View "L. B. v. United States" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of a Federal Tort Claims Act (FTCA) case brought by plaintiffs, alleging negligence by an emergency room physician. The physician treated Tyrone Sisto at the San Carlos Apache Healthcare Corporation hospital and failed to diagnose Rocky Mountain Spotted Fever. Plaintiffs claimed that the physician was an "employee of the United States" under the FTCA and the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 5301 et seq., and that he negligently failed to diagnose the disease that led to Sisto's death.The panel agreed with the district court that the FTCA and section 5321(d) do not waive the United States' sovereign immunity with respect to claims based on the negligence of employees of independent contractors providing health care pursuant to a self-determination contract under the ISDEAA. Therefore, the panel concluded that the physician was an employee of T-EM rather than the hospital, and that the FTCA and section 5321(d) do not authorize a suit against the United States based on his alleged negligence. In this case, the physician had only a contract with T-EM and he was not an individual who provided health care services pursuant to a personal services contract with a tribal organization and was therefore not an employee of the Public Health Service under section 5321(d); because hospital privileges were not issued to the physician on the condition that he provide services covered by the FTCA, neither 25 U.S.C. 1680c(e)(1) nor 25 C.F.R. 900.199 confers FTCA coverage; and the hospital did not control the physician's actions in administering care to a degree or in a manner that rendered him an employee of the government when he treated Sisto. View "Sisto v. United States" on Justia Law

A member of the Metlakatla Indian Community was convicted of several commercial fishing violations in State waters and fined $20,000. He appealed his conviction and sentence to the court of appeals, which asked the Alaska Supreme Court to take jurisdiction of the appeal because of the importance of the primary issue involved: whether the defendant’s aboriginal and treaty-based fishing rights exempted him from State commercial fishing regulations. The defendant also challenged several evidentiary rulings and the fairness of his sentence. Because the Supreme Court held the State had authority to regulate fishing in State waters in the interests of conservation regardless of the defendant’s claimed fishing rights, and because the Court concluded the trial court did not abuse its discretion in its procedural rulings, the Supreme Court affirmed the conviction. The Court also affirmed the sentence as not clearly mistaken, except for one detail on which the parties agreed: the district court was mistaken to include a probationary term in the sentence. The case was remanded for modification of the judgments to correct that mistake. View "Scudero Jr. v. Alaska" on Justia Law

The superior court terminated a father’s parental rights to his two children after finding them children in need of aid because of their father’s domestic violence and aggressive behavior. The children were Indian children under the Indian Child Welfare Act (ICWA). Therefore the Office of Children’s Services (OCS) was required to make active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the family. At the termination trial, the superior court found clear and convincing evidence that OCS made active efforts but that these efforts proved unsuccessful. The father appealed, arguing only that the superior court’s active efforts finding was made in error. Finding no reversible error, the Alaska Supreme Court affirmed the termination order. View "Ronald H. v. Alaska, DHSS, OCS" on Justia Law

In consolidated appeals, a mother challenged decisions by the family division of the superior court denying her motions for an extension of time to file a notice of appeal and to vacate the order terminating her parental rights to K.S., and concluding that K.S. was not an Indian child for purposes of the Indian Child Welfare Act. In March 2018, a relative reported that mother had “tossed” K.S. onto a bed during a family argument and that father had used excessive physical discipline on K.S.’s older brother. K.S. was later found to have a buckle fracture on her wrist, which her parents were unable to explain. The Department for Children and Families (DCF) sought and obtained emergency custody of K.S. and her brother, and filed petitions alleging that they were children in need of care or supervision (CHINS). Mother and father later stipulated to the merits of the CHINS petitions. At the October hearing, mother testified that she understood that she was permanently giving up her parental rights, that her decision was voluntary, and that she believed the decision was in K.S.’s best interests. The court accepted the parties’ stipulations and granted the termination petitions. In December 2019, mother hired a new attorney, who filed a motion for relief from the termination order pursuant to Vermont Rule of Civil Procedure 60(b). Mother alleged that the attorney who represented her at the relinquishment hearing had rendered ineffective assistance, that the underlying facts did not support termination of mother’s parental rights, and that her relinquishment was involuntary because she did not understand the proceedings. The family division denied the motion, finding that mother’s relinquishment was knowing and voluntary and not the result of coercion by DCF or the foster parents. The court further concluded that it was not required to conduct a separate "best interests" analysis when mother voluntarily relinquished her rights, and she failed to establish that her counsel’s performance was ineffective. Mother untimely filed her notice of appeal, and while a decision on the untimely notice was pending, she filed a second motion to vacate the termination order, adding the argument that the court failed to give notice to the Cherokee tribes or to apply the substantive provisions of the Indian Child Welfare Act. The Vermont Supreme Court found no reversible error and affirmed the termination orders. View "In re K.S." on Justia Law

Title V of the Coronavirus Aid, Relief, and Economic Security (CARES) Act allocates $8 billion to “Tribal governments” to compensate for unbudgeted expenditures made in response to COVID–19, 42 U.S.C. 801(a)(2)(B). A “Tribal government” is the “recognized governing body of an Indian tribe” as defined in the Indian Self-Determination and Education Assistance Act (ISDA), which refers to “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (ANCSA), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” 25 U.S.C. 5304(e).Consistent with the Department of the Interior’s view that Alaska Native Corporations (ANCs) are Indian tribes under ISDA, the Department of the Treasury determined that ANCs are eligible for Title V relief, although ANCs are not “federally recognized tribes” (i.e., tribes with which the United States has entered into a government-to-government relationship). Federally recognized tribes sued. The D.C. Circuit reinstated the suit following summary judgment.The Supreme Court reversed. ANCs are “Indian tribe[s]” under ISDA and eligible for funding under Title V.. ANCs are “established pursuant to” ANCSA and “recognized as eligible” for that Act’s benefits. ANCSA, which made ANCs eligible to select tens of millions of acres of land and receive hundreds of millions of tax-exempt dollars, 43 U.S.C. 1605, 1610, 1611, is a special program provided by the United States to “Indians.” Given that ANCSA is the only statute ISDA’s “Indian tribe” definition mentions by name, eligibility for ANCSA’s benefits satisfies the definition’s “recognized-as-eligible” clause. The Court noted that even if ANCs did not satisfy the recognized-as-eligible clause, they would still satisfy ISDA’s definition of an “Indian tribe.” View "Yellen v. Confederated Tribes of Chehalis Reservation" on Justia Law

At issue in this case was whether the Department of Children, Youth, and Families (Department) met its burden under the Washington State Indian Child Welfare Act (WICWA) to provide active efforts to reunify C.A. with her children. After review, the Washington Supreme Court held the Department failed to provide active efforts when it provided untimely referrals and only passively engaged with C.A. from January through June 2019. The Supreme Court also held that the dependency court impermissibly applied the futility doctrine when it speculated that even had the Department acted more diligently, C.A. would not have been responsive. Therefore, the dependency court’s finding that the Department satisfied the active efforts requirement from January through June 2019 was reversed. The matter was remanded and the dependency court directed to order the Department to provide active efforts in accordance with the Court's opinion before the court proceeds to hear the filed termination of parental rights petitions. View "In re Dependency of G.J.A." on Justia Law

The Ninth Circuit affirmed the district court's judgment in favor of the DOI, the Bureau of Indian Affairs, federal officials, and the Spokane Tribe of Indians, in an action brought by the Kalispel Tribe of Indians, challenging the Secretary of DOI's decision determining that the Spokane Tribe of Indians' proposed gaming establishment on newly acquired off-reservation land would not be detrimental to the surrounding community. Kalispel raised challenges pursuant to the the Administrative Procedure Act, the National Environmental Policy Act, and the Indian Gaming Regulatory Act.The panel held that IGRA requires the Secretary to weigh and consider the various interests of those within the surrounding community when deciding whether additional off-reservation gaming would be detrimental to the surrounding community. A showing that additional gaming may be detrimental to some members of the surrounding community, including an Indian tribe, does not dictate the outcome of the Secretary's two-step determination. The panel agreed with the DC Circuit and rejected Kalispel's argument that any detriment to Kalispel precluded the Secretary from issuing a favorable two-part determination. Rather, the panel concluded that the Secretary had the authority to issue a two-step determination, and the Secretary's decision to issue a favorable decision here was neither arbitrary nor capricious. The panel declined to reach the merits of Kalispel's contention, which was not advanced in the district court, that the Secretary previously announced a policy that additional off-reservation gaming would not be approved if a nearby Indian tribe could show that additional gaming would be detrimental to it. Finally, the panel concluded that Kalispel has not shown that the Secretary failed to consider its claimed harms or to comply with the relevant statutes and regulations, and thus it has not shown that the Secretary violated the federal government's trust duty owed to Kalispel. View "Kalispel Tribe of Indians v. U.S. Department of the Interior" on Justia Law

Wilton Rancheria, a Sacramento area Indian tribe, was federally recognized in 1927. The 1958 Rancheria Act disestablished Wilton and 40 other reservations. In 1979, several California rancherias, including Wilton, sued. The government agreed to restore Indian status. Wilton was erroneously excluded from the settlement. In 2009, the Department of the Interior restored Wilton’s federal recognition and agreed to “accept in trust certain lands formerly belonging to” Wilton. Wilton petitioned to acquire 282 acres near Galt for a casino. A draft environmental impact statement (EIS), under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321–4347, identified alternatives, including a 30-acre Elk Grove parcel. Wilton changed its preference and requested that the Department acquire the Elk Grove location. Objectors responded that acquiring the Elk Grove location would moot pending state-court suits.The Department’s final EIS identified the Elk Grove location as the preferred alternative. The Principal Deputy Assistant Secretary– Indian Affairs, Roberts, signed the Record of Decision (ROD) pursuant to delegated authority. Roberts had served as Acting Assistant Secretary– Indian Affairs (AS–IA), but after his acting status lapsed under the Federal Vacancies Reform Act, Roberts continued to exercise the non-exclusive AS–IA functions. Black, who became Acting AS–IA in the new administration, signed off on the acquisition.Objectors filed suit before the issuance of the Department’s ROD and unsuccessfully sought a temporary restraining order. The D.C. Circuit affirmed summary judgment for the Department, rejecting claims that the Department impermissibly delegated the authority to make a final agency action to acquire the land to an official who could not wield this authority, was barred from acquiring land in trust on behalf of Wilton’s members, and failed to comply with NEPA. View "Stand Up For California! v. United States Department of the Interior" on Justia Law

After the Indian Health Service agreed to pay the Swinomish Indian Tribal Community to run a health program on the Swinomish Reservation, Swinomish filed suit under the Contract Disputes Act and Declaratory Judgment Act, claiming that it was owed additional sums in direct and indirect contract support for costs calculated as percentages of the money it received from insurers and spent on health services. The DC Circuit affirmed the district court's grant of the government's motion for summary judgment, holding that the Indian Self-Determination and Education Assistance Act does not require Indian Health Service to pay for contract support costs on insurance money received by Swinomish. Neither does Swinomish's contract with Indian Health Service. View "Swinomish Indian Tribal Community v. Becerra" on Justia Law