Justia Native American Law Opinion Summaries

Articles Posted in Native American Law
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The Indian Self-Determination and Education Assistance Act (“ISDA”) allowed tribes to run their own healthcare programs, funded by Indian Health Services (“IHS”) in the amount IHS would have spent on a tribe’s health care. Because it was too expensive for the tribes to run the programs, Congress enacted a fix by requiring IHS to provide tribes with CSC—the amount of money a tribe would need to administer its healthcare programs. In addition, Congress allowed the tribes to bill outside insurers directly, and allowed tribes to keep the third-party revenue without diminishing their IHS grants, so long as tribes spent that revenue on health care.The Tribe contends that the IHS must cover those additional CSC. The Tribe filed suit to recover the CSC for program years 2011-2013. The Ninth Circuit held that the text of the governing statute, 25 U.S.C. Sec. 5325(a), compelled reversal and remand for additional proceedings. View "SAN CARLOS APACHE TRIBE V. XAVIER BECERRA, ET AL" on Justia Law

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A.C. (Mother) is the mother of E.C., now three years old. In 2020, E.C. was taken into protective custody after Mother’s domestic violence-related arrest, and, in 2021, she was made a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b)(1) and (j).1 Mother timely appealed the juvenile court’s order terminating her parental rights under section 366.26.2 E.C.’s alleged father, Ed. C., is not a party to the appeal. Mother’s sole claim on appeal is that Kern County Department of Human Services (the Department) failed to comply with the Indian Child Welfare Act of 1978(ICWA) and related California law with respect to its duty of “further inquiry,” which was triggered by information that maternal great-grandmother and two maternal great-uncles were enrolled members of the Apache tribe   The Fifth Appellate District conditionally reversed the juvenile court’s finding that ICWA does not apply and remanded the matter to the juvenile court with directions to order the Department to comply with the inquiry and documentation provisions set forth in section 224.2, subdivisions (b) and (e), and rule 5.481(a)(5). The court further explained that if, after determining that an adequate inquiry was made consistent, the juvenile court finds that ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, its ICWA finding shall be reinstated. In all other respects, the court’s orders terminating Mother’s parental rights are affirmed. View "In re E.C." on Justia Law

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A mother appeals an order terminating parental rights over her son, based on a deficient initial inquiry about Indian ancestry. The only source of information about ancestry was the mother. The Los Angeles County Department of Children and Family Services could have satisfied its inquiry obligations by asking for contact information and making a few phone calls.   The Second Appellate District conditionally reversed and remanded to allow the Department and juvenile court fully to comply with the Indian Child Welfare Act (25 U.S.C. Section 1901 et seq.) (the Act) and related California law. The court reasoned that because the Department does not argue the issue and because the effect tribal involvement may have had on this case is unknown, the son’s adoptive placement does not establish harmlessness. The court held that, after completing the initial inquiry, there is no reason to believe the son is an Indian child, the court shall reinstate its order terminating parental rights. View "In re Oscar H." on Justia Law

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M.H. (Father) and A.C. (Mother) are the parents of K.H., now 20 months old. Due to his parents’ drug use, K.H. was taken into protective custody following his birth and made a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b)(1).1 The juvenile court subsequently terminated Mother’s and Father’s parental rights under section 366.26,2 and Father timely appealed. The sole claim advanced by Father is the alleged violation of the Indian Child Welfare Act of 1978 (ICWA) and related California law. Father contends Kern County Department of Human Services (the Department) and the juvenile court failed to comply with their affirmative and continuing duties of inquiry under section 224.2, subdivision (a), the Department failed to comply with its broad duty of inquiry set forth under section 224.2, subdivision (b), and remand for an adequate inquiry is required.   The Fifth Appellate conditionally reversed the juvenile court’s finding that ICWA does not apply and the matter is remanded to the juvenile court with directions to order the Department to comply with the inquiry and documentation provisions set forth in section 224.2, subdivision (b), and rule 5.481(a)(5). If, after determining that an adequate inquiry was made consistent with the reasoning in this opinion, the court finds that ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, its ICWA finding. View "In re K.H." on Justia Law

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Father of the minor M.R. appealed a trial court’s judgment after it freed the minor from father’s custody and control, and freed the minor for adoption by the maternal great-grandmother (grandmother). Father contended the court failed to comply with the inquiry and notice requirements under the Indian Child Welfare Act (ICWA) because: (1) the court-appointed investigator and the court failed to investigate extended family members; and (2) the court made no findings as to whether the minor was an Indian child. The Court of Appeal conditionally reversed the judgment and remanded for limited proceedings to ensure compliance with the ICWA. View "Adoption of M.R." on Justia Law

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Two tribes claimed to be a child’s tribe for purposes of the Indian Child Welfare Act (ICWA): The Native Village of Wales claimed the child was a tribal member; the Native Village of Chignik Lagoon claims that the child is “eligible for tribal membership.” After the superior court terminated the biological parents’ parental rights, Wales moved to transfer subsequent proceedings, including potential adoption, to its tribal court. Chignik Lagoon intervened in the child in need of aid (CINA) case, arguing that the child was not a member of Wales under Wales’s constitution and that transfer of further proceedings to the Wales tribal court was not authorized under ICWA. The superior court found that the child was a member of Wales and that Wales was the child’s tribe for ICWA purposes, and therefore granted the transfer of jurisdiction. Chignik Lagoon appealed. After review, the Alaska Supreme Court affirmed the superior court’s determination that the child was a member of Wales and that Wales was appropriately designated as the child’s tribe for ICWA purposes. The Supreme Court also concluded that, given that ruling, Chignik Lagoon lacked standing to challenge the transfer of proceedings to the Wales tribal court. View "Native Village of Chignik Lagoon v. Alaska Dept. of Health & Soc. Svcs." on Justia Law

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Pro Se respondent-appellant Anthony Hammer (Father) was a member of the Cherokee Nation. His parental rights to his children were terminated, and he sought to collaterally attack the termination order using: McGirt v. Oklahoma, 140 S. Ct. 2452 (2020); the United States' 1866 treaty with the Cherokee, Treaty with the Cherokee, U.S.-Cherokee Nation, July 19, 1866, 14 Stat. 799; and the federal Indian Child Welfare Act (ICWA). Father argued the district court never acquired jurisdiction because the children were domiciled or resided within the Muscogee (Creek) Nation's reservation. The district court implicitly found Children were not residents or domiciliaries of a reservation. At no point in the original proceedings did Father or the tribe allege otherwise. No direct appeal was filed from the original order. Instead, Father brought a claim to vacate more than a year after the judgment terminating his parental rights became final. "A motion to vacate is not a substitute for a timely appeal. A judgment will only be vacated as void if the lack of jurisdiction affirmatively appears on the face of the judgment roll." Because Father failed to demonstrate the judgment was void, the Oklahoma Supreme Court affirmed the order denying Father's motion to vacate. View "Hammer v. Oklahoma" on Justia Law

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A.H. (Mother) and J.H. (Father) appealed a juvenile court’s order terminating their parental rights to their two-year-old son, G.H., at the permanent plan selection and implementation hearing held under California Welfare and Institutions Code section 366.26. G.H. was detained from his parents’ custody two days after he was born when both he and Mother tested positive for methamphetamine. Mother and Father were homeless at the time, and had been struggling with methamphetamine abuse for approximately eight years. Father admitted he did not discourage Mother’s drug use during pregnancy. The day before G.H. was detained, Mother, G.H.’s maternal great aunt, and his maternal grandmother denied Native American ancestry. Father claimed he was a “small percent” Cherokee, but he acknowledged he was not registered as a member of the tribe. On appeal, Mother and Father contend the juvenile court erred in finding that a statutory exception to terminating the parental rights of an adoptable child did not apply. They also contended the Orange County Social Services Agency (SSA) and the court did not meet their obligations under the Indian Child Welfare Act of 1978 (ICWA) and related state law to investigate G.H.’s Native American background. The Court of Appeal found nothing in the record suggested SSA or the court made any effort to use social media as a means of contacting the paternal grandmother for the purposes of determining ancestry, so it conditionally reversed the termination and remanded for the agency to conduct further inquiry. View "In re G.H." on Justia Law

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The Eighth Circuit reviewed a case for the second time regarding “whether a South Dakota tax on nonmember activity on the Flandreau Indian Reservation (the Reservation) in Moody County, South Dakota is preempted by federal law. On remand, and after a six-day video bench trial, the district court entered judgment in favor of the Tribe, concluding again that federal law preempts the imposition of the tax.   The Eighth Circuit reversed and remanded. The court explained that in light of guideposts from the Supreme Court, even with the evidence that the district court heard at trial, the court cannot conclude that the federal regulation in IGRA regarding casino construction is extensive. The court reasoned that even with a more factually developed record than the court considered on summary judgment, the Bracker balancing test does not weigh in favor of preemption under IGRA because the extent of federal regulation over casino construction on tribal land is minimal, the impact of the excise tax on the tribal interests is minimal, and the State has a strong interest in raising revenue to provide essential government services to its citizens, including tribal members. The district court thus erroneously entered judgment in favor of the Tribe based on IGRA’s preemption of the excise tax. View "Flandreau Santee Sioux Tribe v. Michael Houdyshell" on Justia Law

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Appellant appealed from juvenile dependency jurisdiction and disposition orders concerning his daughter. The juvenile court removed Daughter from her parents’ custody; ordered Daughter suitably placed; denied Mother reunification services pursuant to Welfare and Institutions Code section 361.5, subdivisions (b)(10)-(11); and granted reunification services for Father. Father appealed the jurisdiction findings and disposition order. The sole issue raised in his opening brief was whether the Los Angeles County Department of Children and Family Services (the Department) complied with its obligations under the Indian Child Welfare Act (ICWA) and related California law.   The Second Appellate District dismissed the appeal finding that it is moot. The court explained that two courts have recently held—in appeals from orders terminating parental rights—that additional ICWA-related inquiry or notice efforts by a juvenile court or child welfare agency while a case is on appeal will not moot deficiencies in an ICWA inquiry at the time a notice of appeal is filed. However, the opinions do not concern the procedural posture here: an ICWA appeal at the jurisdiction and disposition stage where there will necessarily be further dependency proceedings in the juvenile court (at which continuing ICWA duties apply) and a basis for a later appeal if for some reason the remedial ICWA investigation the Department is now undertaking falls short in Father’s view. The juvenile court must direct that process, at least in the first instance. View "In re Baby Girl M." on Justia Law