Justia Native American Law Opinion Summaries

As relevant here, a trial court has reason to know that a child is an Indian child when “[a]ny participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.” In this dependency and neglect case, the juvenile court terminated Mother’s parental rights with respect to E.A.M. Mother appealed, complaining that the court had failed to comply with Indian Child Welfare Act (“ICWA”) by not ensuring that the petitioning party, the Denver Human Services Department (“the Department”), had provided notice of the proceeding to the tribes that she and other relatives had identified as part of E.A.M.’s heritage. The Department and the child’s guardian ad litem responded that the assertions of Indian heritage by Mother and other relatives had not given the juvenile court reason to know that the child was an Indian child. Rather, they maintained, such assertions had merely triggered the due diligence requirement in section 19-1-126(3), and here, the Department had exercised due diligence. A division of the court of appeals agreed with Mother, vacated the termination judgment, and remanded with directions to ensure compliance with ICWA’s notice requirements. The Colorado Supreme Court reversed, finding that "mere assertions" of a child's Indian heritage, without more, were not enough to give a juvenile court "reason to know" that the child was an Indian child. Here, the juvenile court correctly found that it didn’t have reason to know that E.A.M. is an Indian child. Accordingly, it properly directed the Department to exercise due diligence in gathering additional information that would assist in determining whether there was reason to know that E.A.M. is an Indian child. View "Colorado in interest of E.A.M. v. D.R.M." on Justia Law

The Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation have a cross-deputization agreement with the State of Montana under which the Tribes have agreed to commission state police to act as tribal police where there is a gap between their respective criminal jurisdictions. Defendant challenges the validity of the cross-deputization agreement, arguing that the Tribes lack the inherent sovereign authority to enter into a cross-deputization agreement with the State of Montana.   The Ninth Circuit affirmed the district court’s denial of Defendant’s motion to suppress evidence. The panel emphasized that the cross-deputization agreement deputizes state officers to enforce tribal law, not state law, and emphasized that Congress has expressly provided for the Tribes’ authority to enter into such compacts.   Defendant also argued that the Tribes explicitly conditioned the cross-deputization agreement on federal approval, which they did not receive. The panel did not read the agreement’s use of the word “approve” as giving the Bureau of Indian Affairs veto power over the agreement.   The panel wrote that even if the lack of a signature from the BIA representative on the 2003 amendment to the agreement impaired the validity of the amendment, it would not invalidate the trooper’s commissioned status. The panel wrote that the trooper’s failure to carry an identification card was plainly a violation of the agreement.  The panel noted, however, that none of the sovereign parties to the agreement appears to consider the violation sufficiently serious to seek any remedy for it. View "USA V. ERIC FOWLER" on Justia Law

The Ninth Circuit reversed the district court’s dismissal, for failure to state a claim, of the Metlakatlan Indian Community’s suit against Alaskan officials, claiming that an 1891 statute granted the Community and its members the right to fish in the off-reservation waters where they had traditionally fished and that they, therefore, were not subject to an Alaska statute’s limited entry program for commercial fishing in waters designated as Districts 1 and 2.   The panel held that the 1891 Act also granted to the Community and its members a nonexclusive right to fish in the off-reservation waters where they had traditionally fished. The panel applied the Indian canon of construction, which required it to construe the 1891 Act liberally in favor of the Community and to infer rights that supported the purpose of the reservation. The panel concluded that a central purpose of the reservation, understood in light of the history of the Community, was that the Metlakatlans would continue to support themselves by fishing. The panel, therefore, held that the 1891 Act preserved for the Community and its members an implied right to non-exclusive off-reservation fishing for personal consumption and ceremonial purposes, as well as for commercial purposes, within Alaska’s Districts 1 and 2, which encompassed waters included in the traditional fishing grounds of the Metlakatlans. View "METLAKATLA INDIAN COMMUNITY V. MICHAEL DUNLEAVY, ET AL" on Justia Law

J.T. (father) appealed a juvenile court’s order terminating his parental rights to Kenneth D. (minor) and adopting the recommended findings and orders of the Placer County Department of Health and Human Services (Department). Father’s contentions on appeal were limited to the Department’s and juvenile court’s compliance with the requirements of the federal Indian Child Welfare Act (ICWA), complaining the juvenile court and the Department failed to make the required initial inquiries of father’s ICWA status prior to finding the ICWA inapplicable and terminating his parental rights. Father also argued the Department’s investigation into mother’s possible Native American heritage was inadequate. He contended these errors were prejudicial requiring reversal and that posttermination ICWA inquiries did not cure the alleged noncompliance. To this, the Court of Appeal disagreed: Father did not show the juvenile court’s ICWA determination premised upon information provided by mother was unsupported by substantial evidence, and in light of the augmented record filed May 5, 2022, Father could not show the juvenile court’s and Department’s failure to initially comply with their ICWA duties was prejudicial. Accordingly, judgment was affirmed. View "In re Kenneth D." on Justia Law

J.V. (Father) appealed a Welfare and Institutions Code section 366.26 order terminating his parental rights to his then three-year-old daughter, Y.M. His sole contention was that the San Diego County Health and Human Services Agency (the Agency) did not comply with its initial duty to inquire regarding Y.M.’s possible Indian ancestry under section 224.2 (b), which implemented in part the federal Indian Child Welfare Act (ICWA). The Agency conceded that it did not comply with its duty of initial inquiry, but argued its error was harmless. Applying the standard set forth in In re Benjamin M., 70 Cal.App.5th 735 (2021), the Court of Appeal concluded the Agency's section 224.2 (b) initial inquiry error was not prejudicial. Accordingly, the Court affirmed the section 366.26 order. View "In re Y.M." on Justia Law

N.G. (Mother) appealed a juvenile court’s order terminating parental rights to her children, Ricky R. and Jayden R. Mother argued the Riverside County Department of Public Social Services (DPSS) failed to discharge its duty of initial inquiry under state law implementing the federal Indian Child Welfare Act of 1978 (ICWA). DPSS did not dispute that it failed to discharge its duty of initial inquiry, but it argued that the error was harmless. DPSS also moved to dismiss the appeal as moot on the basis of postjudgment evidence, and it asked the Court of Appeal to consider that evidence under several theories. After review, the Court concluded DPSS prejudicially erred by failing to comply with its duty of initial inquiry under ICWA-related state law. The Court also denied DPSS’s motion to dismiss the appeal and declined to consider the postjudgment evidence of ICWA inquiries conducted while this appeal was pending. To this end, the Court held the juvenile court should consider that evidence in the first instance and determine whether DPSS discharged its duties under ICWA and related state law. View "In re Ricky R." on Justia Law

Plaintiffs are members of the Shinnecock Indian Nation and assert an ancestral right to fish in the Shinnecock Bay without interference. Over the past decade, state officials ticketed and prosecuted Plaintiffs for violating state fishing laws. Plaintiffs sought declaratory and injunctive relief to prevent the further enforcement of the regulations as well as damages based on allegations of discrimination in past enforcement. The district court granted summary judgment to Defendants.The Second Circuit found that Ex Parte Young applies to Plaintiffs’ fishing-rights claims against the New York State Department of Environmental Conservation (“DEC”) officials— but not against the DEC itself—because Plaintiffs allege an ongoing violation of federal law and seek prospective relief against state officials. Thus, the district court erred in granting summary judgment to the DEC officials on Plaintiffs’ claims for declaratory and injunctive relief. However, the district court properly granted summary judgment on the discrimination claims because there is no evidence in the record that would permit an inference of discriminatory intent. View "Silva v. Farrish" on Justia Law

D.L. (Mother) is the biological mother of four children: E.L., Child 1, now 15 years old; E.R.O., Child 2, now 11; L.O., Child 3, now 10; and E.O.O., Child 4, now 7. E.O. (Father) is the presumed father of Child 1 and the biological father of the other children. In January 2015, Father began a two-year term in the Ventura County jail. Aida R. was appointed legal guardian of the children.   Mother contends the trial court abused its discretion in denying her request to reopen the evidence to allow her to testify. Mother contends the trial court failed to comply with the Indian Child Welfare Act of 1978 (ICWA). Mother argues that ICWA is a substantial right, and her counsel may not waive a substantial right without her consent.   The Second Appellate District affirmed the orders and found that the ICWA does not apply. The court explained that the circumstances here, however, warrant application of Code of Civil Procedure section 909. The court wrote that remand would unnecessarily delay the likelihood of adoption of the children and would achieve the same result the court found here. View "In re E.L." on Justia Law

Father appealed the juvenile court’s order terminating his and Mother’s parental rights and finding that the child, J.R., was adoptable. The Second Appellate District conditionally reversed that order because the Los Angeles County Department of Children and Family Services (DCFS or the agency) violated Mother’s due process rights.The court explained that the Fourteenth Amendment to the United States Constitution provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law . . . .” (U.S. Const., 14th Amend., Section 1.) Except in emergent circumstances, this provision guarantees reasonable notice and a meaningful opportunity to be heard before the state may deprive a person of a protected liberty or property interest. Because parents have a fundamental liberty interest in the companionship, care, custody, and management of their children, the due process clause requires child welfare agencies to exercise reasonable diligence in attempting to locate and notify them of dependency proceedings.   The court explained that this case presents a textbook example of a due process violation. DCFS initiated dependency proceedings concerning J.R. on the ground that his father physically abused him. Even though Father told the agency at the outset of the proceedings that Mother resided in El Salvador, the record does not show that DCFS made any attempt to ascertain Mother’s location in that country. The court concluded that Father has standing to assert DCFS’s violation of Mother’s due process rights. View "In re J.R." on Justia Law

T.T. (Mother) challenged a juvenile court’s finding that the federal Indian Child Welfare Act of 1978 (ICWA) did not apply to the dependency proceedings concerning her son, Dominick D. She argued the juvenile court failed to ensure that San Bernardino County Children and Family Services (CFS) discharged its duty of initial inquiry into Dominick’s possible Indian ancestry under California Welfare & Institutions Code section 224.2(b). To this, the Court of Appeal agreed, but declined to address the parties’ arguments concerning harmlessness, because ICWA inquiry and notice errors did not warrant reversal of the juvenile court’s jurisdictional or dispositional findings and orders other than the finding that ICWA did not apply. The Court accordingly vacated that finding and remanded for compliance with ICWA and related California law, but otherwise affirmed. View "In re Dominick D." on Justia Law