Justia Native American Law Opinion SummariesArticles Posted in Native American Law
Colorado in interest of My.K.M. and Ma. K.M.
This termination of parental rights case concerned the “active efforts” required under the Indian Child Welfare Act (“ICWA”) to provide remedial services and rehabilitative programs to assist a parent in completing a court-ordered treatment plan. A division of the Colorado court of appeals reversed a juvenile court’s judgment terminating Mother’s parent-child legal relationship with her two Native American children, holding that the Denver Department of Human Services (“DHS”) did not engage in the “active efforts” required under ICWA to assist Mother in completing her court-ordered treatment plan because it did not offer Mother job training or employment assistance, even though Mother struggled to maintain sobriety and disappeared for several months. The Colorado Supreme Court held that “active efforts” was a heightened standard requiring a greater degree of engagement by agencies, and agencies must provide a parent with remedial services and resources to complete all of the parent’s treatment plan objectives. The Court was satisfied the record supported the juvenile court’s determination that DHS engaged in active efforts to provide Mother with services and programs to attempt to rehabilitate her and reunited the family. The appellate court’s judgment was reversed and the matter remanded for that court to address Mother’s remaining appellate contentions. View "Colorado in interest of My.K.M. and Ma. K.M." on Justia Law
APACHE STRONGHOLD V. USA
A 2014 act of Congress requires the U.S. Secretary of Agriculture to convey Oak Flat to a mining company. In exchange, the mining company was to convey a series of nearby plots of land to the United States (the “Land Exchange”).Plaintiff, a nonprofit organization advocating on behalf of Apache American Indians, sued the government, alleging that the Land Exchange violated the Religious Freedom Restoration Act (“RFRA”), the Free Exercise Clause, and the 1852 Treaty of Santa Fe. The district court denied Plaintiff's request for a preliminary injunction and Plainitff appealed.On appeal, the Ninth Circuit held that, although the government's action was burdensome, it did not create a "substantial burden" under the RFRA. Next, the court held that the Plaintiff's Free-Exercise claim failed because the Land Exchange was neutral in that its object was not to infringe upon the Apache’s religious practices. Finally, the court held that Plaintiff could not establish that the Treaty of Santa Fe imposes an enforceable trust obligation on the United States. Thus, the court affirmed the district court’s order denying Plaintiff's motion for a preliminary injunction. View "APACHE STRONGHOLD V. USA" on Justia Law
Ysleta del Sur Pueblo v. Texas
In 1968, Congress recognized the Ysleta del Sur Pueblo Indian tribe. In 1983, Texas renounced its trust responsibilities with respect to the Tribe and expressed opposition to any new federal legislation that did not permit the state to apply its gaming laws on tribal lands. Congress restored the Tribe’s federal trust status in the 1987 Restoration Act, “prohibiting” all “gaming activities which are prohibited by the laws of the State of Texas.” Congress then adopted the Indian Gaming Regulatory Act (IGRA), which permitted Tribes to offer class II games—like bingo—in states that “permi[t] such gaming for any purpose by any person, organization or entity,” 25 U.S.C. 2710(b)(1)(A). IGRA allowed Tribes to offer class III games—like blackjack and baccarat—only pursuant to negotiated tribal/state compacts. Texas refused to negotiate a compact regarding class III games. In 1994, the Fifth Circuit held that the Restoration Act superseded IGRA.In 2016, the Tribe began offering bingo, including “electronic bingo.” The Fifth Circuit upheld an injunction, shutting down all of the Tribe’s bingo operations.The Supreme Court vacated. The Restoration Act bans, on tribal lands, only those gaming activities also banned in Texas. Texas laws do not “forbid,” “prevent,” or “make impossible” bingo operations but allow the game according to rules concerning time, place, and manner. Texas’s bingo laws are regulatory, not prohibitory. When Congress adopted the Restoration Act, Supreme Court precedent held that California’s bingo laws—materially identical to Texas’s laws—were regulatory and that only “prohibitory” state gaming laws could be applied on the Indian lands in question, not state “regulatory” gaming laws. The Restoration Act provides that a gaming activity prohibited by Texas law is also prohibited on tribal land as a matter of federal law. Other gaming activities are subject to tribal regulation and must conform to IGRA. View "Ysleta del Sur Pueblo v. Texas" on Justia Law
In re Dezi C.
Parents of the two children at issue in a juvenile dependency case repeatedly denied having any American Indian heritage. The social services agency spoke with several of the parents’ relatives but never asked those relatives whether the children had any American Indian heritage. Nearly 30 months into the proceedings and on appeal from the termination of her parental rights, the biological mother objected that the agency did not discharge its statutory duty to inquire whether her children might be “Indian children” within the meaning of the state’s broader version of the federal Indian Child Welfare Act (“ICWA”). The Second Appellate District affirmed the trial court’s ruling. The court explained that there is no dispute that the agency did not properly discharge its statutory duty. However, the critical inquiry is whether the error was harmless and how harmlessness is to be assessed. The court offered a fourth rule: An agency’s failure to discharge its statutory duty of initial inquiry is harmless unless the record contains information suggesting a reason to believe that the children at issue may be “Indian child[ren],” in which case further inquiry may lead to a different ICWA finding by the juvenile court. Here, the court held that the error was harmless, because the record contains the parents’ repeated denials of American Indian heritage, because the parents were raised by their biological relatives, and because there is nothing else in the record to suggest any reason to believe that the parents’ knowledge of their heritage is incorrect. View "In re Dezi C." on Justia Law
PAUL GRONDAL V. USA
In a series of appeals concerning a business lease which Defendant Wapato Heritage, LLC, once held on waterfront land within the Colville Indian Reservation in Washington State, the Ninth Circuit affirmed (1) the district court’s dismissal of Wapato Heritage cross-claims against the Confederated Tribes of the Colville Reservation and the Bureau of Indian Affairs; and (2) the district court’s denial of Wapato Heritage’s motion to intervene in a trespass damages trial between the Bureau of Indian Affairs and other parties. The district court dismissed Wapato Heritage’s cross-claims against the Tribes and the BIA because of tribal sovereign immunity, lack of subject matter jurisdiction, and failure to state a claim The court explained the instances where tribal participation in litigation will constitute a waiver of tribal sovereign immunity must be viewed as very limited exceptions to the general rule that preserves tribal sovereign immunity absent an unequivocal expression of waiver in clear terms. Here, the Tribes did not waive their sovereign immunity to Wapato Heritage’s cross-claims as to the 2009 and 2014 replacement leases. The Tribes invoked their immunity from suit in two Fed. R. Civ. P. 12(b)(1) motions to dismiss Wapato Heritage’s cross-claims for lack of jurisdiction, which was granted. The Tribes retained their sovereign immunity to the cross-claims, and the district court did not need to rule on the claims’ merits. The court rejected Wapato Heritage’s contention that the appeal did not relate to Indian Trust land, finding that MA-8 was still Indian allotment land held in trust by the BIA. View "PAUL GRONDAL V. USA" on Justia Law
Denezpi v. United States
The Bureau of Indian Affairs filed a CFR court complaint against Denezpi, a member of the Navajo Nation, charging Denezpi with crimes alleged to have occurred within the Ute Mountain Ute Reservation: assault and battery, terroristic threats, and false imprisonment. CFR courts administer justice for Indian tribes where tribal courts have not been established. Denezpi pleaded guilty to assault and battery and was sentenced to time served. Months later, a federal grand jury indicted Denezpi for aggravated sexual abuse in Indian country, under the federal Major Crimes Act. Denezpi unsuccessfully argued that the Double Jeopardy Clause barred the consecutive prosecution and was sentenced to 360 months’ imprisonment.The Tenth Circuit and Supreme Court affirmed. The Double Jeopardy Clause does not bar successive prosecutions of distinct offenses arising from a single act, even if a single sovereign prosecutes them. Denezpi’s single act transgressed two laws: the Ute Mountain Ute Code’s assault and battery ordinance and the U.S. Code’s proscription of aggravated sexual abuse in Indian country. The two laws—defined by separate sovereigns—proscribe separate offenses, so Denezpi’s second prosecution did not place him in jeopardy again “for the same offence.” The Court did not address whether CFR prosecutors exercise tribal or federal authority because the Double Jeopardy Clause does not prohibit successive prosecutions by the same sovereign but only prohibits successive prosecutions “for the same offence.” The Double Jeopardy Clause does not ask who puts a person in jeopardy; it focuses on what the person is put in jeopardy for. View "Denezpi v. United States" on Justia Law
Mona J. v. Alaska Dept. of Health & Soc. Srvcs.
The superior court terminated a mother’s parental rights to her two children. Because the children were Indian children under the Indian Child Welfare Act (ICWA), 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 before the mother’s rights could be terminated. The superior court found clear and convincing evidence that OCS satisfied this requirement, although OCS’s efforts were ultimately unsuccessful. The mother appealed, challenging the active efforts finding. She asked the Alaska Supreme Court to overturn precedent allowing courts to consider a parent’s noncooperation and the resulting futility of OCS’s actions when determining whether OCS satisfied the active efforts standard. In the alternative, she argued that even under existing law the superior court’s active efforts finding was erroneous. After review, the Supreme Court agreed with the mother that the court erred by stating that active efforts “are dependent on [the mother’s] willingness to engage”; the active efforts inquiry depends primarily on OCS’s efforts, not the parent’s reaction to those efforts. The Court took an opportunity to clarify the extent to which a parent’s noncooperation was relevant to the active efforts analysis. "And although we disagree in part with the superior court’s approach in this case, we independently conclude that OCS’s efforts satisfy the active efforts standard," therefore affirming the termination order. View "Mona J. v. Alaska Dept. of Health & Soc. Srvcs." on Justia Law
Interest of A.C.
A.L. appealed an order terminating his parental rights over A.C. A.L. argued the juvenile court erred in finding the Cass County Human Services Zone engaged in active efforts to prevent the breakup of an Indian family as required under the Indian Child Welfare Act (“ICWA”). A.L. also argued the State failed to prove beyond a reasonable doubt that continued custody of A.C. by A.L. would likely result in serious harm to A.C. The North Dakota Supreme Court retained jurisdiction and remanded for further factual findings on the ICWA requirements and North Dakota law as codified by N.D.C.C. 27-20.3-19. View "Interest of A.C." on Justia Law
In re M.E.
C.M., mother of four minors (mother), appealed juvenile court’s orders terminating parental rights and freeing the minors for adoption. Her sole contention on appeal was that the Placer County Department of Health and Human Services and juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA). After review, the Court of Appeal agreed and remanded for the limited purpose of ensuring compliance with the ICWA. View "In re M.E." on Justia Law
CFPB V. CASHCALL, INC.
CashCall made unsecured, high-interest loans to consumers throughout the country, and sought to avoid state usury and licensing laws by using an entity operating on an Indian reservation. The entity issued loan agreements that contained a choice-of-law provision calling for the application of tribal law. The Consumer Financial Protection Bureau brought an action alleging that the scheme was an “unfair, deceptive, or abusive act or abusive practice.” 12 U.S.C. Section 5536(a)(1)(B). The district court held that CashCall violated the Consumer Financial Protection Act (“CFPA”). The court first considered whether the Bureau lacked authority to bring this action because it was unconstitutionally structured. The court found despite the unconstitutional limitation on the President’s authority to remove the Bureau’s Director, the Director’s actions were valid when they were taken. Both the complaint and the notice of appeal were filed while the Bureau was headed by a lawfully appointed Director. The court declined to consider CashCall’s new theory that the Bureau’s structure violated the Appropriations Clause of the Constitution. Next, the court held that the Tribe had no substantial relationship to the transactions, and because there was no other reasonable basis for the parties’ choice of tribal law, the district court correctly declined to give effect to the choice-of-law provision in the loan agreements. The court concluded that from September 2013, the danger that CashCall’s conduct violated the CFPA was so obvious that CashCall must have been aware of it. The court vacated the civil penalty and remanded with instructions that the district court reassess it. View "CFPB V. CASHCALL, INC." on Justia Law