Justia Native American Law Opinion Summaries

The dependency petition alleged that mother "K.B." had beat X.B., her youngest son, with a belt causing welts and bruises to his chest, shoulder, arms, and legs, and that she pushed X.B.’s head into a pillow to muffle his screams, causing him to feel as if he were suffocating. The petition alleged that mother had a history of using inappropriate discipline techniques on her sons, such as beating them with belts, humiliating K.B. in public, and forcing K.B. to complete strenuous exercise routines as punishment. The petition also alleged that mother allowed her live-in boyfriend to inappropriately punish K.B. and to smoke marijuana in the children’s presence. K.B. appealed the trial court’s order placing X.B. with his nonoffending and noncustodial biological father, K.D. (father), who lived out of state. She argued that the court erred by failing to find under Welfare and Institutions Code section 361.2, subdivision (a), that it would be detrimental to X.B.’s emotional well-being to be separated from his maternal family. Mother requested that X.B. be placed with his older sibling in the home of his maternal grandmother. She also argued that the court failed to give proper notice under the Indian Child Welfare Act (ICWA). Finding no reversible error, the Court of Appeal affirmed the judgment. View "In re K.B." on Justia Law

Michael C. appeals a juvenile court judgment terminating his parental rights to his minor daughter A.C., and selecting adoption as her permanent plan. Father mainly argued that no sufficient evidence supported the court's underlying findings that: (1) the Agency's adoption assessment report was adequate and up to date on the child's mental and emotional status; and (2) there was no applicable exception to adoption preference. In addition, the Father sought review, by way of designating his appeal to be a writ proceeding, of certain of the juvenile court's earlier orders from the 12-month review and referral hearing, claiming he did not forfeit such claims, even though his previously appointed appellate attorney declined to file such a writ petition after the 12-month orders were made (to that end, Father argued he received ineffective assistance of counsel). Accordingly, Father now asked the Court of Appeal to consider whether the 12-month referral hearing orders were still reviewable because they failed to meet the standards of the Indian Child Welfare Act regarding sufficient evidence: (1) of "ICWA detriment" to return the child to his custody; and (2) whether "active reunification efforts" were made that allowed the juvenile court to rule that his reunification services were adequate and could properly be terminated at the 12-month review and referral hearing. After careful consideration of these arguments in light of the trial court's record, the Court of Appeal determined there was no adequate showing in support of Father's claims of ineffective assistance of counsel, and further, he has forfeited the substantive arguments he raised about the orders made at the 12-month review hearing. "Even if we were to consider those claims on a writ basis, we would find them meritless." Regarding the judgment that terminated his parental rights and selected adoption as the permanent plan for the child, the Court found no prejudicial error or abuse of discretion occurred, and that the judgment was supported by substantial evidence. Accordingly, the Court affirmed. View "In re A.C." on Justia Law

Long, a member of the Lower Brule Sioux Tribe, operated the “OC Store,” a novelty store, on the reservation. The store had few exterior windows. BIA Officer Spargur encountered juveniles, carrying fireworks. One juvenile stated that he just bought them at the OC Store. Spargur went to the Store, was unsure whether it was closed, but concluded the store was open because of lights, music, unlocked doors, and the juveniles’ report that they had “just” purchased fireworks. Spargur entered through two unlocked doors, stopped at a third door, and “knock[ed] and announce[d] police.” Receiving no response, Spargur opened the main door, and, seeing Long’s son, entered the store. Another of Long’s sons acknowledged the juveniles had been in the store. Spargur noticed a small package on one of the concession tables that, based on his experience and training, he “recognized . . . as a package normally holding synthetic marijuana.” Once Long emerged, Spargur reminded him not to sell fireworks after Independence Day, left the store, and prepared an affidavit for a search warrant. A judge, 60 miles away, approved the warrant by telephone. Spargur and others searched the store, seizing 80 grams of synthetic marijuana. Long conditionally pled guilty to possession with intent to distribute a controlled substance, 21 U.S.C. 841(a)(1). The Eighth Circuit affirmed denial of a motion to dismiss, finding that the officers’ actions did not violate the Fourth Amendment. View "United States v. Long" on Justia Law

In April 2013, plaintiffs filed a complaint in Utah state court seeking declaratory and injunctive relief. The complaint sought a declaration as to the authority of the Ute Indian Tribe of the Uintah and Ouray Reservation (the "Tribe") over non-Indian businesses operating on certain categories of land. It also alleged that Dino Cesspooch, Jackie LaRose, and Sheila Wopsock (individuals affiliated with the Ute Tribal Employment Rights Office ("UTERO")), had harassed and extorted plaintiffs in violation of state law. Defendants filed a motion to dismiss in state court by way of a special appearance, arguing that service of process had been insufficient, that the state court lacked subject matter jurisdiction in the absence of a valid waiver of tribal sovereign immunity, that the Tribe and its officers were immune from suit but were necessary and indispensable parties, and that plaintiffs failed to exhaust administrative remedies in tribal court. Cesspooch and LaRose were properly served. Two attorneys for the defendants moved for pro hac vice admissions. The motions were granted. Following a hearing on the motion to dismiss, the state court ordered further briefing on whether defendants' motion constituted a general appearance and authorized substituted service on the Tribe and Wopsock. The court then granted plaintiffs' motion to file an amended complaint adding additional defendants. The Tribe, Cesspooch, LaRose, and Wopsock were served the amended complaint. The Tribe filed a notice of removal in the U.S. District Court for the District of Utah. In its notice, the Tribe stated that Cesspooch, LaRose, and Wopsock consented to removal, and that the remaining defendants would consent. The remaining defendants (save one) filed consent and joinders to removal. Plaintiffs moved to remand, arguing that the initial defendants waived their right to removal (or to consent to removal) by litigating in state court, removal was untimely, the defendants had not unanimously consented to removal, and that the federal court lacked subject matter jurisdiction. The district court granted the motion to remand. The Tribe appealed the remand order. The Tenth Circuit dismissed this appeal, finding that under 28 U.S.C. 1447(d), a district court order remanding a case to state court was "not reviewable on appeal or otherwise." Further, the Court held that a district court order remanding because the defendants did not unanimously join or consent to removal was patently "not reviewable." In addition, the Court concluded that the remand order in this case was colorably characterized as being based on lack of unanimity. View "Harvey v. Ute Indian Tribe" on Justia Law

The indictment alleged that "within the Omaha Indian Reservation in Indian Country, [Webster], an Indian male, did knowingly engage in a sexual act with A.C., a child who had not attained the age of 12 years.” The jurisdictional statute, 18 U.S.C. 1152, provides: Except as otherwise expressly provided … the general laws of the United States … shall extend to the Indian country. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian ... who has been punished by the local law of the tribe. The indictment did not allege A.C. was a non-Indian or that Webster had not faced tribal punishment. At trial, Webster stipulated that he is an Indian and A.C. is a non-Indian. The court excluded references to a tribal complaint filed against Webster, which had been dismissed. Webster was convicted of aggravated sexual abuse of a child, 18 U.S.C. 2241(c). The Eighth Circuit affirmed, rejecting a challenge to the sufficiency of the evidence and upholding the decision not to admit the tribal complaint. Even if the victim’s status is an element of section 1152, the indictment’s failure to allege A.C.’s status did not render it “so defective that by no reasonable construction can it be said to charge the offense.” View "United States v. Webster" on Justia Law

Mother appealed the trial court's order terminating her parental rights with regard to her daughter. At issue on appeal is compliance with notice provisions of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. 1901 et seq. The court concluded that there is a duty under the IWCA to send updated notices to the relevant tribes when additional information regarding a child's ancestors is obtained after the original ICWA notices were sent. In this case, because the Department failed to send updated notices after it obtained additional information, the court reversed the order terminating parental rights. View "In re I.B." on Justia Law

At dispute in this case was the Crow Water Compact - an agreement among the United States, the Crow Tribe, and the State - which recognizes a Tribal Water Right of the Crow Tribe and its members in a number of sources of water that abut or cross the Crow Indian Reservation in Montana. Here, a group of Crow tribal member Allottees - persons who hold interests in parcels of former Tribal land mostly created by the General Allotment Act - objected to the Compact in the Water Court, claiming that the United States breached its fiduciary duties to the Allottees by failing to protect their water rights in the Compact and failing to adequately represent them in Compact proceedings. The Water Court dismissed the Allottees’ objections. The Supreme Court affirmed, holding that the Water Court (1) applied the proper legal standard of review in dismissing the Allottees’ objections; (2) did not exceed its jurisdiction by dismissing the Allottees’ action rather than staying consideration of the Compact pending resolution of the Allottees’ action in federal district court; and (3) did not err in determining that the Allottees have rights to a share of the Crow Tribal Water Right and that the United States adequately represented the Allottees during the Compact negotiations. View "In re Crow Water Compact" on Justia Law

The Tulalip invoked the district court's continuing jurisdiction by filing a request for determination of the scope of the Suquamish's usual and accustomed fishing grounds and stations (U&A). Ruling on cross motions for summary judgment, the district court concluded that Judge Boldt did not intend to exclude the contested areas from the Suquamish’s U&A and entered judgment accordingly. The court held that the Tulalip did not meet its burden to demonstrate that there was no evidence before Judge Boldt supporting Suquamish fishing or traveling through the western contested waters. Accordingly, the court affirmed the judgment of the district court. View "Tulalip Tribes v. Suquamish Indian Tribe" on Justia Law

Defendant Jeffrey Zander was convicted of two counts of mail fraud, two counts of wire fraud, one count of money laundering, and three counts of willful failure to file federal tax returns. The fraud and money laundering counts at issue in this appeal all arose out of Defendant’s scheme to divert federal grant money intended for the Paiute Indian Tribe for his own personal use. Defendant began working for the Tribe as a tribal planner in 1998, and he subsequently became the Tribe’s trust resource and economic development director. As a director, Defendant worked independently with minimal supervision. In about 2004 or 2005, Defendant suggested the Tribe seek federal grant money to fund the development of an Integrated Resource Management Plan (IRMP) for each of the Tribe's bands. The agency approved and awarded the following five IRMP development grants. Instead of hiring an outside consultant and facilitator to help develop IRMPs for each band, Defendant created false invoices and purchase orders for four fictitious companies and represented to the Tribe that these companies had provided consulting and facilitating services for the IRMP development projects. Based on these representations, the Tribe issued checks made out to these nonexistent companies and, at Defendant’s direction, either mailed the checks to post office boxes that were actually owned or controlled by Defendant or gave them to Defendant to hand-deliver to the purported companies. Defendant was sentenced to sixty-eight months of imprisonment and ordered to pay $202,543.92 in restitution to the Tribe. On appeal, he challenged his convictions on the mail fraud, wire fraud, and money laundering counts. He also challenged the length of his sentence and the amount of restitution awarded to the Tribe. Upon review, the Tenth Circuit found the trial court miscalculated defendant's sentence and restitution amount. It reversed and remanded for recalculation. The Court affirmed in all other respects, finding no reversible error. View "United States v. Zander" on Justia Law

A.W., 10 months old, lived with his mother, Maxwell; his father, White; and half-siblings. A.W. was developing normally. On August 30, Maxwell took a walk with the other children, returning 10 minutes later. White met them at the door and stated that A.W. was choking and that he had found a cigarette filter in A.W.’s mouth. At the hospital, A.W. seized, breathed irregularly, had unequal pupils, and had extensor posturing, which can indicate injury at the deepest part of the brain. A doctor noticed bruising, estimated to be hours old, and believed that A.W. had been “shaken.” At a Fargo medical center, doctors found a brain hemorrhage and concluded that A.W. had shaken baby syndrome. His parents raised concerns about Maxwell’s eight-year old son, J.S., who may have played a role in the death of dogs who were thrown against a tree; knocked out another child’s teeth; threw rocks at children; and had previously injured A.W. A.W. survived and was placed into a therapeutic foster home for medically fragile children. A jury found White guilty of assault resulting in serious bodily injury in Indian country, 18 U.S.C. 113(a)(6), 1151, 1153(a). The court granted White’s motion for acquittal. The Eighth Circuit reversed. The government’s case favored guilt. There was evidence about J.S., but also evidence that a reasonable jury could find to be powerful evidence of White’s guilt and evidence that J.S. did not injure A.W. on August 30. View "United States v. White" on Justia Law