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The Ninth Circuit affirmed the district court's grant of summary judgment for the government defendants, in an action brought by the Community challenging Interior's determination that it is ineligible for gaming for purposes of the Indian Gaming Regulatory Act (IGRA). The panel held that the agency's determination was correct, because the IGRA clearly and unambiguously requires federal recognition by the Secretary of the Department of the Interior before a tribe may qualify to participate in Indian gaming. The panel also held that the Frank's Landing Act did not authorize the Community to engage in class II gaming. View "Frank's Landing Indian Community v. National Indian Gaming Commission" on Justia Law

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The Office of Children’s Services (OCS) took custody of a three-month-old child after he was found outside alone on a cold winter day. The child’s mother had an alcohol abuse problem and had failed repeated attempts at treatment. The father also had problems with alcohol abuse, never completing treatment, and spending much of the relevant time period in jail or on probation. The mother and father had a second child while OCS’s case was pending, and the agency took custody of that child as too. OCS then petitioned to terminate parental rights to both children. The superior court granted OCS’s petition following trial. The parents appealed: the father argued the superior court erred when it found OCS’s proposed expert witness, an experienced attorney and guardian ad litem, qualified to testify about whether the children would likely suffer emotional or physical harm if returned to their parents’ care. The Alaska Supreme Court agreed the record did not support a conclusion that the witness met the heightened standard for expert testimony under the Indian Child Welfare Act (ICWA); for that reason the Court reversed the termination order and remanded the case for further proceedings. View "Eva H. v. Alaska, Dept. of Health & Social Services, Office of Children's Services" on Justia Law

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In 2000, the Tribe had agreed to pay Monroe $265 million for Monroe’s 50% ownership interest in the Casino, giving the Tribe a 100% ownership interest. In 2002, the Tribe agreed to another $200 million debt in exchange for a continued gaming license from the Michigan Gaming Control Board (MGCB). In 2005, the Tribe created a new entity (Holdings), which became the Casino’s owner; pre-existing entities owned by the Tribe became Holdings' owners to allow the Tribe to refinance and raise capital to meet its financial obligations. The restructuring was approved by the MGCB, conditioned on the Tribe’s adherence to strict financial covenants. In 2005, Holdings transferred approximately $177 million to various entities. At least $145.5 million went to the original owners of Monroe. At least $6 million went to the Tribe. For three years, the Tribe unsuccessfully attempted to raise additional capital to meet its financial obligations. In 2008, the related corporate entities) filed voluntary petitions for Chapter 11 bankruptcy. The Trustee alleged that the 2005 transfers were fraudulent and sought recovery under 11 U.S.C. 544, 550. The district court and Sixth Circuit affirmed the bankruptcy court’s dismissal of the complaint on the basis of tribal sovereign immunity. The court rejected arguments that Congress intended to abrogate the sovereign immunity of Indian tribes in 11 U.S.C. 106, 101(27). View "Buchwald Capital Advisors LLC v. Sault Ste. Marie Tribe" on Justia Law

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Huber, a member of the Wiyot Band of Indians, owns and operates a tobacco smoke shop on the Table Bluff Rancheria, near Crescent City. Huber “sold huge quantities of noncompliant cigarettes and transported at least 14,727,290 packs to other stores within the state but beyond her reservation; she invoiced over $30 million for these sales. Her employees delivered the cigarettes using her vehicles on state roads. The Attorney General sued, alleging violation of the Unfair Competition Law, Business and Professions Code section 17200 (UCL), citing as predicate “unlawful acts” violations the Tax Stamp Act (Rev. & Tax. Code 30161), the Directory Act (Rev. & Tax. Code 30165.1(e)(2)), and the Fire Safety Act (Health & Saf. Code, 14951(a)). The trial court granted summary adjudication and entered a permanent injunction on all three claims. The court of appeal affirmed, rejecting Huber’s arguments that, under a federal statute granting California courts plenary criminal jurisdiction but limited civil jurisdiction over cases arising on Indian reservations, the trial court lacked authority to proceed on any of the claims, and that, under the doctrine of Indian preemption, which limits the reach of state law to conduct by Indians on Indian reservations, all the statutes were preempted by paramount federal authority. To the extent enforcement occurs off-reservation, the Wiyot right to self-governance is not implicated. View "People v. Huber" on Justia Law

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The Indian Child Welfare Act (ICWA; 25 U.S.C. 1901) gives Indian tribes the right to intervene in dependency proceedings regarding Indian children where foster care placement or termination of parental rights is being sought. The party initiating dependency proceedings must provide the tribe with notice. The Santa Clara County Department of Family and Services filed a juvenile dependency petition on behalf of nine-year-old L.D. At the initial hearing, Mother informed the court of Native Alaskan ancestry. At the dispositional hearing, the Department reported that it had sent notice, in November 2017, to the Native Village of Tanana, the Bureau of Indian Affairs, and the Secretary of the Interior. Receiving no objections, the court found the notice satisfied ICWA. The court found that Mother had sexually abused L.D., who was removed from Mother’s custody with the expectation she would be placed with her maternal grandfather who had been caring for her informally for years. Following another hearing, the court issued a three-year restraining order protecting L.D. from mother. The court later found Mother in violation of the order. Mother filed an appeal from that order but her briefing did not address the restraining order, instead challenging the finding regarding ICWA compliance. The court of appeal dismissed the appeal as untimely but noted that the Department conceded that its notice was inadequate and that notification efforts are continuing. View "In re L.D." on Justia Law

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The Supreme Court affirmed the judgment of the district court terminating Mother’s parental rights to her two minor children for failure to comply with a reunification-oriented treatment plan, holding that the district court’s failure to properly determine whether the children were Indian children before terminating Mother’s parental rights was harmless. On appeal, Mother asserted that the district court abused its discretion by failing properly to confirm or dispel a reason to know that the children were Indian children as defined by the federal Indian Child Welfare Act, 25. U.S.C. 1901, et seq. The Supreme Court affirmed, holding that, in light of a subsequently and conclusive tribal determination that neither child was eligible for tribal enrollment, the district court’s abuse of discretion in failing to comply with 25 U.S.C. 1912(a) and 25 C.F.R. 23.107(b) and 23.108 was harmless. View "In re S.R." on Justia Law

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Bill and Clara are the parents of Noah and Olwen, ages 12 and 5 at the time of the termination trial. Noah and Olwen were Indian children within the meaning of the Indian Child Welfare Act (ICWA) based on their affiliation with the Aleut Community of St. Paul Island (theTribe). Bill and Clara had a lengthy history of alcohol abuse and domestic violence. Noah and Olwen suffered primarily through neglect and mental injury from exposure to their parents’ conduct. While Bill’s and Clara’s violence was typically directed at each other or other family members, there were reports of alleged physical abuse of Noah. The superior court terminated the parents' rights to their children. The parents appealed, arguing the superior court erred in finding, by clear and convincing evidence, that OCS made active efforts to prevent the breakup of the Indian family. Because the Alaska Supreme Court determined there was insufficient evidence to support an active efforts finding under a clear and convincing evidence standard, it reversed the superior court’s active efforts finding, vacated the termination order, and remanded for further proceedings. View "Bill S. v. State, Dept. of Health & Social Services, Office of Children's Services" on Justia Law

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The Supreme Judicial Court affirmed the order of the district court denying the Passamaquoddy Tribe’s motion to intervene in a child protective action involving nonmember children following the removal of the children from the custody of their mother, who resided in the Tribe’s territory, holding that the district court did not err in determining that the Department of Health and Human Services’ removal of the children from the Tribe’s territory was not impermissible state regulation of an “internal tribal matter.” Following the Department’s removal of the children from their mother’s care, the Tribe filed a motion to intervene, alleging that Me. R. Civ. P. 24(a)(2) provided for intervention of right because the removal of the children from the Tribe’s territory constituted impermissible state regulation of an internal tribal matter. The court denied the motion to intervene. The Supreme Judicial Court affirmed, holding (1) the removal of the children did not constitute impermissible state regulation of an internal tribal matter; and (2) the district court did not abuse its discretion by denying the Tribe’s motion for permissive intervention. View "In re Children of Mary J." on Justia Law

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The Supreme Judicial Court affirmed the order of the district court denying Appellants’ and the Oglala Sioux Tribe’s motions to transfer jurisdiction of this child protection matter to the Oglala Sioux Tribal Court pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901-1963, holding that the district court properly found that there was good cause within the meaning of ICWA not to transfer the matter to the Tribal Court. There was no dispute in this case that these were child custody proceedings to which ICWA applied, the children were Indian children within the meaning of ICWA, and the children did not reside on the reservation in South Dakota. Here, the district court focused on the difficulty in the presentation of evidence that would occur if jurisdiction were transferred from Maine to South Dakota. The Supreme Judicial Court affirmed, holding that the court’s denial of the motion to transfer was supported by its findings and conclusions and that the court’s analysis of the geographical challenges posed by a potential transfer was supported by ample evidence, contained no legal errors, and did not represent an abuse of discretion. View "In re Children of Shirley T." on Justia Law

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The Supreme Court affirmed the order of the district court terminating Mother’s parental rights to her two children, holding that the district court did not abuse its discretion when it continued with child custody proceedings before conclusively determining the children’s Indian status. After Mother’s children were adjudicated as youths in need of care the district court terminated Mother’s parental rights. The order stated that the children were not Indian children subject to the provisions of the Indian Child Welfare Act (ICWA). On appeal, Mother argued that the district court erred in categorizing the children outside the scope of ICWA without first making a conclusive determination that the children were not Indian children pursuant to ICWA. The Supreme Court affirmed, holding that the district court did not err when it applied the non-ICWA statutory standards because the court had neither a reason to believe nor a reason to know that the children were Indian children subject to ICWA. View "In re J.J.C." on Justia Law