Justia Native American Law Opinion Summaries

The Ninth Circuit affirmed in part and reversed in part the district court's dismissal based on lack of subject matter jurisdiction of plaintiff's complaint against the Tribe and various individual defendants. Plaintiff alleged that the Tribe, its officers, and members improperly ordered his banishment based on his purported attempt to import alcohol into the City of Togiak, Alaska, and that, in the course of enforcing the banishment order, defendants detained plaintiff in the municipal jail and forced him to board an airplane destined for another city in Alaska.The panel affirmed in part and held that tribal sovereign immunity deprived the district court of subject matter jurisdiction over plaintiff's claims alleged exclusively against the Tribe. Furthermore, the panel affirmed the district court's order dismissing claims against the tribal judicial officers on immunity grounds. However, the panel reversed in part and remanded for the district court to fully consider plaintiff's 42 U.S.C. 1983 claims as to individual defendants in their individual capacities; whether plaintiff is entitled to prospective injunctive relief against individual defendants; and plaintiff's individual tort claims against the individual defendants. Finally, the panel directed the district court to consider whether plaintiff should be granted leave to amend to cure any pleading deficiencies related to his claims. View "Oertwich v. Traditional Village of Togiak" on Justia Law

The sole issue in this appeal of the termination of parental rights was whether San Bernardino County Children and Family Services (CFS) conducted further inquiry into whether the Indian Child Welfare Act’s (ICWA) applied if there was “reason to believe” an Indian child was involved in the dependency proceedings involving nine-year-old K.T. and his two-year-old sister, D. Early on in the case, the children’s mother and K.T.’s father (father) reported they had possible Cherokee, Choctaw, and Blackfeet ancestry and gave CFS contact information for family members who might be able to provide more detail. CFS never followed up, and the juvenile court found ICWA didn’t apply without first ensuring CFS had pursued these leads. About two years into the proceedings, after the parents failed to reunify with the children, the court determined they were likely to be adopted and terminated parental rights. On appeal, mother and father argued that despite having reason to believe K.T. and D. were Indian children, CFS failed to conduct adequate further inquiry to determine whether ICWA applies. CFS conceded their error. As a result, the record did not support the juvenile court’s finding that ICWA did not apply, and the Court of Appeal reversed the orders terminating parental rights and remanded the case for further proceedings. View "In re K.T." on Justia Law

The Ute Indian Tribe of the Uintah and Ouray Reservation (“the Tribe”) temporarily banished Angelita Chegup, Tara Amboh, Mary Jenkins, and Lynda Kozlowicz (“the banished members”). The banished members did not challenge their temporary banishment in a tribal forum, but instead sought relief in federal court by filing a petition for habeas corpus. The banished members contended that, because they were excluded from the reservation by virtue of their banishment, they were “detained” within the meaning of the Indian Civil Rights Act of 1968 (“ICRA”). The district court disagreed and dismissed the suit without considering the Tribe’s alternative position: that the court could not consider the claims at all because the banished members failed to exhaust their tribal remedies. On appeal, the Tenth Circuit Court of Appeals concurred with the district court: "Even though tribal exhaustion is non-jurisdictional, and courts may often choose between threshold grounds for denying relief, we think that under the unique circumstances of this case there was a right choice." Because the district court neither began its analysis with tribal exhaustion nor reached that issue in the alternative, the Tenth Circuit remanded for it to be decided in the first instance. View "Chegup, et al. v. Ute Indian Tribe of the Uintah, et al." on Justia Law

Mother appealed the order terminating her parental rights to four-year-old Antonio R. under Welfare and Institutions Code section 366.26, contending that the Department and the juvenile court failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (ICWA).The Court of Appeal agreed with Mother that Welfare and Institutions Code section 224.2, subdivision (b), required the Department to inquire of the maternal extended family members, and the juvenile court erred in finding ICWA did not apply despite the Department's insufficient inquiry. The court also concluded that the information in the hands of the extended family members was likely to be meaningful in determining whether the child is an Indian child. In this case, the error was prejudicial because the court did not know what information the maternal relatives would have provided had the Department or court inquired. Accordingly, the court conditionally affirmed and remanded for the juvenile court and the Department to comply with the inquiry provisions of ICWA and California law. View "In re Antonio R." on Justia Law

The Court of Appeal affirmed with instructions the jurisdictional and dispositional orders concerning A.C. However, the court concluded that, under the facts of this case, DCFS's failure to ask extended family members about potential Indian ancestry was prejudicial, and thus the court remanded the matter with directions for the juvenile court to order DCFS to comply with Welf. & Inst. Code, section 224.2. In this case, the record reveals readily obtainable information that was likely to bear meaningfully on whether A.C. was an Indian child. The court could not assume that the parents' mere denial of Indian ancestry on a form was sufficient to dispel prejudice from DCFS's failure to ask A.C.'s extended family members about potential Indian ancestry. View "In re A.C." on Justia Law

Mother appealed an order terminating her parental rights under Welfare and Institutions Code section 366.26. She argued that the Department of Children and Family Services and the court failed to comply with Code section 224.2 by inquiring whether her child is or might be an Indian child within the meaning of the federal Indian Child Welfare Act (ICWA). Mother had “denied Native American ancestry for the family.”The court of appeal affirmed, finding any error harmless. The maternal grandmother is the only person Mother identified as a person who should have been asked about Indian ancestry; she had expressed her desire to adopt the child and to have the child placed with her. Under ICWA, when an Indian child is the subject of foster care or adoptive placement proceedings, “preference shall be given, in the absence of good cause to the contrary, to a placement with .. a member of the Indian child’s extended family,” 25 U.S.C. 1915(a), (b). Maternal grandmother, Mother’s counsel, and the child.’s counsel, each of whom requested placement with the maternal grandmother, would have had a strong incentive to bring to the court’s attention any facts that suggest that she is an Indian child. Their failure to do so implies that the maternal grandmother is unaware of such facts. View "In re S.S." on Justia Law

Maria appealed the termination of her parental rights over her three children, who all have the same father, arguing that the Los Angeles County Department of Children and Family Services (DCFS) failed to interview her extended family members about their Indian ancestry. The Indian Child Welfare Act of 1978, 25 U.S.C. 1901, gives Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation; where possible, an Indian child should remain in the Indian community. California Welfare and Institutions Code section 224.2 lists requirements to effectuate the Act’s policies. The court of appeal affirmed. The record does not support Maria’s argument that readily obtainable information would have shed meaningful light on whether the children are Indian children. There was a prior juvenile court finding that two of Maria’s children are not Indian children, the juvenile court asked Maria, the father, and paternal aunt about Indian ancestry, both parents eschewed Indian ancestry, and Maria was living with extended family members whom she could have asked about potential Indian ancestry. It was unlikely that any further inquiry of family members would have yielded information about Indian ancestry. View "In re Darian R." on Justia Law

Congress established the Osage reservation in Oklahoma Territory in 1872. Years later, “mammoth reserves of oil and gas” were found. Congress severed the subsurface mineral estate, reserved it to the tribe, and placed it into trust with the federal government as trustee. Royalties are distributed to tribal members listed on an approved membership roll (a headright).In previous litigation, the Claims Court found the tribe had standing and found the government liable for breaching its fiduciary duties by failing to collect the full amount of royalties and failing to invest the royalty revenue. Individual headright owners (not the present plaintiffs) attempted to intervene. The Claims Court found that the individuals had no legal interest in the dispute because they were not a party to the trust relationship. The $380 million settlement agreement stated that the tribe, “on behalf of itself and the [h]eadright [h]olders,” waived any claims relating to the tribe’s trust assets or resources that were based on violations occurring before September 30, 2011. In a federal suit, filed by individual headright owners, the Tenth Circuit held that headright owners had a trust relationship with the federal government, which was ordered to provide an accounting.In 2019, based on allegations that the accounting revealed mismanagement of the trust fund, headright owners filed the present suit under the Tucker Act and the Indian Tucker Act, citing breach of statutorily imposed trust obligations. The Federal Circuit reversed the dismissal of the suit. A trust relationship exists between the headright owners and the government and the 1906 Act imposes an obligation on the federal government to distribute funds to headright owners in a timely and proper manner. View "Fletcher v. United States" on Justia Law

The juvenile court sustained a Welfare and Institutions Code section 3002 petition that alleged the mother (S.V.) had brandished a knife and pushed a female companion in the now-three-year-old child’s presence.A social worker inquired of S.V. about the child’s Indian ancestry; she did not give the social worker any reason to believe the child was or might be an Indian child. In preparing the detention report, a social worker interviewed the child’s maternal great-grandmother and maternal great-grandfather. It is not clear whether the social worker asked any relatives about the child’s Indian ancestry. S.V. filed a form stating that she did not have any Indian ancestry as far as she knew. If that changed, S.V. was to inform the court and the social worker. The juvenile court then inquired whether S.V. knew if alleged the father had Indian ancestry. She indicated that he did not have Indian ancestry. The court found it had no reason to know that the alleged father had Indian ancestry; his whereabouts were unknown.The court of appeal remanded. The first-step inquiry duty under the Indian Child Welfare Act, 25 U.S.C. 1903(2), requires the Department to interview, among others, extended family members and others who had an interest in the child. View "In re H.V." on Justia Law

Fisher was charged with conspiracy to distribute 50 grams or more of methamphetamine and two counts of possession with intent to distribute 50 grams or more of methamphetamine, 21 U.S.C. 841(a)(1); 846. The government filed notice that Fisher was subject to an enhanced sentence based on his prior conviction for first-degree burglary under Minnesota law, 21 U.S.C. 841(b)(1)(A). Fisher pleaded guilty to one count of possession with intent to distribute methamphetamine but objected to the enhanced sentence and requested sentencing credit for the time he served in tribal jail for a tribal court conviction based on the same conduct.The district court overruled Fisher’s objection to the sentence enhancement and denied Fisher’s request to credit his time served in tribal jail, reasoning that it did not have the authority to impose a sentence below the mandatory minimum. The district court sentenced Fisher to 180 months’ imprisonment, the statutory minimum for a defendant with a “serious violent felony” conviction. The Eighth Circuit affirmed. While Minnesota’s statute is broader than the generic definition of burglary, it is divisible; applying the modified categorical approach, Fisher’s conviction for burglary with assault is a “serious violent felony.” Treating discharged and undischarged sentences differently does not violate the Due Process Clause. View "United States v. Fisher" on Justia Law