Justia Native American Law Opinion Summaries

In late August 2020, Yazzie initiated an action challenging Arizona's Receipt Deadline pursuant to Section 2 of the Voting Rights Act of 1965 (VRA), the Equal Protection Clause of the United States Constitution, and the Arizona Constitution's election clause. The complaint alleges that Navajo Nation reservation residents face myriad challenges to voting by mail where many on-reservation members do not have home mail service. Rather, to receive or send mail, they must travel to a post office. Furthermore, socioeconomic factors, educational disadvantages, and language barriers make both the travel to the post office—which requires access to a car—and the completion of mail ballots difficult. Yazzie also claims that these mail ballots take disproportionately longer to reach the county recorder's office because of the slower mail service on the reservation. In late September 2020, the district court denied Yazzie's motion for preliminary injunction based on its finding that Yazzie did not demonstrate a likelihood of success on the merits or raise serious questions going to the merits of Yazzie's VRA claim.The Ninth Circuit affirmed the district court's denial of Yazzie's request for a preliminary injunction. The panel did not address the district court's analysis of the VRA claim because it concluded that Yazzie and the other plaintiffs lack standing. The panel stated that not only does Yazzie fail to make a clear showing of a concrete and particularized injury, noticeably absent in the record is any particularized allegation with respect to any of the six individual plaintiffs. The panel also stated that, importantly, this case is not a putative class action filed on behalf of the Navajo Nation members who reside on the reservation. In this case, Yazzie failed to establish injury-in-fact for at least one of the individual plaintiffs in the lawsuit. The panel concluded that also missing is a clear showing that the alleged injury is redressable by a favorable decision by this court. View "Yazzie v. Hobbs" on Justia Law

C.V. (Mother) appealed an order issued under Welfare and Institutions Code section 366.261 selecting adoption as the permanent plan for her son N.S. and terminating her parental rights. N.S.’s father was a member of the San Pasqual Band of Mission Indians (the Tribe). The Tribe was involved in this case since the juvenile court found that N.S. was an Indian child and that the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA) applied. On appeal, Mother contended: (1) the Tribe’s “decree” selecting guardianship as the best permanent plan option for N.S. preempted the statutory preference for adoption under section 366.26; (2) N.S.’s counsel breached his duties under section 317 and provided ineffective assistance of counsel by failing to discover what Tribal benefits or membership rights were available to N.S. before the termination of parental rights; (3) the court erred in finding that the Indian child exception of section 366.26, subdivision (c)(1)(B)(vi)(I) and (II) did not apply to preclude termination of parental rights; (4) there was insufficient evidence to support the court’s finding beyond a reasonable doubt that continued custody in Mother’s care would be a substantial risk to N.S.; and (5) the court erred in finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) does not apply to preclude termination of parental rights. Finding no reversible error, the Court of Appeal affirmed. View "In re N.S." on Justia Law

The Court of Appeal affirmed the juvenile court's jurisdictional findings and dispositional orders, holding that substantial evidence supports the juvenile court's finding that the Indian Child Welfare Act of 1978 (ICWA) does not apply here. Mother contends that the juvenile court and DCFS failed to satisfy the formal notice requirements under the ICWA and related California law.In this case, the initial inquiry conducted by the juvenile court created a "reason to believe" the children possibly are Indian children; DCFS's repeated efforts to gather information concerning the children's maternal ancestry constitutes substantial evidence that DCFS met its duty of further inquiry; but the juvenile court and DCFS's further investigation did not yield results that pushed their reason to believe the children are Indian children, to reason to know the children are Indian children. The court explained that a suggestion of Indian ancestry is not sufficient under ICWA or related California law to trigger the notice requirement. Because DCFS was not required to provide formal notice to the pertinent tribes, the court did not reach Mother's argument that the ICWA notices may have lacked necessary information. View "In re Dominic F." on Justia Law

The Pueblos of Jemez, Santa Ana, and Zia resided along the Jemez River at a time when their lands passed from Spanish to Mexican sovereignty, and finally to the United States. In 1983, the United States initiated a water-rights adjudication for the Jemez River Basin, claiming water rights on behalf of the Pueblos. The issue this case presented for the Tenth Circuit's review centered on whether the Pueblos' aboriginal water rights were extinguished by the imposition of Spanish authority "without any affirmative adverse act." No matter the method used, the sovereign’s intent to extinguish must be clear and unambiguous; “an extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.” Moreover, “if there is doubt whether aboriginal title has been validly extinguished by the United States, any ‘doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of’ the Indians.” The Tenth Circuit reversed the district court, finding that while "All conquering sovereigns possess authority over their land and resources ... not until the sovereign exercises this authority through clear and adverse affirmative action may it extinguish aboriginal rights." View "United States v. Abouselman" on Justia Law

Title V of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) makes certain funds available to the recognized governing bodies of any "Indian Tribe" as that term is defined in the Indian Self-Determination and Education Assistance Act (ISDA).The DC Circuit held that Alaska Native Corporations (ANCs), state-chartered corporations established by Congress to receive land and money provided to Alaska Natives in settlement of aboriginal land claims, do not qualify as Indian Tribes under the CARES Act and ISDA. Therefore, ANCs are not eligible for funding under Title V of the CARES Act.The court stated that an ANC cannot qualify as an "Indian tribe" under ISDA unless it has been "recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians;" because no ANC has been federally "recognized" as an Indian tribe, as the recognition clause requires, no ANC satisfies the ISDA definition; although ANCs cannot be recognized as Indian tribes under current regulations, it was highly unsettled in 1975, when ISDA was enacted, whether Native villages or Native corporations would ultimately be recognized; and the Alaska clause does meaningful work by extending ISDA's definition of Indian tribes to whatever Native entities ultimately were recognized—even though, as things later turned out, no ANCs were recognized. Accordingly, the court reversed the district court's grant of summary judgment to the government and the intervenors, as well as the district court's denial of summary judgment to the plaintiff tribes. View "Confederated Tribes of the Chehalis Reservation v. Mnuchin" on Justia Law

The Ninth Circuit reversed the district court's dismissal for lack of standing of a tribal health organization's action seeking declaratory relief regarding alleged violations of a federal law concerning the provision of health services to Alaska Natives. The panel held that SCF alleges an injury in fact sufficient to confer Article III standing in two distinct ways: first, that ANTHC infringed SCF's governance and participation rights under Section 325 of the Department of the Interior and Related Agencies Appropriations Act of 1998 by delegating the full authority of the fifteen-member Board to the five-person Executive Committee; and second, that ANTHC erected informational barriers in the Code of Conduct and Disclosure Policy that deprived SCF of its ability to exercise effectively its governance and participation rights. The panel remanded for further proceedings. View "Southcentral Foundation v. Alaska Native Tribal Health Consortium" on Justia Law

Defendant-appellant Patrick Begay assaulted a man in the Navajo Nation with a baseball bat and a knife. The crime thus occurred in Indian country, within the boundaries of the reservation. Both Begay and the victim were enrolled members of the Navajo Nation. Begay was indicted in federal court on two counts of assault with a dangerous weapon and one count of assault resulting in serious bodily injury. He pled guilty to these charges. The Probation Office issued a Presentence Report (“PSR”) calculating Begay’s guidelines imprisonment range to be 46 to 57 months. Begay requested that the court vary from this range because significantly higher penalties are imposed on Native Americans convicted of assault in New Mexico federal court than in New Mexico state court. Defense counsel requested to submit testimony regarding this asserted sentencing disparity. The government objected, arguing that under our precedents, if the district court “even considers this argument or this train of argument in any way whatsoever, any sentence rendered by the [c]ourt becomes invalid.” The sentencing judge agreed stating that she could not consider Begay’s sentencing-disparity argument pursuant to Tenth Circuit precedent. Moreover, the judge stated should would not consider the argument because the evidence Begay offered to present lacked sufficient detail to make any comparison of his sentence to state-court sentences meaningful. Begay was sentenced to 46 months' imprisonment. Although the Tenth Circuit Court of Appeals was sympathetic to Begay’s argument that but for an “an accident of history and geography,” he would have received a lighter sentence, the Court concluded its precedents foreclosed the consideration of federal/state sentencing disparities under 18 U.S.C. 3553(a)(6). Accordingly, the Court affirmed the district court's judgment. View "United States v. Begay" on Justia Law

The Ninth Circuit affirmed the district court's dismissal for failure to join a required party in an action challenging the Jamul Indian Village's efforts to build a casino. The panel held that the distinction JAC urges between historic tribes and other tribal entities organized under the Indian Reorganization Act is without basis in federal law. The panel held that Jamul Indian Village is a federally recognized Indian tribe with the same privileges and immunities, including tribal sovereign immunity, that other federally recognized Indian tribes possess. Therefore, the Village's tribal sovereign immunity extends to its officers in this case. Because the Village is protected by tribal sovereign immunity, the panel agreed with the district court that the Village cannot be joined in this action and that the action cannot proceed in equity and good conscience without it. View "Jamul Action Committee v. Simermeyer" on Justia Law

Nanouk uses her 160-acre Alaska Native allotment for traditional subsistence activities. In the 1980s, Nanouk built a small cabin, which she and her family reached by using a trail that runs from the main road through the U.S. Air Force North River Radio Relay Station, which closed in 1978. In 1981, the General Accounting Office criticized the Air Force’s failure to maintain shuttered sites, including North River, which contained hazardous chemicals. The Air Force and the Army Corps of Engineers began remediation, removing 500 gallons of transformer oil containing PCBs and PCB-contaminated soil. Surveys taken in 1987 and 1989 revealed that 6,700 cubic yards of contaminated soil remained. The Air Force and the Corps released a new plan in 2001; clean-up resumed. The trail that Nanouk used ran through a “hot spot” where PCB-contaminated soil was picked up by her vehicles. Nanouk did not learn about the PCBs on her property until 2003 when she reported a strong chemical odor. The Air Force then undertook extensive environmental remediation at the Station and Nanouk’s allotment. Nanouk sued, alleging trespass and nuisance. She and several family members have experienced serious health problems.The Ninth Circuit vacated the dismissal of her suit. The Federal Tort Claims Act's discretionary exception barred claims predicated on two of the acts she challenged as negligent--the government’s alleged failure to supervise contractors during the Station’s operation, and its abandonment of the property between the 1978 closure and 1990. The government did not establish that the exception barred the claims relating to the failure to identify and remediate the hot spot in a timely manner after 1990. View "Nanouk v. United States" on Justia Law

The "[Indian Child Welfare Act] ICWA and [Washington State Indian Child Welfare Act] WICWA were enacted to remedy the historical and persistent state-sponsored destruction of Native families and communities. . . . The acts provide specific protections for Native children in child welfare proceedings and are aimed at preserving the children’s relationships with their families, Native communities, and identities. The acts also require states to send notice to tribes so that tribes may exercise their independent rights and interests to protect their children and, in turn, the continuing existence of tribes as thriving communities for generations to come." At issue in this case was whether the trial court had “reason to know” that M.G and Z.G. were Indian children at a 72-hour shelter care hearing. The Washington Supreme Court held that a trial court had “reason to know” that a child was an Indian child when a participant in the proceeding indicates that the child has tribal heritage. "We respect that tribes determine membership exclusively, and state courts cannot establish who is or is not eligible for tribal membership on their own." The Court held that an indication of tribal heritage was sufficient to satisfy the “reason to know” standard. Here, participants in a shelter care hearing indicated that M.G. and Z.G. had tribal heritage. The trial court had “reason to know” that M.G. and Z.G. were Indian children, and it erred by failing to apply ICWA and WICWA standards to the proceeding. View "In re Dependency of Z.J.G." on Justia Law