Articles Posted in Native American Law

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E.K. (Mother) appealed the termination of her parental rights as to her three children. A petition pursuant to Welfare and Institutions Code section 300 was filed in 2016, as to three minors, then age three years, two years, and 20 months, respectively. The children’s father, R.R., died of a heroin overdose a month prior. The petition alleged that mother was unable to provide adequate care for the children and endangered them as a result of her abuse of controlled substances and her untreated mental health issues. The petition was sustained on June 15, 2016, and reunification services were ordered. Mother had overdosed on heroin several times before the petition was filed. She overdosed again in August 2016. Ultimately, reunification services were terminated. The children were placed in a prospective adoptive home. Parental rights were terminated on October 2, 2017. Mother filed a timely notice of appeal on October 5, 2017. The sole issue Mother raised was lack of compliance with the Indian Child Welfare Act of 1978, or ICWA (25 U.S.C. 1901, et seq.), and with Welfare and Institutions Code sections 224 et seq. The Court of Appeal agreed with Mother’s contention, and conditionally reversed and remanded for compliance with those statutes. View "In re K.R." on Justia Law

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The Court of Appeal affirmed the juvenile courts order terminating her parental rights to R.H., an Indian child, and selecting adoption as his permanent plan. The court held that the juvenile court could implicitly conclude that the Tribe had no present interest in participating in the determination of R.H.'s permanent plan; R.H. has never had any contact with the Tribe and was bonded to his prospective adoptive parents, with whom he has lived since he was four months old; and there was good cause to depart from the Indian Child Welfare Act's, 25 U.S.C. 1901 et seq., placement preferences. Furthermore, the court declined to consider Mother's proffered additional evidence. View "In re R.H." on Justia Law

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The Court of Appeal affirmed the juvenile courts order terminating her parental rights to R.H., an Indian child, and selecting adoption as his permanent plan. The court held that the juvenile court could implicitly conclude that the Tribe had no present interest in participating in the determination of R.H.'s permanent plan; R.H. has never had any contact with the Tribe and was bonded to his prospective adoptive parents, with whom he has lived since he was four months old; and there was good cause to depart from the Indian Child Welfare Act's, 25 U.S.C. 1901 et seq., placement preferences. Furthermore, the court declined to consider Mother's proffered additional evidence. View "In re R.H." on Justia Law

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Father appealed from the order terminating his parental rights to his daughters under Welfare and Institutions Code section 366.26. The Court of Appeal agreed with Father that there was an inadequate investigation of Mother's claim of Indian ancestry under the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. 1901 et seq. In this case, although the name of the tribe Mother identified did not directly correspond to that of a federally recognized Indian tribe, the Department failed to satisfy is affirmative obligation to interview family members and others who could be expected to have relevant information concerning the children's status, and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding ICWA did not apply to these proceedings. Accordingly, the court remanded to allow the Department and the juvenile court to remedy that violation. The court otherwise affirmed the order. View "In re Elizabeth M." on Justia Law

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Father appealed from the order terminating his parental rights to his daughters under Welfare and Institutions Code section 366.26. The Court of Appeal agreed with Father that there was an inadequate investigation of Mother's claim of Indian ancestry under the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. 1901 et seq. In this case, although the name of the tribe Mother identified did not directly correspond to that of a federally recognized Indian tribe, the Department failed to satisfy is affirmative obligation to interview family members and others who could be expected to have relevant information concerning the children's status, and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding ICWA did not apply to these proceedings. Accordingly, the court remanded to allow the Department and the juvenile court to remedy that violation. The court otherwise affirmed the order. View "In re Elizabeth M." on Justia Law

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In a previous appeal, the court concluded that the minors’ mother revoked maternal uncle Rafael’s Indian custodian status under the Indian Child Welfare Act, 25 U.S.C. 1901, shortly after the children were detained. The court determined that compelling evidence supported the refusal to place the minors with Rafael as an extended family member—an ICWA "preferred placement"—given their special needs and Rafael’s cognitive deficits. The court rejected Rafael’s challenge to permanent plan orders continuing long-term foster care, concluding that Rafael was no longer a party to the dependency proceedings. While those appeals were pending, Rafael filed a new action, attacking a permanent plan order continuing the minors in foster care. Rafael argued that active efforts have not been made to prevent the breakup of the Indian family, specifically with regards to visitation; and that foster care was neither necessary nor appropriate, as he is willing and able to take custody. The court of appeal dismissed, finding that Rafael lacked standing. The minors have been in permanent plans for several years, so services should be tailored to support their compelling need for stability and permanency. Rafael can continue to appear in juvenile court and request visitation as an interested relative and the Tribe remains involved, arguing for increased contact among the minors, Rafael, and the grandmother. Rafael only lacks standing to challenge the minors’ permanent plans. View "In re E.R." on Justia Law

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T.C. appealed the juvenile court's dispositional order placing her minor daughter, A.F., in the care of her paternal grandmother, Donna F. T.C. contended the court erred by failing to comply with the placement preferences required under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) and argued the juvenile court should have continued A.F.'s placement with T.C.'s maternal cousin. The Court of Appeal agreed with the Agency that the juvenile court's dispositional order complied with the applicable placement preferences and affirm the order. View "In re A.F." on Justia Law

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The Elem Indian Colony Pomo Tribe’s “Brown faction” sued the Tribe’s “Garcia Council” over allegedly defamatory statements published in a notification that warned they would be disenrolled if the Tribe’s General Council found them guilty of specified crimes. The trial court ruled the lawsuit was barred by sovereign immunity and dismissed the complaint. The court of appeal affirmed, rejecting arguments that the court misapplied the law when it considered whether defendants issued the alleged defamatory statements in the scope of their official capacities and whether allowing the case to proceed in state court would interfere with tribal administration because they sued defendants in their individual, not tribal, capacities. Substantial evidence established that defendants were tribal officials at the time of the alleged defamation and that they were acting within the scope of their tribal authority when they determined that, for the reasons stated in the allegedly defamatory Order of Disenrollment, plaintiffs should be disenrolled from the Tribe pursuant to a validly enacted tribal ordinance. A tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community. View "Brown v. Garcia" on Justia Law

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Defendant Darren Rose, a member of the Alturas Indian Rancheria, ran two smoke shops located in Indian country but far from any lands governed by the Alturas Indian Rancheria. In those smoke shops, Rose sold illegal cigarettes and failed to collect state taxes. California brought an enforcement action to stop illegal sales and collect civil penalties. Rose appealed, arguing: (1) California and its courts did not have jurisdiction to enforce California’s civil/regulatory laws for his actions in Indian country; and (2) the amount of civil penalties imposed was inequitable and erroneous. The Court of Appeal concluded: (1) federal law and tribal sovereignty did not preempt California’s regulation and enforcement of its laws concerning sales of cigarettes; and (2) the superior court’s imposition of civil penalties was proper. View "California v. Rose" on Justia Law

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Defendant Shingle Springs Band of Miwok Indians (the Tribe) appealed a judgment after trial in favor of plaintiff Sharp Image Gaming, Inc. (Sharp Image), in plaintiff’s breach of contract action stemming from a deal to develop a casino on the Tribe’s land. On appeal, the Tribe argued: (1) the trial court lacked subject matter jurisdiction because Sharp Image’s action in state court was preempted by the Indian Gaming Regulatory Act (IGRA); (2) the trial court erred in failing to defer to the National Indian Gaming Commission’s (NIGC) determination that the disputed Equipment Lease Agreement (ELA) and a promissory note (the Note) were management contracts requiring the NIGC’s approval; (3) Sharp Image’s claims were barred by the Tribe’s sovereign immunity; (4) the trial court erred in denying the Tribe’s motion for summary judgment; (5) the jury’s finding that the ELA was an enforceable contract was inconsistent with its finding that the ELA left essential terms for future determination; and (6) substantial evidence does not support the jury’s verdict on the Note. After the parties completed briefing in this case, the United States was granted permission to submit an amicus curiae brief in partial support of the Tribe on the questions of preemption and lack of subject matter jurisdiction. The Court of Appeal concluded IGRA preempted state contract actions based on unapproved “management contracts” and “collateral agreements to management contracts” as such agreements are defined in the IGRA regulatory scheme. Thus, the trial court erred by failing to determine whether the ELA and the Note were agreements subject to IGRA regulation, a necessary determination related to the question of preemption and the court’s subject matter jurisdiction. Furthermore, the Court concluded the ELA was a management contract and the Note was a collateral agreement to a management contract subject to IGRA regulation. Because these agreements were never approved by the NIGC Chairman as required by the IGRA and were thus void, Sharp Image’s action was preempted by IGRA. Consequently, the trial court did not have subject matter jurisdiction. View "Sharp Image Gaming v. Shingle Springs Band of Miwok Indians" on Justia Law