Articles Posted in Native American Law

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Mother and Father appealed the juvenile court's order terminating their parental rights to their children. The Court of Appeal held that the juvenile court had jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) after a Nevada juvenile court declined to exercise jurisdiction. The court conditionally reversed and remanded, holding that the investigation required by the Indian Child Welfare Act (ICWA) was not complete. In this case, HSA conceded that it had not substantially complied with the ICWA notice requirements, the order terminating parental rights should be vacated, and reversal was required to determine the applicability of the ICWA. View "In re E.R." on Justia Law

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Huber runs a sole proprietorship out of her home, selling cigarettes at retail and wholesale. After 2007 she sold exclusively Native American brands: “cigarettes manufactured by Indians on Indian lands, . . . shipped and sold through Indian and tribally-owned distributors to Indian and tribally-owned retail smokeshops located on Indian lands.” Customers include tribe members and nonmembers. The wholesale component of the enterprise is with “over two dozen Indian smokeshops owned either by Indian tribes or [i]ndividual tribal members and operated within [other] . . . recognized Indian reservation[s].” Deliveries are made to “inter-tribal” customers by truck, using California highways. Huber is licensed to do business under the Wiyot Tribal Business Code and the Wiyot Tribal Tobacco Licensing Ordinance. The trial court entered a summary adjudication order and permanent injunction in an enforcement action by the Attorney General for violation of the Unfair Competition Law, Business and Professions Code section 17200 (UCL), 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 court of appeal reversed in part, finding that, under a federal statute, 28 U.S.C. 1360, granting California courts plenary criminal jurisdiction but limited civil jurisdiction over cases arising on Indian reservations, the trial court lacked power to proceed on the UCL claims in this case. The court otherwise affirmed. View "People v. Huber" on Justia Law

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After attempting to persuade the Tribe to pay him for services provided under construction and rental agreements, Findleton requested that the Tribe mediate and arbitrate pursuant to clauses in the agreements. The Tribe failed to respond. Findleton filed a petition in March 2012, in the Mendocino County Superior Court to compel mediation and arbitration. The court held the Tribe had not waived its sovereign immunity. The Tribe sought attorney fees it had incurred in defending against Findleton’s petition, which the superior court granted. The court of appeal remanded, finding the Tribe had waived its sovereign immunity, reversing the award of fees. On remand, Findleton again filed a petition to compel mediation and arbitration and sought contractual attorney fees he had incurred in the prior appellate proceedings. The Tribe did not oppose the fee motion on the merits but requested that the court defer ruling until the Tribe filed a demurrer challenging the court’s jurisdiction. The superior court rejected that request and granted Findleton’s motion, awarding costs ($4,591.79) and attorney fees ($28,148.75). The court of appeal affirmed. The Tribe has not demonstrated that tribal remedy exhaustion was required here nor would requiring exhaustion at this late date serve any purpose other than further delay of a case that is already six years old. View "Findleton v. Coyote Valley Band of Pomo Indians" on Justia Law

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Defendant-appellant, S.A. (Mother), appealed the termination of her parental rights to N.G., a boy born in 2005. She argued the juvenile court erroneously failed to ensure that plaintiff-respondent, Riverside County Department of Public Social Services (DPSS), fully investigated N.G.’s paternal lineal ancestry and gave adequate notices of the proceedings to all federally recognized Cherokee tribes and to the Bureau of Indian Affairs (BIA), pursuant to the Indian Child Welfare Act (ICWA) and related California law. After review, the Court of Appeal agreed Mother’s claim had merit and conditionally reversed the judgment. The Court also concluded that DPSS had to be ordered to further investigate N.G.’s paternal lineal ancestry, and include any newly discovered information concerning N.G.’s paternal lineal ancestry in the ICWA notices to all federally recognized Cherokee tribes, the BIA, and all previously noticed tribes. DPSS was also ordered to inquire whether N.G. may have maternal lineal ancestry and, if so, send additional ICWA notices, as appropriate. View "In re N.G." on Justia Law

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Appellant, the noncustodial biological father of the minor K.L., appealed the juvenile court’s dispositional judgment, removing the minor from his mother and placing him with his presumed father, L.V. In August 2014, the Siskiyou County Health and Human Services Agency filed a section 300 petition on behalf of the two-year-old minor and his older half sibling, after mother was arrested for child cruelty and possession of a controlled substance. Shortly after the minor was born, L.V. took the minor into his home where he lived for several months. Initially, L.V. believed he was quite probably the minor’s father and treated him as such. A DNA test, requested by mother, confirmed L.V. was not the minor’s biological father. Nonetheless, L.V. continued to treat the minor as his own. The juvenile court found L.V. to be the minor’s presumed father. The Agency thereafter placed the minor and his half sibling with L.V. Shortly after these proceedings commenced, paternity test results revealed appellant to be the minor’s biological father. Appellant had never met the minor and had only recently learned of the minor’s existence. Appellant was an enrolled member of the federally recognized Karuk Indian Tribe . The Karuk Indian Tribe intervened on appeal, contending the juvenile court failed to comply with the procedural requirements of the Indian Child Welfare Act of 1978 ("ICWA") in entering its dispositional judgment. The Court of Appeal found the provisions of ICWA did not apply in this case and affirmed the juvenile court's judgment. View "In re K.L." on Justia Law

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Sally H. (Mother) appealed a judgment terminating her parental rights to her child, E.H. Mother's sole claim on appeal was that the juvenile court erred in terminating her parental rights because the court failed to ensure that the San Diego County Health and Human Services Agency (Agency) fully complied with the inquiry and notice requirements of the Indian Child Welfare Act of 1978 and related law. Among other alleged errors, Mother contended the Agency failed to fulfill its duty to inquire of E.H.'s maternal great-grandmother, Sally Y.H., in order to obtain identifying information pertaining to Sally Y.H.'s father, and failed to provide notice of such information to an Indian tribe named the Tohono O'odham Nation. Mother further contended the failure to provide notice of Sally Y.H.'s father's identifying information to the Tohono O'odham Nation was prejudicial because he was likely the source of E.H.'s possible American Indian heritage. The Court of Appeal agreed with Mother that, considering Sally Y.H.'s statement to the Agency that her paternal family had Tohono O'odham Nation heritage, the Agency had a duty to attempt to obtain Sally Y.H.'s father's identifying information and to provide notice of any such information obtained to the Tohono O'odham Nation. If Bruno Y. was Sally Y.H.'s father, and E.H.'s great-great-grandfather, the Agency failed to properly describe his ancestral relationship to E.H. on the notice provided to the Tohono O'odham Nation. Finally, given that Sally Y.H. told the Agency that her paternal family had heritage from the Tohono O'odham Nation, the Court could not conclude the Agency's errors were harmless. Accordingly, the trial court judgment was reversed for the limited purpose of having the Agency provide the Tohono O'odham Nation with proper notice of the proceedings in this case. View "In re E.H." on Justia Law

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H.S. and James E. appealed an order terminating parental rights to their son, Collin E. In July 2015, the San Diego County Health and Human Services Agency (Agency) filed a petition under Welfare and Institutions Code section 300 (b) on behalf of the 13-month-old Collin. The petition alleged Collin's mother, H.S., had left him unattended in her car while she was under the influence of a prescription narcotic medication. Police officers arrested H.S. for willful cruelty to a child and being under the influence. H.S. told officers she had taken 50 mg of morphine prescribed for pain caused by a brain tumor. The Agency alleged Collin had suffered, or was at substantial risk of suffering, serious physical harm or illness due to his parents' inability to provide adequate care. James (father) and H.S. argued there was no substantial evidence to support the Indian Child Welfare Act finding that continued custody of the child by the parents was likely to result in serious emotional or physical damage to the child. They also argued the juvenile court erred when it determined the beneficial parent-child relationship exception did not apply and terminated parental rights. Finding no reversible error, the Court of Appeal affirmed. View "In re Collin E." on Justia 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