Author: Kate E. Fort

Alabama Supreme Court Finds Purchasing Dram Shop Insurance Waives Sovereign Immunity

Kate Fort2 Comments

Writ of Mandamus denied without opinion, but the concurring opinion is here.

Because the Poarch Band has structured its
Tribal Code to prevent dram-shop claims from being heard in
the tribal court, its claim of immunity from a state-court
action is accordingly diminished.

***

Because PBCI’s formal covenant to assume financial
responsibility in dram-shop actions constitutes an explicit
waiver of its sovereign immunity from liability for such
actions, I concur in denying PBCI’s petition for a writ of
mandamus ordering the trial court to dismiss this action on
the ground of tribal immunity.

Michigan Race Equity Commission Releases Report on Child Welfare

Kate Fort

Here is the news article.

Report here.

• Minority kids were 2.1 times more likely to age out of foster care than white children. Hispanic kids were 1.1 times more likely, American Indian 1.4 times more likely and black children 2.3 times more likely to age out of the system.

Nebraska Court of Appeals: Active Efforts Required When Children Under State Jurisdiction are In Parental Home

Kate Fort

Opinion here.

Case law in this state has clearly established that the active efforts standard in this section requires more than the reason- able efforts standard that applies in cases not involving ICWA. See, In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008); In re Interest of Ramon N., 18 Neb. App. 574, 789 N.W.2d 272 (2010). See, also, Neb. Rev. Stat. § 43-292(6) (Cum. Supp. 2012).
The question presented to us in this case is whether ICWA’s active efforts standard applies when the State, through DHHS, has legal custody of the children, but the children are placed in the parental home. Nebraska appellate courts have not spe- cifically addressed this question. David argues that case law from other jurisdictions should lead this court to conclude that ICWA’s protections are applicable at all stages of a juvenile court proceeding.

***

In reaching the conclusion that active efforts should be pro- vided during periods that placement of the children is with the parent or parents, we recognize that the active efforts required may certainly be different from those required during a period of removal from the home. As discussed by the Nebraska Supreme Court in In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008), the active efforts standard requires a case-by-case analysis. See, e.g., In re Interest of Louis S. et al., supra (where further rehabilitative efforts would be futile, requirement of active efforts is satisfied); T.F. v. State, Dept. of H & S Services, 26 P.3d 1089 (Alaska 2001); People ex rel. D.G., 679 N.W.2d 497 (S.D. 2004); In re Cari B., 327 Ill. App. 3d 743, 763 N.E.2d 917, 261 Ill. Dec. 668 (2002) (degree of active efforts required to prevent Indian familial breakup reduced by parent’s incarceration).

South Carolina Gambling Cruise Act Does Not Alter Statewide Ban on Video Gaming

Kate Fort

Opinion in Catawba Indian Nation v. South Carolina here.

We conclude the Tribe’s action is not precluded by collateral estoppel or res judicata and reverse this finding by the circuit court. We affirm, however, the circuit court’s determination that the Gambling Cruise Act does not authorize the Tribe to offer video poker on its Reservation in contravention of the existing statewide ban on video gambling devices.

Land Claim Filed in Minnesota Federal District Court

Kate Fort1 Comment

Complaint here.
Press Release here.

The lawsuit speaks of the Minnesota 1862 Sioux revolt where Congress later helped to regain lands for the Mdewakanton who saved settlers and did not participate in the revolt. A never repealed February 1863 Act instructed the Secretary of Interior to set aside about 12 square miles of reservation land for the loyal Mdewakanton’s “for ever.” Because of white-settler hostility, the loyal Mdewakanton were not able to settle on those lands. But, the United States, although it never had the legal authority to transfer title, did so and sold the land to subsequent possessors. Thus, all subsequent land owners never had clear title to those Indian lands.

Job Announcement: Program Coordinator for NAICJA

Kate Fort

Program Coordinator_final

The National American Indian Court Judges Association (NAICJA), established in 1969, is a non-profit membership organization dedicated to supporting and promoting tribal justice systems through technical assistance and training. NAICJA also works to further the public knowledge and understanding of tribal justice systems. NAICJA’s training and technical assistance program is the National Tribal Justice Resource Center (“NTJRC”) located in Boulder, Colorado. Each year NAICJA hosts the National Tribal Judicial and Court Clerks Conference which provides tribal judges, justice system personnel, and others interested in tribal justice systems current information about new legal and practice developments and the opportunity to network and engage in peer to peer consultation. The Program Coordinator is a temporary, part-time position. Responsibilities will include duties related to a range of current NAICJA programs and projects, including:

Temporary Stay Lifted by Nuclear Regulatory Commission in In re Powertech USA

Kate Fort

Order here.

At its heart, the dispute over a stay boils down to a disagreement over the NHPA consultation process. Intervenors argue that the process by which the Programmatic Agreement was created was inadequate, and therefore fails to fully protect the Tribe’s [Oglala Sioux] sensitive and significant historic and cultural resources. Powertech, and the NRC Staff disagree and believe the Programmatic Agreement memorialized a fair and adequate process that fully protects all potential cultural and historic resources at the Dewey-Burdock sites.

Laches Does Not Apply to an Action in Law, Unless it Does

Kate Fort

Yesterday’s Supreme Court decision on the copyright of the Raging Bull screenplay involved both copyright law and laches. At issue was how long the screenwriter’s heir could wait to sue MGM for permission to renew the copyright. Copyright was originally sold to a company in 1976, and the heir waited until 2009 to sue for copyright infringement. She did communicate with MGM her displeasure during this time, but did not sue. The lower courts dismissed her claim on laches (as a refresher, laches is an affirmative defense used when the plaintiff waits an “unreasonable” amount of time to bring a claim and the defendant is injured by that delay).

In reversing the 9th Circuit, Justice Ginsburg cites to Oneida Indian Nation v. County of Oneida 470 U.S. 226, 244, n.16 (1985) “(“[A]pplication of the equitable defense of laches in an action at law would be novel indeed.”).” It would be! But wait! That’s exactly what the Second Circuit did in Cayuga Indian Nation v. New York (relying on City of Sherrill v. OIN), as Justice Breyer points out in his dissent: “Lower courts have come to similar holdings in a wide array of circumstances—often approving not only of the availability of the laches defense, but of its application to the case at hand. E.g., Cayuga Indian Nation of N. Y. v. Pataki, 413 F. 3d 266, 274–277 (CA2 2005) (laches available in a “possessory land claim” in which the District Court awarded damages, whether “characterized as an action at law or in equity,” and dismissing the action due to laches);”. No one cited to City of Sherrill, perhaps because that case only “evokes” the doctrine of laches.

And in a majority footnote:

“13 Assuming Petrella had a winning case on the merits, the Court of Appeals’ ruling on laches would effectively give MGM a cost-free license to exploit Raging Bull throughout the long term of the copyright. The value to MGM of such a free, compulsory license could exceed by far MGM’s expenditures on the film.”

Because we wouldn’t want laches to be used to achieve THAT to result.

Seattle U Tribal Governmental Business Law Summer Certificate Program

Kate Fort

Here.
Indian Law Certificate program

Tribal Governmental Business Law is the focus for the 2014 Summer Practice Academy’s Indian Law Certificate Program. The five session program will be spread over 2 1/2 days from June 25 through June 27, 2014.

It will be available live and via the web.  Participants can choose to take parts of the program or the entire program if they are interested in obtaining the certificate.  The entire program is 15 CLE credit hours. It is a  program with very diverse topics and  speakers from around the nation covering Labor & Employment Law; The Supreme Court’s Barriers to Indian  Land Acquisition; New Directions in Energy Development – With the Kerr Hydroelectric Project and the Pelton Round Buttes Hydro Project as Case Studies; The Promise and Peril of Internet Gaming and New Developments in Taxation.

Registration Options:  attend all five sessions and receive a Certificate of Completion or attend individual sessions. Total CLE credits for all five sessions: 13.75.  Click Here To Register

 

Slate Vault: 1876 Map of the Disappearance of the American Bison

Kate Fort

Here.

But most of all, white American settlers moving west with the railroads killed millions, both for sport and for hides to sell to markets both domestic and foreign. Federal authorities, Isenberg writes, “supported the hunt because they saw the extermination of the bison as a means to force Indians to submit to the reservation system.”