New Scholarship on Sohappy v. Smith/United States v. Oregon

Matthew L.M. Fletcher

Michael C. Blumm and Cari Baermann have posted “The Belloni Decision and Its Legacy: United States v. Oregon and Its Far-Reaching Effects After a Half-Century” on SSRN. It is forthcoming in Environmental Law.

Abstract:

Fifty years ago, Judge Robert Belloni handed down an historic treaty fishing rights case in Sohappy v. Smith, later consolidated into United States v. Oregon, which remains among the longest running federal district court cases in history. Judge Belloni ruled that the state violated Columbia River tribes’ treaty rights by failing to ensure “a fair share” to tribal harvesters and called upon the state to give separate consideration to the tribal fishery and make it management priority co-equal with its goals for non-treaty commercial and recreational fisheries. This result was premised on Belloni’s recognition of the inherent biases in state regulation, despite a lack of facial discrimination. 

The decision was remarkable because only a year before, in Puyallup Tribe v. Department of Game, the U.S. Supreme Court seemed to accord considerable deference to state regulation of tribal harvests (which it would soon clarify and circumscribe). Instead of deference, the Belloni decision reinstated burdens on state regulation that the Supreme Court had imposed a quarter-century earlier, in Tulee v. Washington, but seemed to ignore in its Puyallup decision. The directive for separate management was prescient because otherwise, tribal harvests would remain overwhelmed by more numerous and politically powerful commercial and recreational fishers. 

Judge Belloni eventually grew tired of resolving numerous conflicts over state regulation of the tribal fishery, calling for the establishment of a comprehensive plan, agreed to by both the state and the tribes, to manage Columbia Basin fish harvests. Eventually, such a plan would be negotiated, implemented, and amended over the years. Today, the Columbia River Comprehensive Management plan is still in effect a half-century after the Belloni decision, although the district court’s oversight role is now somewhat precariously perched due to statements by Belloni’s latest successor. Nonetheless, the plan remains the longest standing example of tribal-state co-management in history and a model for other co-management efforts. This article examines the origins, effects, and legacy of the Belloni decision over the last half-century.

Split Minnesota COA Rejects Environmental Impact Statement on Enbridge Line 3 Replacement Project

Matthew L.M. Fletcher

Here is the opinion in In re Applications of Enbridge Energy (Minn. Ct. App.):

Minnesota COA Opinion

Effort to Stop Cherokee Election Rejected

Matthew L.M. Fletcher

Here are the materials in Fleming v. Cherokee Nation (D.D.C.):

1 Complaint

2-5 Motion for TRO

6 Cherokee Opposition

9 Cherokee Motion to Dismiss

12 Federal Motion to Dismiss

13 Plaintiffs’ Response

15 Federal Reply

17 DCT Order

Wall Street Journal Article on Canadian Genocide of Indigenous Women

Matthew L.M. Fletcher

Here.

Above the Law Report on the Ninth Circuit’s Order Asking BNSF to Clarify Portions of Its Briefing in Dispute with Swinomish

Matthew L.M. Fletcher

Here.

We posted the order on the case page here.

Erin Oliver named Assistant Vice President for Institutional Equity at Notre Dame

Monica Williamson

Erin Oliver graduated from Notre Dame in 2005 and Michigan State University College of Law in 2012. She is a member of the Indiana state bar and the National Association of College and University Attorneys. Find the press release here.

“Erin brings extensive experience as a leader in the area of institutional equity and has proven expertise in managing harassment and discrimination issues in a university setting,” said Robert McQuade, vice president of Human Resources. “We are proud to welcome Erin. Her experience in serving in leadership roles in handling and providing guidance regarding the Americans with Disabilities Act and creating training sessions on ADA and serving as an ADA coordinator will also be an asset to Notre Dame.”

 

 

Tribal Planning Grants for Direct Title IV-E [Foster Care Funding] Posted

Kate Fort

Here

Deadline is July 15. These are grants for tribes interested in changing their codes and manuals to access direct federal funding (up to 83%) for the administration and training of their social service agencies, and maintenance payments to foster families.

If you are an in-house attorney who would like to know more about this, please let me know.

Transfer to Tribal Court Case from Colorado [ICWA]

Kate Fort

Here is a case that continues to demonstrate the importance of ensuring a state ICWA law allows transfer of cases post-termination. Navajo Nation intervened and appealed the decision to deny transfer (and to move the children back to the former, non-ICWA compliant foster home, who opposed the transfer to tribal court).

Additional important issues in this case including the appealability of a final order, standing of former foster parents (they had none), and post-termination transfer to tribal court.

We acknowledge that ICWA only addresses a request to
transfer jurisdiction during foster care placement and termination of parental rights proceedings. 25 U.S.C. § 1911(b). It does not mention such a request during preadoptive or adoptive placement proceedings. See id. Even so, the Children’s Code, as it existed at the time the juvenile court denied transfer, permits a juvenile court to consider transfer of jurisdiction to a tribal court “[i]n any of the cases identified in subsection (1) of this section involving an Indian child.” § 19-1-126(1), (4)(a). The cases identified in subsection (1) include “pre-adoptive and adoption proceedings.” § 19-1-126(1).

Article on Child Removal Practices in Kentucky

Kate Fort

Not sure what’s in the water today, but here.

Also, not innovative and I’m going to go with illegal:

An investigative report by WDRB in Louisville, Kentucky recently exposed a particularly innovative — although likely illegal — method that the state’s child protective services caseworkers came up with to remove children from their families without court approval.

According to the report, Cabinet for Health and Family Services workers kept stacks of blank emergency removal orders that were pre-signed by local district court judges. This allowed caseworkers to take custody of children without having a judge properly review the allegations or evidence beforehand. Attorneys and judges interviewed for the report compared the practice to a police officer creating their own search warrant without a judge’s approval.

Termination of Parental Rights Case out of Arizona [ICPC]

Kate Fort

This case is not an ICWA case, but for those who work in this area, it is a familiar fact pattern, and one of the rare times the appellate court overturned the TPR based on lack of evidence. In addition, the press covered both this case, and did a second article on what it means to have “confidential” child welfare cases and provides a fair amount of nuance.

Case coverage

Confidentiality article

Opinion: 1 CA-JV 18-0322

We hold that a termination based on fifteen-months’ out-of-home placement requires the court to consider the totality of the circumstances throughout the dependency when determining whether the Department of Child Safety (“DCS”) made a diligent effort to provide appropriate reunification services, including whether DCS’s failure to act reasonably and diligently contributed to the circumstances causing the child to remain in out-of-home placement. We further hold that a request through the Interstate Compact on the Placement of Children (“ICPC”) is not required when the evidence does not support a dependency concerning the out-of-state parent.

Dad was not married to mom and did not know the child had gone into DCS care at birth. When he contacted the case worker, he was deemed immediately unfit.

Relating to Father, the primary cause of Melody’s out-of-home care was the court’s dependency finding in May 2015. At that time, no evidence showed that Father was an unfit parent, or that living with Father was contrary to Melody’s welfare. Melody had been in DCS’s custody since birth. Father contacted DCS when Melody was less than one month old. Nevertheless, without any investigation, DCS filed a petition alleging that Melody was dependent due to abuse or neglect as to Father.

***

Despite Mother’s deception in telling Father that he was not Melody’s father, he called Mother’s husband, found out Melody was in DCS’s care, and immediately contacted DCS requesting a paternity test. The case manager told Father to contact the juvenile court, which he did. Father diligently complied with the ordered paternity test, appeared for the hearings, participated in parenting classes, and contested the allegations in the dependency petition.

DCS also required an ICPC (interstate compact on the placement of children) review for the child to be placed with her father in California–though again, there was no actual evidence of unfitness. This is a fact pattern we have dealt with in ICWA cases out of Arizona as well.

An ICPC is not required when evidence does not support a dependency as to the out-of-state parent. See In re Emoni W., 48 A.3d 1, 6 (Conn. 2012) (ICPC does not apply to out-of-state non-custodial parent); accord In re C.B., 116 Cal. Rptr. 3d 294, 302 (Cal. Ct. App. 2010); In re Alexis O., 959 A.2d 176, 182 (N.H. 2008). An ICPC is intended for out-of-state placement of a dependent child. A.R.S. § 8-548, art. II(d) (“’Placement’ means the arrangement for the care of a child in a family free or boarding home or in a child-caring agency . . . .“); A.R.S. § 8-548, art. III(a) (“No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption [without complying with the ICPC].” (emphasis added)).

***

Thus, when DCS discovers that a child in its care has an out-of-state parent, the regulation allows it—in addition to the conventional mechanisms it employs to investigate a parent—to request a courtesy check from the parent’s home state. Accord In re Emoni W., 48 A.3d at 11 (an agency can investigate an out-of-state parent without an ICPC). The ability to request a courtesy check, however, does not authorize DCS to hold a child in its care for an indeterminant amount of time simply because it lacks an ICPC approval. Unless DCS has a reasonable basis for believing the out-of-state parent is unfit, it must turn over the child to the parent.

The Court cited to Vivek Sankaran’s article on this very issue, Vivek S. Sankaran, Out of State and Out of Luck: The Treatment of Non-Custodial Parents Under the Interstate Compact on the Placement of Children, 25 Yale L. & Pol’y Rev. 63, 80 (2006).

By all accounts, dad was a good dad to his other children in California. The trial court went on to terminate parental rights regardless.

Reading this opinion should be infuriating. The visitation “plan” alone makes a person’s  heart rate climb to unhealthy levels on a plane, as my watch unhelpfully pointed out (“DCS falsely claimed  lied and said that “Father ha[d] failed to keep most of the weekly appointments for telephonic contact with the child.” ¶62 The foster mother reported that Father missed only five calls of the fifty days on which Father would have been scheduled to call in that period.”), and is a reminder of the absolute need for very good individual party attorneys in the child welfare system. This is a well written and well reasoned opinion by the Court of Appeals.