The County resolution is available on Melanie Benjamin’s official Facebook page: https://www.facebook.com/ChiefExecutiveMelanieBenjamin/?fref=ts
The Interior Solicitor’s M opinion on the reservation boundaries is here.
Navajo Nation Washington Office Vacancy
Wisconsin Disretionary Transfer Rule to be Indefinitely Extended
According to Larry Nesper:
The Supreme Court of Wisconsin today, June 21, in an administrative hearing, voted to indefinitely extend the Discretionary Transfer Rule permitting state court judges to transfer cases to tribal court on their own authority. It had been scheduled for review after five years. The rule has been most extensively used by the Oneida Nation which has transferred 1400 child support cases in the last several years out of county courts and into tribal court. The order will be out by the end of the term this summer.
Comments on this rule going back to 2007 are here.
Tunica-Biloxi Gaming Authority v. Zaunbrecher Cert Stage Briefs
Here:
Question presented:
It is well established that “Indian tribes are domestic dependent nations that exercise inherent sovereign authority. Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991); Michigan v. Bay Mills Indian Community,_ U.S._, 134 S.Ct. 2024, 2030, 188 L.Ed.2d 1071 (2014). “Among the core aspects of sovereignty that tribes possess – subject, again, to congressional action – is the common-law immunity from suit traditionally enjoyed by sovereign powers …. That immunity, we have explained, is a necessary corollary to Indian sovereignty and selfgovernance.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., 476 U.S. 877, 890, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986).
In Michigan v. Bay Mills Indian Cmty., supra, this Court explained that the “baseline position … is tribal immunity; and [t]o abrogate [such] immunity, Congress must unequivocally express that purpose …. That rule of construction reflects an enduring principle of Indian law: Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian selfgovernment.” (Citations omitted; internal quotation marks omitted.) Id., 134 S.Ct. at 2031-32.
Lower court materials here.
Federal Court Confirms Arbitration Award in Favor of Citizen Potawatomi against Oklahoma
Here are the materials in Citizen Potawatomi Nation v. Oklahoma (W.D. Okla.):
16. Memorandum Opinion and Order 6-21-16
We posted commentary on this matter here.
Section 1983 Claim against Swinomish Tribal Police Officer Dismissed
Here are the materials in Pearson v. Dept. of Licensing (W.D. Wash.):
Ninth Circuit Affirms Injunction against Kurt Kanam and Orbie Mullins
Here is the opinion in KPMG LLP v. Kanam.
Lower court materials here.
Federal Court Will Inspect Tribal Documents Sought in Glendale Casino Dispute
Here are the new materials in Tohono O’odham Nation v. Ducey (D. Ariz.):
Washington Appellate Court Decides that Former Nooksack Employee Entitled to Unemployment Benefits
Here is the opinion in Rapada v. Nooksack Indian Tribe (Wash. Ct. App. — Div. 1).
An excerpt:
Nadene Rapada was the accounting director for the Nooksack Indian Tribe (NIT). NIT terminated Rapada for processing a mileage reimbursement request without first having the request approved as required by NIT’s written accounting policy. Rapada did not dispute that she violated NIT’s official policy. She argued that after-the-fact approval was common practice at NIT and following that practice, rather than the official policy, was a good faith error in judgment.
The Employment Security Department (ESD) initially decided that Rapada was eligible for unemployment benefits. On NIT’s appeal of this decision, the ESD commissioner reversed concluding that Rapada was discharged for misconduct that amounted to wanton disregard of the employer’s interest and was thus ineligible for unemployment benefits. Rapada appealed to the superior court which reversed the commissioner’s decision.
We also conclude the commissioner erred and affirm the superior court.
Now Published Case out of California on Application of ICWA to Eligible Children
Here. (original unpublished opinion we posted last week). Appellants requested this opinion be published, so the published opinion is here.
We’d like to point out that the fact that mother was a minor and a dependent of the court meant that the state should have been treating MOTHER’S own case as an ICWA case, which does not seem to have happened (and if you’re keeping track, yes, I’ve now used italics, allcaps, AND red ink on this one).
In this case, BOTH the Red Cliff Band of Lake Superior Chippewa AND the Bad River Band of Lake Superior Chippewa Tribe responded to the Department’s notice. Both Bands stated the children were eligible for enrollment, and Red Cliff asked for more information. Mother was a minor and a runaway from her placement. But instead of sending the information, or following up to assist in getting the children enrolled, or provide active efforts, the Department requested the juvenile court find that ICWA did not apply. Which the juvenile court did. Specifically:
Our record discloses no further action after November 2013, until an interim review report, dated April 22, 2014, stated, “[i]t is respectfully requested that the Court make a finding as to the children’s Indian Child Welfare Act Status.” The report further stated that ICWA “does or may apply” as each child might be an Indian child in the Chippewa tribe and was ICWA “eligible” (capitalization & boldface omitted). SSA proposed the court find “ICWA does not apply,” and the juvenile court’s minute order, dated April 22, 2014, contains the finding, “ICWA does not apply.” In a minute order dated June 19, 2014, the juvenile court again stated: “Court finds ICWA does not apply.”
The Court of Appeals held:
Given the above cited authorities, the juvenile court erred by finding ICWA did not apply. Not only did insufficient evidence support that finding, but also two tribes responded to SSA’s ICWA notice, by stating that the children were eligible to enroll in them. The court was thereafter required to proceed as if the children were Indian children.
Under these circumstances, we must reverse the order terminating parental rights and remand with directions for the juvenile court to order SSA to make active efforts necessary to secure tribal membership for the children. (In re K.M. (2015) 242 Cal.App.4th 450, 458–459.)
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