Montana Supreme Court: State has Duty to Actively Determine if Child is Indian Child


In this case, as early as 2014, the State, through the Department, had reason to believe and, as asserted in its various petition averments and request for the District Court to proceed under ICWA, did believe that L.D. was an Indian child by affiliation with the Chippewa Cree Tribe. Though it gave due notice to the Tribe of the pendency of the initial foster care and subsequent parental rights termination proceedings, there is no evidence that the Department ever formally sought or received a conclusive tribal determination that L.D. was or was not eligible for tribal enrollment. Instead, the Department passively relied on the inaction of the Tribe and the assertions or beliefs of the parents that L.D. was not eligible for tribal membership. However otherwise reasonable, this passive reliance was insufficient to satisfy the Department’s ICWA burden to actively investigate further and ultimately make formal inquiry with the Tribe for a conclusive determination of L.D.’s membership eligibility.

Also, with briefing (a rarity in ICWA cases)!

DA 17-0419AppellantBrief

DA 17-0419AppelleeBrief

DA 17-0419ReplyBrief

Ottawa Tribe v. Ohio Dept. Natural Resources Treaty Rights Claim Rejected

Here is the opinion (H/T Indianz). Here is the link to the materials we placed on the blog in December.

Long Family and Amici Briefs Supporting Respondent Filed

All the bottom side briefs in the Plains Commerce Bank v. Long Family Land & Cattle Co. have been filed and are available at the NARF/NCAI Supreme Court Project website here.

The Bank’s reply brief is due shortly.

Allen v. Mayhew – Section 1981 Claims Against Tribal Individuals

The E.D. Cal. refused to dismiss the Section 1981 claims against tribal casino employees on the grounds of sovereign immunity in Allen v. Mayhew. The underlying claim involves the plaintiff’s termination from employment with the tribal casino.

Here are the materials:

Mayhew Motion to Dismiss

Continue reading

Quechan v. Dept. of Interior (D. Ariz.) — Arizona Clean Fuels Refinery

From Indianz [see the briefs and opinion below the fold]:

A federal judge has dismissed the Quechan Nation’s lawsuit over a proposed oil refinery in Arizona.

The tribe said the Bureau of Reclamation, an agency of the Interior Department, failed to address the environmental impact of a land transfer that was authorized by an act of Congress. The judge dismissed the claim as “frivolous.” Arizona Clean Fuels bought the land at issue in the transfer for an oil refinery. But the company has decided to use a different site after the tribe raised questions about the original site.

Continue reading

DC Circuit Vacates EPA Mercury Emissions — New Jersey v. EPA

Here is the opinion.

Here is a link to our previous post that included several briefs, including the tribal brief.

Congrats to the petitioners!

Hinsley v. Standing Rock C.P.S. (CA8) — Federal Tort Claims Act

Apparently, persons covered by the Federal Tort Claims Act retain immunity from suit by exercising their “discretion” to place children with alleged child molesters without warning the parents. Hinsely v. Standing Rock Child Protective Services (CA8)

Here are the briefs:

Hinsley Appellant Brief

Continue reading

Coalition to Defend Affirmative Action v. Granholm – Hearing Tomorrow

The Eastern District of Michigan (Judge Lawson) will hear cross-motions for summary judgment tomorrow in Coalition to Defend Affirmative Action v. Granholm. Here are some of the materials:

Cantrell Motion for Summary Judgment

Continue reading

Florida S.Ct. Seminole Compact Case — Oral Argument

The Florida Supreme Court held oral argument yesterday (H/T Indianz) on the state law challenge to the Class III compact executed by the Seminole Tribe of Florida. You can listen here.

Here are some of the major materials in House of Representatives v. Crist (the rest are at this link):

Continue reading