California SCT & COA Materials in Huber Tax Case

Here are the materials in Huber v. People ex rel. Becerra (Cal.):

Huber-Navarro-Petition-for-Review-04-Apr-Apr-2019-STAMPED

And in People ex rel. Becerra v. Huber (Cal. Ct. App.) [we posted materials here]:

Navarro-Appellant’s-Opening-Supplemental-Brief-15-Nov-2018-FILE-STAMPED

Navarro-Appellant’s-Petition-for-Rehearing-09-Oct-2018-FILE-STAMPED

Navarro-Appellant’s-Supplemental-Reply-Brief-06-Dec-2018-FILE-STAMPED

California Appellate Court Holds State Taxes Imposed on Tribal Member Not Preempted

Here are the materials in People ex rel. Becerra v. Huber (Cal. Ct. App.):

opinion-1.pdf

appellant-opening-brief.pdf

respondent-brief.pdf

reply-brief.pdf

appellant-supplemental-brief.pdf

appellee-supplemental-reply.pdf

appellant-supplemental-reply.pdf

California COA Reinstates Lawsuit against Tribal Lawyers

Here is the unpublished opinion in Fernandez v. Marston:

Fernandez v Martson

An excerpt:

Two unwitting pawns in a bitter, protracted leadership dispute between rival factions of an Indian tribe, appellants Shawn Fernandez and Brian Auchenbach, took part in a paramilitary raid of the tribe’s casino offices in order to oust a competing tribal faction of possession. The two men believed they had been lawfully deputized as police officers for the tribe, had full legal authority to engage in the operation, and would not face any adverse legal consequences or criminal charges as a result. They believed this, because attorneys for the tribal faction that hired them as police officers assured them it was true.

It wasn’t. Contrary to counsel’s assurances, Fernandez and Auchenbach were arrested by the Madera County Sheriff’s Department, along with the others who participated in the raid, and were charged with 29 felony counts. The two men then brought this lawsuit against the attorneys involved, alleging causes of action for attorney malpractice, negligence and fraud, premised on the attorneys’ false assurances to them concerning the validity of the tribal police force that had hired them and the legality of the armed raid they took part in.

The trial court granted the attorneys’ motion to strike their complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.161). We reverse, because this lawsuit does not arise from any activity protected by that statute.

California Appellate Court Affirms Dismissal of Silvia Burley Suit against California Gambling Control Commission under Anti-SLAPP Rule

Here is the unpublished opinion in California Miwok Tribe v. Everone:

d072141

Calif. COA Decides Scope of Tribal Immunity Waiver Matter

Here is the unpublished opinion in Federal Indians of Graton Rancheria v. Kenwood Investments (Cal. Ct. App. — First Dist.):

Federated Indians of Graton Rancheria v. Kenwood Investments

An excerpt:

The trial court’s ruling that the Tribe waived sovereign immunity with respect to Amendment No. 2 is affirmed. We reverse the award of attorney fees. All other aspects of the judgment remain undisturbed.

Unpublished ICWA Notice Case out of California Detailing Mistakes in Notices

Here.

If you see me present in the next year, be warned that at the first question about notice and how long it takes for a tribe to respond, I may just read this opinion out loud. As a reminder, there is a list names and addresses in the Federal Register of Designated Tribal Agents for Service of ICWA Notice for agencies to send notice to when a parent says they are or may be a member of a tribe. The First Circuit does a very nice job of detailing the type of mistakes that are just incredibly common. A note–the Court uses the Federal Register list that was in effect when the notices supposedly went out in 2015. However, a few times the Agency managed to use agents listed in the most recent (March, 2016) register.

According to the Federal Register, the designated agent and address for the Jicarilla Apache Nation was “Olivia Nelson-Lucero, Acting Program Manager, Jicarilla Behavioral Health, P.O. Box 546, Dulce, NM 87528.” (79 Fed. Reg. 72027.)

According to the certified mailing receipt, the Agency sent the notice to the designated address, but directed it to “Director, Mental Health/Social Services” rather than to “Olivia Nelson-Lucero, Acting Program Manager, Jicarilla Behavioral Health.”

Current designated agent: Jicarilla Apache Nation, Sharnen Velarde, ICWA Social Worker, P.O. Box 546, Dulce, NM 87528

The designated agent and address for the Tonto Apache Tribe was “Brian Echols, Social Services Director, T.A.R. #30, Payson, AZ 85541.” (79 Fed. Reg. 72029.) The Agency sent the notice to the designated address, but directed it to “Lyndsie Butler, Social Services Director” rather than to “Brian Echols, Social Services Director.”

Agency used current agent, 81 Fed. Reg. 10909

The designated agent and address for the White Mountain Apache Tribe was “Cora Hinton, ICWA Representative/CPS Supervisor, P.O. Box 1870, Whiteriver, AZ 85941.” (79 Fed. Reg. 72029.) The Agency sent notice to the designated address, but to “Mariella Dosela, ICWA Representative” rather than to “Cora Hinton, ICWA Representative/CPS Supervisor.”

Agency used current agent, 81 Fed. Reg. 10909

The designated agent and address for the Yavapai Apache Nation was “Linda Fry, Director, Department of Social Services, 2400 West Datsi Street, Camp Verde, AZ 11 86322.” (79 Fed. Reg. 72029.) The Agency sent notice to the designated address, but omitted Linda Fry’s name and title. In other words, it simply sent the notice to the tribe, rather to any particular person at the tribe.

Current designated agent: Ray DiQuarto, Social Services Director, 2400 West Datsi Street, Camp Verde, AZ 86322

The designated agent and address for the Crow Tribe of the Crow Reservation of Montana was “Melveen Paula Fisher, ICWA Coordinator, P.O. Box 340, Crow Agency, MT 59022.” (79 Fed. Reg. 72026.) The Agency sent notice to the “ICWA Representative” rather than to Fisher as “ICWA Coordinator.” Moreover, the notice was not sent to the address designated in the Federal Register; it was sent to P.O. Box 159 rather than to P.O. Box 340.

Agent is the same in both Registers.

The designated agent and address for the Lower Sioux was “Reanna Jacobs, ICWA Advocate, Darin Prescott, Director, 39568 Reservation Highway 1, Morton, MN 56270.” (79 Fed. Reg. 72021.) The Agency sent notice to “ICWA Representative” rather than to “Reanna Jacobs, ICWA Advocate, Darin Prescott, Director.” Moreover, the notice was not sent to the address designated in the Federal Register

Agent is the same in both Registers.

The designated agent and address for the Oglala Sioux Tribe was “Juanita Sherick, Director ONTRAC, P.O. Box 2080, Pine Ridge, SD 57752.” (79 Fed. Reg. 72020.) Although the Agency sent notice to the designated address, it directed it to the “ICWA Administrator” rather than to “Juanita Sherick, Director ONTRAC.” While sending notice to an ICWA Administrator may well be sufficient in some instances, the record in this case does not explain why it would be sufficient when the designated agent is someone who is instead the Director of “ONTRAC.”

Current designated agent is Emily Iron Cloud-Koenen, ICWA Administrator, Oglala Sioux Tribe—ONTRAC, P.O. Box 2080, Pine Ridge, SD 57770

The designated agent and address for the Santee Sioux Nation was “Clarissa LaPlante, ICWA Specialist, Dakota Tiwahe Service Unit, Route 2, Box 5191, Niobrara, NE 68760.” (79 Fed. Reg. 72020.) The Agency sent notice to the designated address, but directed it to the “ICWA Specialist” rather than to “Clarissa LaPlante, ICWA Specialist.”

Current designated agent is Carla Cheney, ICWA Specialist, Santee Sioux Tribe of Nebraska, Dakota Tiwahe Social Services Program, Route 2, Box 5191, Niobrara, NE

The designated agent and address for the Standing Rock Sioux Tribe was “Terrance Yellow Fat, Director, Indian Child Welfare Program, P.O. Box 770, Fort Yates, ND 58538.” (79 Fed. Reg. 72020.) According to the certified mail receipt and return receipt, the Agency sent notice to the designated address, but directed it to “Raquel Franklin” rather than to “Terrance Yellow Fat, Director.”

Agency used current agent, 81 Fed. Reg. 10900.

The designated agent and address for the Hannahville Indian Community of Michigan was “Jessica Brock, ICWA Worker, N15019 Hannahville B1 Road, Wilson, MI 49896.” (79 Fed. Reg. 72021.) The Agency sent notice to the designated address, but directed it to “ICWA Worker” rather than to “Jessica Brock, ICWA Worker.”

Agent is the same in both Registers.

The designated agent and address of the Prairie Island Indian Community was “Nancy Anderson, Family Service Manager, 5636 Sturgeon Lake Road, Welch, MN 55089.” (79 Fed. Reg. 72021.) The Agency sent notice to the designated address, but directed it to “ICWA Representative” rather than to “Nancy Anderson, Family Service Manager.” The record does not disclose why the notice would ensure that it would be delivered to the appropriate person

Current designated Agent is Renae Wallace, Family Service Manager, 5636 Sturgeon Lake Road, Welch, MN 55089;

The designated agent and address for the Sisseton-Wahpeton Oyate tribe was “Evelyn Pilcher, ICWA Specialist, P.O. Box 509 Agency Village, SD 57262.” (79 Fed. Reg. 72020.) The Agency sent notice to the designated address, but directed it to “ICWA Director” rather than Pilcher as “ICWA Specialist,” and added “Lake/Traver” to the name of the tribe.

Agent is the same in both Registers.

At least the Agency didn’t send notice to a tribal newspaper (100% true story).

California Appellate Court Finds Waiver of Tribal Immunity in Dispute over Authority of Council to Waive Immunity

Here is the opinion in Findleton v. Coyote Valley Band of Pomo Indians (Cal. Ct. App.).

An excerpt:

This appeal requires us to determine whether a Native American tribe known as the Coyote Valley Band of Pomo Indians (the Tribe) validly waived its sovereign immunity for purposes of the enforcement by construction contractor Robert Findleton (Findleton) of arbitration provisions in contracts between them. Findleton claims the Tribe waived its sovereign immunity when its Tribal Council entered into, and then amended, contracts with Findleton containing arbitration clauses and also adopted a resolution expressly waiving sovereign immunity to allow arbitration of disputes under the contracts. The Tribe disagrees, arguing the Tribal Council lacked authority to waive the Tribe’s immunity and therefore any such waivers were invalid, because the power to waive the Tribe’s immunity had not been properly delegated to the Tribal Council in accordance with the procedures specified by the Tribe’s constitution. The superior court agreed with the Tribe and held that it lacked jurisdiction over Findleton’s claims because there had been no valid waiver of the Tribe’s sovereign immunity. Findleton appealed.