So for the first time since 2015, I’m giving myself permission to only read the reported ICWA cases rather than all of the unreported ones. So what does California do? Start reporting way more cases! Five in this first quarter (as opposed to 1 in 2021).
This case itself notes that this is not a particularly unique, but that by reporting it, just the reporting might lead to compliance.
We publish our opinion not because the errors that occurred are novel but because they are too common. Child protective agencies and juvenile courts have important obligations under ICWA. Failing to satisfy them serves only to add unnecessary uncertainty and delay into proceedings that are already difficult for the children, family members, and caretakers involved. Delayed investigation may also disadvantage tribes in cases where it turns out ICWA does apply, as their opportunity to assume jurisdiction or intervene will come at a late stage in the proceeding.
Unfortunately, I don’t think just reporting a case will lead to compliance, especially when this is the final result:
We conditionally reverse the section 366.26 orders. On remand, the juvenile court shall (1) direct CFS to comply with the inquiry and notice provisions of ICWA and sections 224.2 and 224.3 and update the court on their inquiry and the tribes’ responses and (2) determine whether ICWA applies. If the court determines ICWA does not apply, the orders terminating parental rights shall be reinstated and further proceedings conducted, as appropriate.
I haven’t crunched the numbers, but I am not convinced conditional reversal helps with compliance. Vivek Sankaran made this argument in the In re Morris case here in Michigan, and the sheer numbers in California indicate conditional reversal doesn’t seem to do much to change practice. I’m not sure reporting the case will change that. I still believe we should be reporting far more of the ICWA cases than we currently do, given that only about 20% of total ICWA appellate cases are reported.
Here are the materials in Albrecht v. County of Riverside (Cal. Ct. App.):
Desert Water Agency Brief
County of Riverside Brief
Coachella Water District Brief
Related decision (and why we said “again”) here.
Well all, I have absolutely fallen down on the ICWA TurtleTalk beat since the Washington Supreme Court decision in Z.J.G. Since I am getting older, I’m going to blame the new WordPress interface (please ignore that Fletcher is older than me and obviously figured it out just fine). So now, a series of posts with links to the reported cases since September 2020–don’t worry, this was an exceptionally small year for reported ICWA cases.
N.S. is a guardianship case (reading this, it’s possible I just wanted to end the year after Z.J.G. on a positive note). Here is the description of the lower court’s holding, which the appellate court affirmed. There is some preemption discussion on p 27-28 in the 54 page opinion, but not much.
Regarding substantial interference with N.S.’s connection to the Tribe, the court found that “once [Grandmother] is properly informed, once the expectations are concretely articulated, . . . she will encourage [N.S.] to learn about his heritage.” The court further found that given N.S.’s development, maturity, and curiosity, he would not “permit anybody [to] dissuad[e] him from making up his own mind as to not just his Indian heritage, but how it fits into his life.” Thus, the court concluded that there was not a compelling reason not to terminate parental rights based on a substantial interference with N.S.’s connection to the Tribe. 25
Regarding the Tribe’s identification of guardianship as the best permanent plan for N.S., the court believed that N.S.’s “guardianship was a very vital tool and opportunity for him to get to this point.” However, the court asserted that, “merely identifying guardianship to maintain the status quo would not recognize the increasing, the deep, the published connection [that N.S.] has with his grandmother.” The court found that in light of N.S.’s “current developmental progression and attachment to the grandmother,” guardianship was not in his best interests; therefore, the Tribe’s identification of guardianship as N.S.’s permanent plan had not “been established as a compelling reason not to terminate parental rights.”
Here are the materials in Herpel v. County of Riverside:
Trial Court Order
Here is the unpublished opinion in California Valley Miwok Tribe v. California Gambling Control :
Here is the opinion in Yavapai-Apache Nation v. La Posta Band of Diegueno Mission Indians:
Yavapai-Apache Nation v La Posta Band
Yavapai-Apache Nation Reply Brief
La Posta Opening Brief
Yavapai-Apache Nation Response Brief
La Posta Reply Brief
This appeal arises from a contract dispute between two Indian tribes: Yavapai Apache Nation (YAN) and La Posta Band of Diegueno Mission Indians (La Posta). YAN is an Arizona-based tribe with about 2,400 members, and La Posta is a California based tribe with about 15 adult members. In the parties’ contract, La Posta promised to repay more than $23 million to YAN for funds borrowed to develop a casino that later proved unsuccessful. The parties waived sovereign immunity in their contract.
In the final judgment, the superior court awarded YAN $48,893,407.97 on its contract claim, and entered judgment against La Posta on its declaratory relief claim based on the court’s finding this claim was not ripe. Both parties filed appeals from this judgment. For the reasons explained, we find no reversible error and affirm the judgment in its entirety.
Here is the unpublished opinion in California Valley Miwok Tribe v. California Gambling Control Commission (Cal. Ct. App. — 4th Dist.): D068909
Plaintiff California Valley Miwok Tribe (the Tribe) appeals from the trial court’s award of costs in favor of defendant California Gambling Control Commission (the Commission), following the Commission’s successful summary judgment against the Tribe in its lawsuit seeking an order requiring the Commission to pay over the funds to the Tribe from the Indian Gaming Revenue Sharing Trust Fund (RSTF). The Tribe contends that it is protected by tribal sovereign immunity from incurring any obligation to pay costs to the prevailing defendant in a lawsuit that it initiated. As we will explain, the Tribe’s position lacks merit, and accordingly we affirm the award of costs.
Related materials here.
Here is the opinion in Wells Fargo Bank NA v. Cabazon Band of Mission Indians .
The indenture and note between the Bank and the Tribe were secured by a perfected security interest in the DAR, after being deposited into the Tribe’s custodial account with the Bank. The indenture agreement at issue here did not confer any authority, control, or responsibility to the bondholder or the Bank for the conduct of any gaming activity. It merely provided the Bank and the bondholder with a security interest in a specific bank account. It did not and could not control what was deposited into that custodial account. A contract creating a security interest in a custodial account does not convey authority or responsibility for the conduct of any gaming activity. Therefore, it does not violate the sole proprietary interest rule.
Only brief I’ve found: Wells Fargo’s Reply brief
Here is the opinion in In re D.C.: