California Court of Appeals — Fourth District

California Tribes Seek Rehearing Or Depublication Of Official Immunity Ruling

Matthew L.M. Fletcher1 Comment

Here are the materials:

Petition for Rehearing

Cosentino – Application and Amicus Brief

Here’s a snippet from the petition:

The Opinion effectively holds that the Tribe’s Gaming Commission lacks authority to revoke a gaming license unless it cites to reasons for its actions that are expressly and affirmatively authorized to do so by codified law. That is incorrect as a matter of law. The Opinion also wrongly asserts that tribal sovereign immunity can be overcome by alleging that a tribal official acted in excess of his or her authority and that, upon such allegation, tribal official immunity is subject to an evidentiary weighing and balancing that involves shifting burdens of production and persuasion, similar to California’s law of qualified immunity. Tribal official immunity, however, is an absolute privilege, like the absolute immunity enjoyed by the Justices of this Court.

We previously covered this case here.

 

California Appeals Court Holds Pechanga Casino Officials May Be Sued in Employment Action

Matthew L.M. Fletcher2 Comments

Here is the opinion in Cosentino v. Fuller:

Opinion

An excerpt:

For sovereign immunity to apply, the claims against tribal officials must be based on actions the officials took in their  official capacity and within the scope of their official authority. An official’s actions that exceed the scope of his or her authority are not protected. Although the parties do not dispute that as members of the tribe’s gaming commission Defendants had the authority to revoke a gaming license if they received reliable information the licensee no longer satisfied the requirements for obtaining a license or had engaged in conduct that reflected poorly upon the tribe or its gaming activities, the record lacks evidence showing Defendants received any such information about Cosentino or an explanation of why they revoked his gaming license. Cosentino, however, presented evidence supporting his claim Defendants exceeded the scope of their authority by revoking his license without cause and in retaliation against him. Sovereign immunity prevents us from inquiring into the reliability of information Defendants may have relied upon in revoking Cosentino’s license or any other errors they may have made, but it does not prevent inquiry into whether Defendants exceeded their authority by using their official position to intentionally harm Cosentino.

Materials in a related Ninth Circuit matter are here.

Unpublished Active Efforts Case Out of California

Kate Fort

Here. Whether the state has the obligation to assist in enrolling dad and child at in the Chickasaw Nation as an active efforts requirement. The California Rules of Court include that in their definition of active efforts:

We note that the California Supreme Court is currently reviewing the validity of California Rules of Court, rules 5.482(c) and 5.484(c) in In re Abbigail A. (2014) 226 Cal.App.4th 1450, review granted September 10, 2014, S220187. However, briefing and decision of the issue in this court and further potential review in the Supreme Court would significantly delay this matter, while stipulated reversal with directions will benefit R.P.’s interests more expeditiously. (In re Rashad H., supra, 78 Cal.App.4th at p. 380.)
Reversal is therefore appropriate given DPSS’s and the juvenile court’s failure to make active efforts to secure tribal membership for R.P. Although only mother appealed, the parental rights termination order must be reversed as to both mother and father. (In re Mary G. (2007) 151 Cal.App.4th 184, 208.)

Three (Unpublished) California ICWA Cases

Kate Fort

One notice opinion involving relationships with the Pala Band of Mission Indians and perhaps a Cahuilla tribe, but of course, the department would have to send notice to determine that.

A second opinion holding the rules requiring CPS to help enroll a child in her tribe (Cherokee) as active efforts are valid

Consistent with this state interest in protecting an Indian child’s interest in tribal membership, rules 5.482 and 5.484 impose an affirmative duty on the juvenile court and the county welfare department to make an active effort to obtain tribal membership for a child when the tribe has notified the county welfare department that the child is eligible. To the extent the rules require CPS to make a reasonable, active attempt to obtain tribal membership for a child, we conclude the rules do not expand or conflict with the state or federal statutory definition of an Indian child. The rules’ requirement that CPS “provide active efforts under rule 5.484(c) to secure tribal membership for the child” (rule 5.482(c)) furthers the objective of ICWA and has no bearing on the ICWA definition of “Indian child.”

***

CPS received four requests to complete an enrollment application, beginning in December 2012, and still had not done so over six months later. The record does not show any reason for CPS not providing the Tribe with a completed, signed enrollment application by the time of the section 366.26 hearing in June 2013.
We therefore conclude CPS failed to comply with rules 5.482(c) and 5.484(c) by not taking reasonable, active steps to secure tribal membership for the children. Such error was not harmless. Active efforts to obtain membership for the children likely would lead to the children becoming Tribe members subject to ICWA protections, and would enable the Tribe to intervene if it so chose.

Finally, a fairly standard ICWA notice case, where even after the following, the parents were asked in court to stipulate that this was not an ICWA case.

In this case, Father provided the name and contact information for his uncle who he believed could provide more information about the children’s grandmother who was alleged to have Cherokee ancestry. There is no evidence in the record the Agency contacted the uncle. Further, the agency did not respond to the repeated requests from the Cherokee Nation for additional information. The Agency failed to make reasonable efforts to obtain any additional family history. Under these circumstances, we find the ICWA notice was inadequate because the Cherokee Nation was deprived of a meaningful opportunity to determine if M.S., E.S., and A.S. were Indian children.

California COA Decides Gaming Revenue Sharing Dispute involving California Valley Miwok Tribe

Matthew L.M. Fletcher1 Comment

Here is the opinion in California Valley Miwok Tribe v. California Gambling Control Commission:

D064271

An excerpt:

California Valley Miwok Tribe (the Tribe) appeals following a summary judgment in favor of defendant California Gambling Control Commission (the Commission). In granting summary judgment, the trial court ruled that until the federal Bureau of Indian Affairs (BIA) indicates, by entering into contract for federal benefits with the Tribe, that an internal tribal dispute about the Tribe’s membership and leadership has been resolved, the Commission is justified in continuing to hold in trust for the Tribe certain funds generated from Indian gaming in California that the Commission is required to distribute to the Tribe on a quarterly basis. As we will explain, we conclude that the trial court properly granted summary judgment in favor of the Commission, and accordingly we affirm the judgment.

Briefs here:

Appellant Brief

Intervenor Brief

Respondent Brief

Appellant Reply

Published Definition of Indian Child Case out of California

Kate Fort

Here.

ICWA Termination/Placement Case out of California

Kate Fort1 Comment

Here. Straightforward case, but an example of a clan mother from a tribe (Tuscarora) in New York working with California social services to find multiple placements for the baby.

Three Remanded for ICWA Notice Deficiency Cases out of California

Kate Fort1 Comment

Cases from the Second District, the Fourth District and the First District.

From the Second District:

Before the next scheduled hearing on January 31, 2013, DCFS submitted the following documents to the court: signed return receipts for the entities noticed; a letter from the Bureau of Indian Affairs acknowledging receipt of the ICWA notice but indicating it does not determine tribal eligibility; a letter from the United Keetoowah Band of Cherokee Indians in Oklahoma declining to intervene in the case because there was no evidence T.M. was a descendant of anyone on the Keetoowah Roll based on the information supplied; a letter from the Cherokee Boys Club, Inc., on behalf of the Eastern Band of Cherokee Indians, declining to intervene in the case because T.M. was neither registered nor eligible to register as a member of the tribe based on the information supplied; and a letter from the Cherokee Nation seeking further information. The Cherokee Nation letter asked DCFS to “verify correct spelling of maternal great great grandmother Lual Made [D.], also need her date of birth. Relationship of Eleonora [H.] to the above named child. [¶] We need dates of birth for everyone involved, their relationship to the child or children in question, and maiden names of all females listed. It is impossible to validate or invalidate this claim without more complete information.” (Boldface and capitalization removed.)

At the January 31, 2013 hearing, which was presided over by a different hearing officer than Commissioner Lewis, the court stated the tribes were properly noticed and it had received letters back from the tribes indicating T.M. was not an Indian child. The court found the ICWA did not apply. The court did not acknowledge the Cherokee Nation’s request for further information.

Just spit balling here, but maybe the reason Cherokee Nation puts part of its response in BOLDFACE CAPITALIZATION is to help a state court out, so it doesn’t find ICWA doesn’t apply when it might.

Calif. COA Briefs in California Miwok Tribe v. Calif. Gambling Control Commission II

Matthew L.M. Fletcher

Here:

Tribal Opening Brief

CGCC Response Brief

Intervenors Brief

Tribal Reply Brief

Earlier proceedings here.

A Particularly Troubling Unpublished Notice Case from California

Kate Fort

More than the usual troubling CA notice cases, that is. Particularly the part about not having to do *any* notice, regardless of the court’s confusion about the history and location of the Pascua Yaqui Tribe.

Here.

The social worker reported Audrey said her father, Luis H., has some Yaqui Indian heritage, but she had not spoken with him and did not have sufficient information to fill out the form. When the social worker telephoned Luis, he said his mother was born in Sonora, Mexico,and  mother’s father was Yaqui. He said he did not know if any family member was registered with a tribe, but reported no family member practiced any tribal customs.

***

At the contested jurisdictional/dispositional hearing on July 30, Audrey again indicated her only potential Indian heritage was from the Yaqui Tribe in Mexico. County Counsel said as a precautionary measure the Agency would provide ICWA notice to the Yaqui Tribe in the United States and, on August 1, it sent notice to the Pascua Yaqui Tribe in Arizona. The court, however, found ICWA notice was not required because there was no reason to believe Mason is an Indian child in that Audrey had indicated her only potential Indian heritage is through the Mexican Yaqui Tribe, and the Mexican Yaqui Tribe is not a federally recognized tribe governed by ICWA.