California Court of Appeals — Fourth District – Page 5

The superior court granted a preliminary injunction, prohibiting defendants and appellants Black Hawk Tobacco, Inc. (Black Hawk) and Frederick Allen McAllister (McAllister) from selling cigarettes to non-Indians in violation of state and federal laws. Black Hawk and McAllister appeal from the order granting the injunction. (Code Civ. Proc., § 904.1, subd. (a)(6).) On appeal, defendants argue that the State of California cannot regulate defendants’ sale of cigarettes to non-Indians because defendants are operating stores located on trust lands held by the United States for the Agua Caliente Band of Cahuilla Indians (the Band), a federally-recognized tribe. We reject this argument and hold the superior court did not abuse its discretion in granting the preliminary injunction against defendants.

Respondent’s Brief in Yavapai-Apache Nation v. Iipay Nation of Santa Ysabel

April 19, 2011Matthew L.M. Fletcher

Here:

Respondents Brief to YAN CA Appeal

Opening brief is here.

Opening Brief in Yavapai-Apache Nation v. Iipay Nation of Santa Ysabel

April 15, 2011Matthew L.M. Fletcher

Interesting case to watch in the California Court of Appeal. The case involves intertribal lending.

Here is the opening brief: YAN Opening Brief.

The YAN statement of the case:

May an Indian tribe avoid the jurisdiction of California courts, even after its chairperson (i) was authorized to negotiate and execute an agreement with a lender, (ii) executed an agreement with the lender containing a clear waiver of sovereign immunity, and (iii) warranted that the tribe had approved the agreement? The trial court below answered in the affirmative, dismissing a lawsuit for breach of a loan agreement, brought by plaintiff and appellant the Yavapai-Apache Nation (the “YAN”) against the defaulting borrower, defendant and respondent the Iipay Nation of Santa Ysabel (the “Iipay”).

The YAN asks this Court to correct this error. The law of California and of the United States has, for over a century, upheld the validity of acts of foreign officials and provided a presumption that such acts are valid; the burden of proof is on the party challenging the validity of such acts to show why they are not effective. This presumption, which applies equally to officials of Indian tribes, was not rebutted in this case. The Iipay authorized its chairperson to make an agreement with its lender (the rights to which the YAN succeeded), and all admissible evidence shows that the agreement was executed and approved by the Iipay. The Iipay breached the agreement. The Iipay should not be permitted to enjoy the benefits of an agreement until it defaults, and then avoid the consequences of its default by selectively disavowing the part of the agreement – the waiver of sovereign immunity and consent to jurisdiction in California – it finds inconvenient.

California Appellate Court Orders ICWA Case Transferred to Bois Forte Chippewa

February 17, 2011Matthew L.M. Fletcher

Here is the opinion in In re Jack C., reversing the trial court.

An excerpt:

In In re Jack C., III, D057034, the order terminating parental rights is reversed, and the matter is remanded to the trial court with directions to transfer jurisdiction to the Bois Forte Band of the Minnesota Chippewa, subject to the Band’s right of declination. If the Band declines jurisdiction, the juvenile court shall then reinstate the order terminating parental rights. (Cf. In re Francisco W. (2006) 139 Cal.App.4th 695, 706 [limited reversal disposition in defective ICWA notice appeals is in keeping with the public policy of our child dependency scheme, which favors prompt resolution of cases].)

California COA Holds that ICWA Notice to Tribe Not Required Where “Reasonable Probability” is that Child is Not Indian

July 29, 2010Matthew L.M. Fletcher

Here is the opinion in In re Skyler H.:

An excerpt:

While the standard for ICWA notice is low, it is not without reasonable limits. This case raises the issue whether a child’s specific but attenuated Indian heritage invokes ICWA notice requirements under section 224.3, subdivision (b), which describes circumstances that may provide reason to know the child is an Indian child. We hold the trial court has discretion to consider the totality of the information presented concerning the child’s family circumstances to determine whether it meets the threshold required for ICWA notice-“the court knows or has reason to know the child is an Indian child.” (§ 224.2.) We further hold ICWA notice is not required unless the totality of the family’s circumstances indicate there is a low but reasonable probability the child is an Indian child. Here, we conclude the case need not be remanded for ICWA notice because the family’s specific but attenuated Indian heritage does not provide reason to know the child is an Indian child.

California Court of Appeals Holds that California Valley Miwok Has Standing to Sue Cal. Gaming Commission

April 18, 2010Matthew L.M. Fletcher2 Comments

Here is the opinion in California Valley Miwok Tribe v. California Gambling Control Commission (Cal. App. 4th Dist.).

An excerpt:

The California Valley Miwok Tribe (the Miwok Tribe) appeals from a judgment of dismissal following an order sustaining the demurrer filed by the California Gambling Control Commission (the Commission) on the basis that the Miwok Tribe lacked capacity or standing to pursue its action against the Commission. As we will explain, we conclude that the trial court improperly concluded that the Miwok Tribe lacked capacity or standing, and further that none of the other grounds for demurrer asserted by the Commission have merit. Accordingly, we reverse the judgment.

California Appellate Court Decides ICWA Expert Witness Case

March 23, 2010Matthew L.M. Fletcher

Here is the opinion in In re M.B.

An excerpt:

Subsequently, the court conducted a hearing to select and implement a permanent plan of adoption. (Welf. & Inst.Code, § 366.26.) At the hearing, the juvenile court applied the Indian Child Welfare Act (ICWA), which requires the expert opinion of an Indian expert that continued custody of the child by the parent or Indian custodian would result in serious emotional or physical damage to the child. Both appeal the judgment. Father argues the judgment must be reversed because the Indian expert did not conduct an adequate investigation. Mother joins this challenge. We affirm.