California SCT & COA Materials in Huber Tax Case

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


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




Briefs in United Auburn Indian Community v. Brown — Authority of Governor to Concur in Two-Part Determination

In the California Supreme Court, here:

UAIC Opening Brief

State Answer Brief

Lower court decision here.

Two part determination letter here: BIA Letter.


California Supreme Court Case on Active Efforts and Tribal Membership


The Court held this court rule to be invalid:

The rule provides: “If after notice has been provided as required by federal and state law a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child.” (Rule 5.482(c), italics added.) We conclude the rule is invalid as a matter of state law.

But this rule to be valid:

Rule 5.484(c)(2) provides: “In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made . . . to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful. [¶] . . . [¶] (2) Efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers.”


California Supreme Court on Issues ICWA Notice Opinion


This is the In re Isaiah H. decision, where amici included the United States and California Indian Legal Services on behalf of appellant mother. Briefing was completed in this case more than a year ago, and oral arguments were heard in May.

We granted review to decide whether a parent who does not bring a timely appeal from a juvenile court order that subsumes a finding of ICWA‘s inapplicability may challenge such a finding in the course of appealing from a subsequent order terminating parental rights. Because ICWA imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child, we hold that the parent may a challenge a finding of ICWA‘s inapplicability in an appeal from the subsequent order, even if she did not raise such a challenge in an appeal from the initial order.


The continuing nature of a juvenile court‘s duty to inquire into a child‘s Indian status appears on the face of section 224.3(a). As noted, that provision reads: “The court . . . ha[s] an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . has been . . . filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.” (§ 224.3(a).) The plain language of this provision — declaring an “affirmative and continuing duty” that applies to “all dependency proceedings” — means that the juvenile court in this case had a present duty to inquire whether Isaiah was an Indian child at the April 2013 proceeding to terminate Ashlee‘s parental rights, even though the court had previously found no reason to know Isaiah was an Indian child at the January 2012 proceeding to place Isaiah in foster care. Because the validity of the April 2013 order is necessarily premised on the juvenile court‘s fulfillment of that duty, there is nothing improper or untimely about Ashlee‘s contention in this appeal that the juvenile court erred in discharging that duty.

Briefs here.

California Court of Appeals Orders Depublication of Cosentino Opinion



Depublication briefs here, here, and here.

Opinion here.

Another Update in Cosentino v. Fuller Depublication Request


Defendants’ Request for Depublication

Oppo to Viejas Band’s Depub Request

Opposition to Request of Defendants to Depublish

Opposition to Request of Group of 13

Prior depublication-related posts here and here.

Cal. COA opinion here.

Additional Request to Depublish Cosentino v. Fuller

Here (from the Viejas Band of Kumeyaay Indians):

Request for Depublication 07 14 15

Prior request for depublication here.

California Tribes Seeking Depublication of Cosentino v. Fuller

Here is the request to the California Supreme Court for depublication of Cosentino v. Fuller (Cal. Ct. App.) submitted by thirteen California Indian tribes:

Cosentino Request for Depublication – File Endorsed

Here’s an excerpt:

Here, it is undisputed that Plaintiff’s suit rests entirely on the quintessentially sovereign action of the Pechanga Gaming Commission: revocation of Plaintiff’s gaming license.  Opinion, pp. 6-7.  That action cannot be effected by Gaming Commissioners in their personal capacity — only a properly constituted Gaming Commission can revoke a gaming license.  Indeed, Congress has recognized that regulation of gaming on tribal lands is central to tribal self-governance.  25 U.S.C. § 2701. 

Even though it was “the official action of the [Tribe], following [Defendants’] votes, that caused [Plaintiff]’s alleged injury” (Imperial Granite, 940 F.2d at 1271), the Opinion appears to condition an officer’s immunity on the additional showing that the sovereign’s action fell within its authority and was benignly motivated.  Specifically, the Opinion evaluated whether the Tribe’s Commission acted with a retaliatory motive and whether it “revoked [Plaintiff’s] license on a ground identified in the IGRA, the Tribal-State Compact, or the Pechanga Ordinance.”  Opinion, pp. 16-17.  But where, as here, a plaintiff challenges official action of the tribe, the “tribe’s immunity is not defeated by an allegation that it acted beyond its powers.”  Imperial Granite Co., 940 F.2d at 1271.  The Opinion invites courts and litigants to disregard this firmly established protection of sovereign action under the guise of a “masked official capacity suit[].”  Pistor, 2015 WL 3953448, at *5.


Here are previous TurtleTalk posts on this matter: