Montana Supreme Court on Reason to Know [ICWA]


And a long excerpt:

Contrary to the Department’s assertion and the apparent corresponding view of the District Court, the “reason to know” standard does not necessarily require an evidentiary showing, and certainly not by the parents, that a child or parent may be eligible for tribal membership. See 25 U.S.C. § 1912(a); 25 C.F.R. §§ 23.107-08. Nor does ICWA require that an assertion of potential tribal eligibility be certain. Gerardo, 14 Cal. Rptr. 3d at 802; Kahlen, 285 Cal. Rptr. at 511. See also 25 C.F.R. §§ 23.107(a), (c), -108(a). Any more stringent construction as suggested by the State would defeat ICWA’s manifest purpose and command. Certainly, a “reason to know” is a low standard, but not an unlimited one. In re Jeremiah G., 92 Cal. Rptr. 3d 203, 207-08 (Cal. App. 2009); In re Z.H., 740 N.W.2d 648, 653-54 (Iowa App. 2007). A “reason to know” requires something more than a bare, vague, or equivocal assertion of possible Indian ancestry without reference to any identified Indian ancestors with a reasonably suspected tribal connection. See Jeremiah G., 92 Cal. Rptr. 3d at 207-08; Z.H., 740 N.W.2d at 653-54. Pursuant to 25 C.F.R. § 23.107(c)(1), Mother’s asserted belief that she may be eligible for enrollment in the Crow Tribe was minimally sufficient to constitute a reason to know that the children were Indian children under the circumstances of this case.

¶22 We are further troubled by the Department’s apparent view that it has no affirmative duty to make further inquiry or provide tribal notice and inquiry when parents are not cooperative. Lack of parental cooperation is immaterial, is not a basis for equitable waiver or estoppel, and does not otherwise relieve state agencies and courts of the duty to comply with ICWA requirements. Kahlen 285 Cal. Rptr. at 512. ICWA vests Indian children and related Indian tribes with a federal right, independent of but on par with the right of Indian and related Indian tribes with a federal right, independent of but on par with the right of Indian parents, to specified tribal notice and eligibility determinations regardless of the conduct or disregard of the parents. Miss. Band of Choctaw Indians, 490 U.S. at 49-53, 109 S. Ct. at 1609-11; Kahlen, 285 Cal. Rptr. at 512. The practical difficulty or inability of a state agency to identify the correct tribe or substantiate an assertion of requisite Indian ancestry does not relieve the agency of its duty to comply with ICWA requirements. See Kahlen, 285 Cal. Rptr. at 512.

Cloud Peak Energy invests with Gateway Pacific Terminal to ship coal mined on Crow Reservation

News coverage of the event here.

LA Times article about Lummi Nation’s opposition here.

The Crow Tribe signed an agreement August 7, 2015, to become a 5% shareholder of Gateway Pacific Terminal, which is a partnership to open shipping ports in Washington.  The deal coincides with Cloud Peak Energy’s arrangement to pay Gateway Pacific Terminal $32 million to construct a port on Puget Sound that can ship 60 million tons of exports a year including coal mined on the Crow Reservation to Asian markets.  The Tribe leased coal to Cloud Peak Energy from its sole mine in 2013, but a new mine on the reservation could bring 20 million tons annually through the new port.

Although the Tribe does not owe any money up front it could be responsible for 5% of an estimated $700 million construction budget.  Final approval is still required from the Crow Tribe and the federal government.  Environmental surveys and plans are being conducted currently and there is opposition from both environmental and native groups including the Lummi Nation, who exercise fishing rights near the proposed port site.

Opinion in Westmoreland v. Dept of Revenue: Taxes Paid to Crow Tribe on Coal Mine Not a State Tax Deduction

Opinion here.

Applying § 15-35-102(11), MCA, to disallow a state tax deduction does not undermine the Tribe’s sovereign authority to tax or govern itself. The Legislature has simply chosen to limit the class of governments to which payment of taxes constitutes a deductible expense for coal producers. By so doing, the Legislature did not implicate tribal sovereignty.
Moreover, as the Department notes, WRI lacks standing to raise a claim implicating the Tribe’s sovereignty. See Northern Border Pipeline Co. v. State, 237 Mont. 117, 128-29, 772 P.2d 829, 835-36 (1989) (Taxpayer corporation had standing to challenge a state property tax, but did “not have standing to assert the Tribes’ sovereign right of self-government in doing so.”). The District Court did not err in so concluding.

Appellant’s Brief

Appellee’s Brief

Reply Brief

NYTs Article on Oravec v. Cole


An excerpt:

Two families from the Crow Indian Reservation in Montana can proceed with a lawsuit against an F.B.I. agent that accuses him of failing to properly investigate crimes against American Indians on and around the reservation, the United States Supreme Court has ruled.

Ninth Circuit materials here.

NYTs: Debate over Little Big Horn Battlefield on Crow Land

An excerpt from yesterday’s NYTs article (full article here):

Nearly 30 years ago, a group called the Custer Battlefield Preservation Committee began buying up land around the monument — some 3,300 acres in all — in an effort to stave off development. The group has since tried to donate the land, which it bought for $14 million that was raised through donations, to the Park Service.

But the service has said that unless Congress or the president changes the battlefield’s boundaries, it does not have the legal authority to accept the land.

Moreover, any land deal would need approval from the Crow tribe, which has considerable political influence in Montana and has resisted such a large land transfer.

The tribe cites a 1920 federal law, known as the Crow Act, which it says limits nontribal members to ownership of about 2,000 acres on the reservation, which is almost 2.3 million acres.

“We are trying to explain the advantages of adding on to the historical site right in the middle of their country, which would bring tourists — who need to eat, sleep and buy souvenirs — and produce jobs for Crow people,” said Harold G. Stanton, president of the Custer committee.

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Ninth Circuit Rejects Challenge to 2001 Crow Constitution

Here is the unpublished opinion in Harris v. Parisien.

And an excerpt from a local news article (Billings Gazette):

A federal appeals court has rejected a Billings woman’s claim that her rights were violated when the Crow Tribe of Indians adopted a new constitution in 2001.

Frances Harris is an enrolled member of the Crow Tribe. She sued in U.S. District Court, seeking to invalidate the 2001 tribal constitution because it eliminated a voting district for tribal members who do not live on the Crow Indian Reservation.

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Senate Finance Committee Hearing on Tribal Tax Policy

Go Del!

From Indianz:

The Senate Finance Committee will hold a hearing on Tuesday, July 22, to address tax policy in Indian Country.

Sen. Max Baucus (D-Montana), the chairman of the committee, said the hearing will address three specific issues: the Indian Employment Tax Credit, the tax-exempt bonds for tribal governments and accelerated depreciation for tribes. Witnesses at the hearing include Dante Desiderio, an economic development specialist for the National Congress of American Indians; Del Laverdure, the chief counsel for the Crow Tribe of Montana; and Wayne A. Shammel, the general counsel of Cow Creek Band of Umpqua Tribe of Indians in Oregon. The hearing takes place at 10am in Room 215 of the : Senate Dirksen Office Building.

Committee Notice:
Indian Governments and the Tax Code: Maximizing Tax Incentives for Economic Development (July 22, 2008 )

Fourth Part of Billings Gazette Special Report — Tribal Economies

From the Billings Gazette:

The Crow Tribe recently signed an innovative agreement with Montana and the federal government that will make it easier for banks to offer secured loans on the reservation. Essentially, it provides for seizure of personal property used as collateral when a loan is in default. (It does not apply to land held in trust for the tribe or its members.)

In 2004, the Crow Tribe adopted The Crow Finance Protection and Procedures Act, which makes it possible for banks to foreclose on trust property within the reservation. The catch is that at the foreclosure sale, the land can be sold only to the Crow Tribe or to a member of the tribe. If no eligible bidder can meet the price, the lender gets the beneficial title to the property but must continue to try to sell it to a qualified Crow buyer.

Differences in state and tribal law do come with some complications, but they aren’t barriers, said Mike Eakin, who works in the Billings office of Montana Legal Services.

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