Prior post here.
Now we move to category 2 (sounds like a hurricane) — Doctrines, Laws, and Issues (aka, grabag or miscellaneous). The first four contests there….
# 1 Indian Child Welfare Act
It’s been a big year for ICWA a year after Baby Girl (we miss you so much). The Attorney General announced the Department of Justice’s commitment to the statute, the South Dakota class action filed by the Oglala Sioux Tribe is currently pending after much drama about whether Judge Davis was refusing to disclose evidence, and DOJ intervened as an amicus in an important Alaska case (as well as the South Dakota matter). Alaska will now give full faith and credit to Alaska tribal courts on ICWA matters.
The Virginia SCT issued a split opinion on what parts of state law on best interests are trumped by ICWA here, and the Kentucky Supreme Court reaffirmed its commitment the existing Indian family exception (not good, Kentucky). Montana’s Supreme Court issued a few troubling opinions expressing an infatuation with the Adoptive Couple v. Baby Girl decision.
State courts from around the country published opinions on a wide variety of ICWA subjects: tribal court transfer (Nebraska — that was a good one), father’s rights in contested adoption (Alaska), qualified expert witnesses (Arizona, Alaska), active efforts (Nebraska, Montana), termination of parental rights (Texas), placement preferences (California, and again), truancy (Nebraska), application (Oregon, North Dakota), and notice, notice, notice (Kansas COA, California –three times here, North Carolina COA, Michigan COA, California COA again, Nebraska COA, Michigan COA again
Important-ish unpublished opinions involved ineffective assistance of counsel (Michigan), active efforts (Michigan), burden of proof (Michigan), placement preferences (California), customary adoption (California), and … you guessed it … notice (Michigan COA, California COA, another Michigan COA, and yet another)
You might see a lot of Michigan here (here’s another), and that’s thanks to MIFPA.
#16 Federal Indian law preemption
The Chehalis/Great Wolf Lodge matter from 2013 helped bring federal Indian law preemption back from the dead. The State of Washington was still feeling the consequences this year. The real impact may be in the BIA leasing regulations.
# 8 Rule 19
My favorite FRCP. Lots of Rule 19 action again this year, including a close call at the Supreme Court, which denied cert in the Buena Vista matter. Other cases involved Jamul Indian Village, payday lending cases, and Skokomish.
# 9 Indian country voting rights
# 4 Indian gaming
Billions a year for tribal communities. Relentless litigation. Enough said.
# 13 Internet gaming
So far, pretty much nothing for tribal communities.
# 5 Intra-tribal disputes
This is the bad news part of the game.
# 12 Human trafficking
Here are the materials in Ute Mountain Ute Tribe v. Rodriguez:
CA10 Dissenting Opinion [the only opinion now available on the Tenth Circuit webpage]
The court has ordered Chehalis to show cause as to this question (our earlier post with the briefings on the Tribe’s motion for summary judgment is here):
Plaintiffs have alleged a new claim in their complaint that Defendants’ failure to follow Revenue’s opinion is a violation of both state and federal law. See supra. The original complaint, however, involved claims based only on issues of federal law. See Dkt. 1. Thus, before reaching the merits of Plaintiffs’ summary judgment motion, the Court orders Plaintiffs to show cause, if any they have, why this Court should exert jurisdiction over this new claim. Although Plaintiffs allege that Defendants’ failure to follow Revenue’s decision is also a violation of “federal preemption law,” there has been no showing that a county assessor violates federal preemption law solely by failing to follow a state agency’s opinion as to the imposition of a tax. In other words, if Revenue had opined that the tax was not preempted and the assessor refused to impose the tax, it is questionable whether the assessor’s action in conflict with Revenue’s opinion would raise a federal question invoking this Court’s jurisdiction. Therefore, the new claim seems to be purely a matter of state law regarding the authority of the state agency, Revenue, over the Thurston County Assessor.
Plaintiffs bear the burden to show why the Court should assert jurisdiction over this state law claim and why the Court (1) should not abstain from this matter, (2) is not divested from jurisdiction over this matter, or (3) should not decline to exercise supplemental jurisdiction over the new claim pursuant to 28 U.S.C. § 1367(c)(1).
Here is the order — DCT Order to Show Cause re State Law Claims
Chehalis has filed a motion for summary judgment against Thurston County on the question of whether the county may tax the non-Indian-owned portion of a Great Wolf Lodge located on tribal trust lands. The Western District of Washington previously denied the Tribe’s motion for a preliminary injunction (materials here). Here is the news coverage of the instant motion (Indianz and local).
And here are the briefs for the summary judgment motion:
The Maine Supreme Court ruled that Seneca Nation of Indians members doing business in Maine must acquire a state license to sell tobacco. Here is the opinion in Dept. of Health and Human Services v. Maybee. An excerpt:
Scott B. Maybee appeals from an order entered in the Superior Court (Kennebec County, Marden, J.) denying his motion for summary judgment and granting a summary judgment in favor of the Department of Health and Human Services. The Department brought a civil enforcement action pursuant to 22 M.R.S. § 1555-C(8 ) (2008 ) because Maybee failed to obtain a retail tobacco vendor license in violation of 22 M.R.S. § 1555-C(1) (2008 ). Maybee contends that because he conducts his tobacco delivery business from a location within the boundaries of an Indian reservation in New York State, the courts of Maine do not have subject matter jurisdiction, and the Maine vendor license requirement is preempted by federal law. Because subject matter jurisdiction exists and the Maine statute is not preempted, we affirm.
Ben Fenner of Fredericks Peebles & Morgan, LLP has published “Indian Country in Cyber Space: Bella Hess and Commerce Clause Constraints on Interstate, Mail Order Transactions” in the Albany Law Review.
From the introduction:
When political processes fail, the rule of law prevails or people rise to power. When the political process fails between tribes and the United States, defined as it is by federal statutes and case law, there is no rule of law and, therefore, leaders emerge. So it is that the panoply of tribal leaders is vast and ranges from ordinary men and women in seemingly mundane circumstances to warriors and negotiators who are household names.
The ability of the government to justify the annihilation of whole cultures was, and is today, driven by a perceived lack of resources (a euphemism for greed). And no resource is as scarce today, it seems, as money; few areas of federal Indian law are as contentious as states’ ability to tax and regulate tribal activity. While tribal immunity from state taxation is well-settled, what of state ability to tax Internet transactions originating on reservations? Part II of this Article is an overview of preemption in federal Indian law. Part III looks specifically to taxation and regulation of mail-order transactions. Part IV concludes that tribes may structure online transactions fulfilled on-reservation to preclude state taxation.