Idaho SCT Decides Coeur d’Alene Tribe Water Rights Matter Largely in Tribe’s Favor

Here is the opinion in In re:CSRBA Case No. 49576 (Idaho S. Ct.).


Idaho Opening Brief

Appellants Opening Brief

US Response Brief

Coeur d’Alene Tribe Response Brief

HECLA Response Brief

North Idaho Water Rights Alliance Response Brief

Idaho Response Brief

Coeur d’Alene Tribe Reply

US Reply Brief

Appellants Reply

Idaho Reply Brief

Idaho SCT Enforces Coeur d’Alene Tribal Court Order against Nonmembers

Here is the opinion in Coeur d’Alene Tribe v. Johnson. (PDF)

An excerpt:

Here, the Johnsons assert that the Tribal Court is dominated by the Tribe. They point to the tribal law stating that the Tribe has jurisdiction over the river and to the amount of the fine imposed against them. As discussed above, the Johnsons have failed to show that the Tribe does not have jurisdiction over the bed of the St. Joe River adjoining their property. Further, while the fine was large, it was only one-fifth of that authorized by the tribal code. CTC 44-24.01 (authorizing a fine of $500 per day for unlicensed encroachments). We hold that the Johnsons have failed to show that the Tribal Court was biased. 

Further, the Johnsons had more than sufficient notice and opportunity to be heard in the Tribal Court. The record shows the Johnsons were informed of the proceedings on four occasions before default judgment was entered. Despite this, they elected to simply ignore the proceedings in Tribal Court. The Johnsons were not denied due process.

Coeur d’Alene Tribe Wins Writ of Mandamus from Supreme Court of Idaho

Opinion in Coeur d’Alene Tribe v. Lawrence Denney here.

Star Tribune article covering decision here.

The Supreme Court of Idaho ruled in the Coeur d’Alene Tribe’s favor yesterday when it ordered the Secretary of State to put in effect S.B. 1011.  The bill repeals a section of Idaho code enacted in 2013 that permitted wagering on “historical” horse races.  That law led to millions being invested in racing machines at non-Indian racetracks, but the Tribe and other critics claimed they were more similar to slot machines illegal under Idaho law.

The repeal went before the Governor on March 30, 2015.  However, he did not veto the bill until April 6, after the constitutionally mandated 5-day deadline.  Despite the violation, Idaho’s legislature took a vote to override the veto but it did not get a supermajority and the Secretary of State refused to certify the bill into law when the Tribe requested.

ICWA/PL-280 Case out of Idaho Supreme Court


Difficult case involving extreme domestic violence, a step-parent adoption, tribal court orders, state court orders, and interpretation of exclusive tribal jurisdiction under ICWA and PL-280. The challenge to state jurisdiction was brought by bio-father whose parental rights were terminated, which ultimately lead to the Court’s holding:

We find this reasoning to be persuasive and determine that Public Law 280 and Idaho Code section 67-5101 constitute an exception to ICWA’s exclusive jurisdiction mandate. Thus, we reject Doe’s argument that the magistrate court erred in exercising jurisdiction in this case.

Idaho SCT Decides ICWA Active Efforts Case

Here is the opinion for In re Jane Doe.

An excerpt:

Jane Doe appeals from an order terminating her parental rights to her son, TSD. Because TSD is an “Indian child” as that term is defined by the Indian Child Welfare Act, the magistrate court was required to make findings in addition to those required by Idaho law. Among other findings, the Department of Health and Welfare (“DHW”) was required to satisfy the court that it made “active efforts” to “prevent the breakup of the Indian family.” On appeal, Doe argues that the magistrate court erred in finding that DHW made such efforts and erred in failing to make that finding by clear and convincing evidence.


25 U.S.C. section 1912(d) requires that a party seeking termination of parental rights with respect to an Indian child “shall satisfy” the court that active efforts to prevent the breakup of the family have been made, not that the party show by clear and convincing evidence that such efforts have been made. The magistrate court stated that it was satisfied that DHW made active efforts to prevent the breakup of the family. In doing so, it made the finding required by 25 U.S.C. section 1912(d).

Native Wholesale Supply v. Wasden (Idaho) Cert Petition


Native Wholesale Supply v Wasden Cert Petition

1. Whether under circumstances in which a State is admittedly precluded from regulating an Indian it is also precluded from regulating a corporation wholly owned by an Indian and organized under the laws of a federally recognized tribe.
2. Whether, under a State law that purports to give the Attorney General power to “approve” all cigarettes before they may be imported into Idaho, the State of Idaho can prohibit an Indian-owned business on the Coeur d’Alene reservation from importing into that reservation cigarettes that are sold “FOB Seneca Nation” by a company wholly owned by a member of the Seneca Nation and licensed by the Seneca Nation to carry on such trade.
3. Whether the State of Idaho’s cigarette-sale statutes are preempted to the extent that they are enforced in a manner that prohibits Native Wholesale Supply Company (“NWS”) from trading with Warpath Inc. (“Warpath”).
4. Whether the State of Idaho can constitutionally exercise personal jurisdiction over NWS, an Indian-chartered entity located on Seneca Nation of Indians Land, situated within the geographic boundaries of the State of New York, where NWS sells the tobacco products “FOB Seneca Nation” to Warpath, and the products are then transported to Warpath’s place of business on the Coeur d’Alene reservation.

Lower court materials here.

Idaho SCT Affirms Jurisdiction over Native Wholesale Supply

Here is the opinion.

The court’s summary:

In an appeal from Ada County, the Supreme Court affirmed the decision of the district court that the State of Idaho can regulate the importation of cigarettes onto reservations located in Idaho and that the State has personal jurisdiction over non-resident defendant Native Wholesale Supply Company. The Supreme Court reversed the district court’s decision that Native Wholesale Supply Company is required to obtain a wholesaler permit for its sales to a tribal-owned retailer on the Coeur d’Alene reservation.

News coverage here.

Idaho Supreme Court Rejects “Church” of Marijuana Defense to Criminal Conviction

Here is the opinion in State v. Fluewelling.

An excerpt:

Defendant  relies  upon the phrase, “nor shall any preference be given by law to any religious denomination or mode of worship.”  He contends that a preference has been granted to another religion by Idaho Code § 37-2732A.  That statute exempts from the criminal sanctions in the Uniform Controlled Substances Act the transporting, delivery, or possession of peyote by“persons of native American descent who are members or eligible for membership in a federally recognized Indian tribe” when such peyote is “to be used as the sacrament in religious rites of a bona fide native American religious ceremony conducted by a bona fide religious organization.” Defendant argues that “[t]he government may not allow the use of peyote as  ‘the sacrament inreligious rites of a bona fide native American religious ceremony’ while at the same time punishing [Defendant] for his sacramental use of marijuana in the privacy of his home.”

Assuming that Idaho Code § 37-2732A grants a preference to certain native Americans in the practice of their religion, that would be a basis for invalidating that statute.  It is not a basis for invalidating Idaho Code § 37-2732(a)(1)(B) under which Defendant was convicted.  The statute under which he was convicted is of general application and it does not proscribe any conduct because it is engaged in for religious reasons or because of the religious belief it portrays.  It is entirely neutral with respect to religion.  It does not directly or indirectly give a preference to any religious denomination or mode of worship.  The district court did not err in denying Defendant’s motion to dismiss.