Kansas SCT Reverses Suspension of Prairie Band Driver’s License Holder

Here is the opinion in Rodewald v. Kansas Dept. of Kansas.

From the court’s opinion:

Jacob C. Rodewald appeals from the district court’s summary judgment in favor of the Kansas Department of Revenue (KDR), upholding the suspension of Rodewald’s Kansas driver’s license. The basis for the suspension was K.S.A. 8-1567a, which prohibits any person less than 21 years of age from operating a vehicle in this state with a breath or blood alcohol content (BAC) of .02 or greater and which provides for a driver’s license suspension if the test results are greater than .02, but less than .08. Rodewald contends that because he is an enrolled member of the Prairie Band Potawatomi Nation and was operating a vehicle on the reservation when stopped by a tribal officer, the tribal court had exclusive jurisdiction over any civil matter arising from the incident, and the KDR acted outside the scope of its authority. We agree. The grant of summary judgment is reversed, and the matter is remanded to the district court with directions to order the reinstatement of Rodewald’s driver’s license.

In re T.S.W., Kansas ICWA Case on Finality for Appeal and Placement in Private Adoptions

Here.

The Kansas Supreme Court again comes out with strong language in support of ICWA. In addition, the case, which has a complicated procedural history given the actions of the private adoption agency, provides an interesting analysis of what is a “final order” in an ICWA case and a discussion of the collateral order doctrine:

Under the circumstances presented here, we conclude the district court’s order permitting a deviation from ICWA’s placement preferences did not dispose of the entire merits of the case and left open the possibility of future action by the district court with respect to T.S.W.’s placement. Thus, the Tribe has not appealed from a “final order, judgment or decree” under K.S.A. 2011 Supp. 59-2401a(b)(1), and we lack statutory authority to hear this appeal.
But that holding does not end our analysis. Alternatively, the Tribe urges us to exercise jurisdiction under the collateral order doctrine. That doctrine, which we sparingly apply, provides a narrow exception to the final order requirement. It “allows appellate courts to reach ‘not only judgments that “terminate an action,” but also a “small class” of collateral rulings that, although they do not end the litigation, are appropriately deemed “final.” [Citation omitted.]'” Kansas Medical Mut. Ins. Co., 291 Kan. at 611-12 (quoting Mohawk Industries, Inc. v. Carpenter, 558 U.S. ___, 130 S. Ct. 599, 605, 175 L. Ed. 2d 458 [2009]).

This case is also an illustration of the difficulties of ICWA and private adoptions. The adoption agency initially refused to consider any placements provided by the Cherokee Nation if the families couldn’t pay the $27,500 fee:

In this case, we need not extensively consider whether the Agency followed the placement preferences before seeking a deviation from those preferences. It did not. While the Agency made some effort to satisfy the second placement preference when it requested the Tribe provide available adoptive family profiles, the Agency impermissibly qualified its request in at least two ways. First, the Agency provided the Tribe with Mother’s extensive “criteria” for any prospective adoptive family. Second, the Agency specified that prospective adoptive families be able to pay the Agency’s $27,500 fee requirement. And while the Agency eventually indicated a willingness to modify its fee based on an unspecified sliding scale, the parties never agreed as to the parameters of that scale because Mother chose a non-Indian family based on profiles presented to her from the Agency.
Essentially, the Agency grafted its substantial fee requirement as well as Mother’s placement criteria (which ironically specified that the adoptive parents be Caucasian) onto ICWA’s placement preferences. Common sense dictates that ICWA’s placement preferences cannot be undermined in this manner. In fact, the Agency’s actions appear to fly in the face of Congress’ intent in enacting ICWA. See Holyfield, 490 U.S. at 37 (ICWA “‘seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society’ . . . by establishing ‘a Federal policy that, where possible, an Indian child should remain in the Indian community'” and ensuring that Indian child welfare determinations are not based on a white, middle-class standard that often forecloses placement with an Indian family).

The Court found that the agency and the lower court did not follow the placement preferences of ICWA, even after the Nation provided 17-20 (!) potential adoptive families for the child, and reversed the decision.

Kansas Supreme Court Decides ICWA Expert Witness Case

Here is the opinion in In re M.F. This court is continuing its good work in requiring trial court compliance with ICWA.

An excerpt:

[W]e affirm the Court of Appeals, concluding that the ICWA heightens the requirements for an expert’s qualifications beyond those normally required in a proceeding governed solely by state statutes. We further hold that Kansas district courts should consider the legislative history of the ICWA and the Department of the Interior, Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (1979), in determining if a witness meets the heightened standard. In this case, there was no evidence that the two social workers who testified were members of the child’s tribe, had substantial experience in the delivery of child and family services to Indians, had extensive knowledge of prevailing social and cultural standards and childrearing practices within the child’s tribe, or had substantial education and experience in the area of social work. Thus, the witnesses were not qualified expert witnesses under the ICWA, and there was no expert testimony to support the district court’s decision as required by the ICWA. Because this error is not harmless, we reverse and remand for new proceedings.