Minnesota Court of Appeals

Minnesota COA Confirms Tribal Police Have Power to Detain and Deliver Non-Indians

Matthew L.M. Fletcher

Here is the opinion in State v. Thompson.

The court’s syllabus:

If a tribal police officer suspects a person who is not an Indian of violating a Minnesota criminal statute on an Indian reservation, and if the victim is not an Indian or there is no victim, the tribal police officer lawfully may detain the person and deliver him or her to state law-enforcement authorities for further investigation and prosecution.

Minnesota COA Rejects Name Change of Lake to Original Indigenous Name…

Matthew L.M. Fletcher

… in favor of keeping it named after an architect of the Indian Removal Act and slaveowner.

Here is the opinion in Save Lake Calhoun v. Strommen.

An excerpt from news coverage (here):

Signs around the lake have already been changed to reflect the Dakota name. In 2015, before any legal name change happened, the parks board did add Bde Maka Ska to the signs around the lake. The decision on what they’ll read going forward won’t be made for 30 more days.

“John C. Calhoun has a legacy that not too many people in this city want to honor anymore,” public historian Dr. Kate Beane said. “He created the Indian Removal Act, and that removal act led to the displacement and death of thousands of indigenous people, including the Cherokee Trail of Tears. This is not somebody who’s legacy we want in our city, and I think that the park board, the mayor, the city and the state and federal have agreed that a process was followed.”

Update: See the Save Lake Calhoun site.

Unpublished ICWA Case from MN, Judge Jesson Concurrence

Kate Fort

Here. This is an unpublished termination of parental rights out of the Minnesota Court of Appeals. Here is the concurrence in its entirety::

With a backdrop of historical trauma and a high number of Indian children being removed from their families and tribes by nontribal agencies, Congress passed the Indian Child Welfare Act (ICWA). See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32-37, 109 S. Ct. 1597, 1599-1602 (1989) (detailing the background for ICWA). Government must meet a high bar to terminate a parent’s parental rights in any case. ICWA and the Minnesota Indian Family Preservation Act require an even higher standard to terminate parental rights to an Indian child: proof beyond a reasonable doubt that returning the children to the parent will likely result in serious emotional or physical harm to the child. 25 U.S.C. § 1912(f) (2016) (ICWA); Minn. Stat. § 260.771, subd. 6(a) (2016)

Scant attention was given to this high standard during trial. This is troubling. Only one witness was asked to opine on the ultimate question of proof beyond a reasonable doubt. And, as the majority points out, that witness equivocated. And even after this court remanded the case to the district court, asking the court to directly address this question, the district court did not elaborate on the critical issue. It simply amended the findings to state that “[c]ontinued custody of [the children] by [mother and father] is likely to result in serious emotional or physical damage to the Children.”

I expect more when it comes to termination of parental rights for Indian children. We all should.

Yet I concur with the majority’s decision despite my view that, based on the nature of the expert testimony, this is a close case. I concur because the majority is correct that when we dive deep into the record we see children who suffered serious emotional damage with no realistic path to a different future with their parents. I concur because the tribe was unwilling to accept a transfer of jurisdiction to tribal court. I concur because the tribe supports termination of parental rights. And, most fundamentally, I concur because these children, like all children, deserve a permanent home, without additional delay.

But I remain concerned. In a state in which out-of-home placement for Indian children far exceeds the percentage for any other group of children, we need greater diligence in adhering to the high standards dictated by ICWA and the Minnesota Indian Family Preservation Act.