Here is the unpublished opinion in Irv’s Boomin’ Fireworks v. Muhar:
Minnesota Court of Appeals
Unpublished ICWA Case from MN, Judge Jesson Concurrence
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 This is an unpublished termination of parental rights out of the Minnesota Court of Appeals.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.
Minnesota COA Remands Off-Rez Treaty Rights Case to State District Court
Here are the materials in State of Minnesota v. Northrup:
Order – Jurisdiction Questioned
Memorandum – Informal – Respondent
Memorandum – Informal – Appellant
Order – Dismiss – Not Stipulated, Entire Case
News coverage here.
Minnesota Court of Appeals Decides ICWA Notice Appeal
Here is the unpublished opinion in In re Welfare of Child A.N.T. (Minn. App.):
An excerpt:
The district court properly inquired into whether ICWA applies here. After extensive testimony, the district court’s reopening of the ICWA issue, and dozens of tribal notifications, including one to the United States Bureau of Indian Affairs, no evidence was located to suggest that daughter is eligible for membership in any Indian tribe. Mother, through her mother, provided scant information pertaining only to practices and purported Native American heritage, but nothing concerning tribal membership or eligibility for membership. OCCS, despite extensive and documented efforts, was unable to verify that daughter is an Indian Child as defined by ICWA.
We have held that a district court does not err when it declines to apply ICWA where “there is no evidence that the children are eligible for membership in any Indian tribe.” In re Welfare of Children of M.L.A., 730 N.W.2d 54, 59 (Minn.App.2007). Further, in In re Matter of Baby Boy Doe, 849 P.2d 925, 931 (Idaho 1993), cert. denied 510 U.S. 860, 114 S.Ct. 173 (1993), the Idaho Supreme Court held that “[t]he party asserting the applicability of ICWA has the burden of producing the necessary evidence for the trial court to make” the determination of whether ICWA applies.
Mother failed to meet her burden of production concerning the application of ICWA. Therefore, the district court did not err in concluding that ICWA does not apply here.
Minnesota COA Affirms State Rules Limiting Non-Indian Fish Harvest on Mille Lacs Lake
Here is the opinion in Save Mille Lacs Sportsfishing v. Minnesota Dept. of Natural Resources:
Minnesota COA Affirms TRO against Western Sky; Rejects Immunity Defense
Here is the opinion in State ex rel. Swanson v. CashCall Inc.:
An excerpt:
Respondent State of Minnesota brought a consumer-enforcement action against appellants CashCall, Inc., and WS Funding, LLC, in July 2013, alleging that appellants are using a third company, Western Sky Financial, LLC, as a front to make usurious loans to Minnesota consumers. The state moved for a temporary injunction, and appellants moved to dismiss the state’s complaint pursuant to Minnesota Rule of Civil Procedure 12.02(e). The district court granted the temporary injunction and denied the dismissal motion. Appellants challenged both rulings in these consolidated appeals. Because the district court did not err by denying the dismissal motion and did not abuse its discretion by granting the temporary injunction, we affirm.
Minnesota Supreme Court Affirms Tribal Immunity in City of Duluth v. Fond du Lad Band — UPDATED with Briefs
Here is the opinion in City of Duluth vs. Fond du Lac Band of Lake Superior Chippewa Indians. Link to oral argument video here. Briefs are not available publicly, so if anyone has them, please send along.
Here are the briefs:
08 26 13 FDL Initial Brief – FINAL
09 30 13 City of Duluth Response Brief
An excerpt:
When an Indian band enters into a contract with a city, waives its sovereign immunity, and consents to be sued only in federal district court, a state court may go no further than interpreting contractual provisions pertaining to jurisdiction to determine whether the court has jurisdiction over a dispute arising under the contract.
Our post with a link to the Minnesota Court of Appeals decision, now reversed, is here.
Minnesota SCT Oral Argument Video in City of Duluth v. Fond du Lac Band Ojibwe
Minnesota COA Decision Critical of Minn. SCT Precedent on Indian Country Jurisdiction, But Complies
Here is the opinion in State v. Saros:
SAROS JAY CT APP DECISION 7.13
The issue involves state civil regulatory jurisdiction (in this case, traffic offenses) over on-reservation Indians who are members of the Minnesota Chippewa Tribe where a member of one band (say White Earth) is cited on the reservation of another band (say Leech Lake). The Minnesota Supreme Court in State v. Davis held that the White Earth member may be civilly cited by the state because he/she is not on his/her own reservation.
The Saros court writes:
We acknowledge, however, that the restriction on inter-reservation prosecution makes little sense. It is undisputed that the MCT is a federally recognized tribe, and that the six bands that make up the MCT are not individual federally recognized tribes, but are “component reservations.” Davis, 773 N.W.2d at 75 (Page, J., dissenting) (citing Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 73 Fed. Reg. 18,553, 18,555 (Apr. 4, 2008)). As Gary Frazier, the executive director of the MCT testified, it is impossible to be a member of one of the individual bands but not a member of the MCT. Nonetheless, the Davis decision holds that the differentiation between bands is dispositive as to whether tribal court has jurisdiction over the matter. In other words, under Davis, despite the fact that appellant is an enrolled member of the MCT, resides on Leech Lake, and the offenses occurred there, the tribe’s interest in self-governance is not applicable to his case because his reservation of registration is White Earth. This conclusion seems to conflict with Stone, which recognizes that “Indian tribes retain ‘attributes of sovereignty over both their members and their territory.’” 572 N.W.2d at 728 (quoting Cabazon Band of Mission Indians, 480 U.S. at 207, 107 S. Ct. at 1087).
Minnesota COA Forces Fond du Lac Band Back into State Court to Deal with City of Duluth’s Contract Breach Claim
Here is the unpublished opinion in City of Duluth v. Fond du Lac Band of Lake Superior Chippewa (Minn. App.).
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