Minnesota Court of Appeals

Minn. COA Affirms Transfer of ICWA Case to Sisseton Tribal Court

Matthew L.M. Fletcher

Here is the unpublished opinion in In re Child of C.L.

The court’s syllabus:

Appellants Traverse County and the guardian ad litem of O.L. challenge the district court‟s transfer of jurisdiction over this termination-of-parental-rights (TPR) proceeding to the Sisseton-Wahpeton Oyate Tribal Court, pursuant to the Indian Child Welfare Act (ICWA). Appellants argue that res judicata barred the tribe‟s motion to transfer jurisdiction. Alternatively, appellants contend that the “advanced stage” of the proceeding constitutes “good cause” to deny the transfer. Because res judicata did not apply and because the proceeding was not at an “advanced stage,” we affirm.

Minnesota COA Refuses to Depart from State Sentencing Guidelines in Indian DUI Case

Matthew L.M. Fletcher1 Comment

Here is the opinion in State v. Shingobe (Minn. App.). The case includes an interesting concurring opinion suggesting some sympathy to the defendant’s argument that she is the victim of “historical trauma”:

The historic trauma suffered by Native Americans has been well documented.  See, e.g., Grant Forman,  Indian Removal (2d ed. 1972).  The impact of that trauma continues to reverberate in their communities and our society continues to grapple with how to best address it.  Rates of poverty, unemployment, suicide, domestic violence, and substance abuse are all significantly higher among Native Americans.  Craig Lambert, Trails of Tears, and Hope, Harv. Mag., Mar.–Apr. 2008, at 39, 42-43.  In Minnesota, Native Americans are disproportionately represented in our prison population.  They are just over 1% of the overall population, but are 8% of our prison inmates. * * *

And:

Emphasizing factors unique to the Native American  community, appellant urges that we recognize that incarceration is not the best option for a Native American with a long history of mental disorder and substance abuse.  And while the sentencing guidelines do not allow considerations of race and social factors as reasons for departure, Minn. Sent. Guidelines II.D.1 a., d. (2010), some of those factors may be considered indirectly to determine whether a defendant is “particularly amenable to treatment in a probationary setting.”  State v. Solomon, 359 N.W.2d 19, 22 (Minn. 1984).

The record indicates that in addition to numerous convictions for driving while intoxicated and thus being a  risk to public safety, appellant has an extensive history of mental conditions and substance abuse.  I recognize that appellant may have greater prospects for overcoming her alcohol dependency by participating in a culturally appropriate program in long-term treatment facility instead of prison.  But, given appellant‟s record, an important consideration in the sentencing decision is that the proposed treatment be “consistent with public safety.”  See Minn. Stat. § 609.1055 (2010) (providing that a court may sentence an offender with a serious and persistent mental illness to probation, as opposed to incarceration, when “consistent with public safety”).  To properly address the safety risk, appellant should be in a secure (locked) treatment facility.  Unfortunately, an appropriate secured treatment facility, whether Native American or otherwise, does not exist.  Without such a facility, the judicial system has no other option besides incarceration.

 

Minnesota Court of Appeals Decides Two ICWA-Related Cases

Matthew L.M. Fletcher1 Comment

A10-1274 In the Best Interest of:  M. R. P.-C., Minor Child.
 In re the Matter of:  Kathryn Michelle Pollard, et al., petitioners, Respondents, vs. Faye Michelle Crowghost, co-respondent, Appellant; Anthony Patrick Pollard, Co-Respondent.
 Dakota County District Court, Hon. Judge Rex D. Stacey.
The district court has an affirmative obligation to inquire into whether the Indian Child Welfare Act (ICWA) applies to a custody determination when the facts suggest that the subject child may be an Indian child as defined by 25 U.S.C. § 1903(4) (2006).
Reversed and remanded.  Judge Jill Flaskamp Halbrooks.

A10-1390 In the Matter of the Welfare of the Child of:  R. S. and L. S., Parents.
 Fillmore County District Court, Hon. Robert R. Benson.
I.   The transfer-of-jurisdiction provisions of the Indian Child Welfare Act, 25 U.S.C. § 1911(b) (2006), and the Minnesota Indian Family Preservation Act, Minn. Stat. § 260.771, subd. 3 (2010), do not authorize or prohibit the juvenile court’s transfer to tribal court of a preadoptive-placement proceeding involving an Indian child who is not domiciled or residing within the tribal reservation.
II.   Minnesota Rule of Juvenile Protection Procedure 48.01, subdivision 3, permits the juvenile court to transfer to tribal court a preadoptive-placement proceeding involving an Indian child who is not domiciled or residing within the tribal reservation.
Affirmed.  Judge Natalie E. Hudson.

Minnesota Appellate Court Affirm State Jurisdiction over White Earth Ojibwe Member

Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion in In re Civil Confinement of Beaulieu.

The holding could be rendered moot if the Minnesota Supreme Court reverses certain aspects of the Johnson case referenced in the excerpt here:

Because Johnson was released by this court less than two months ago, we are constrained to follow it. See State v. Lee, 706 N.W.2d 491, 494 (Minn. 2005) (requiring that under the principle of stare decisis, a court must be extremely reluctant to overturn its own precedent and must have “compelling reason” for doing so). However, we are sympathetic to appellant’s arguments regarding the potential for fruitful cooperation between various entities of this state’s government and the White Earth Band of Ojibwe in the future to address mutual interests in protecting the public from SDP and SPP persons and in treating those afflicted with such disorders. While Indian self-governance and self-sufficiency are not encouraged when this state takes control of an Indian sex offender, such action is necessitated at this time because appellant has offered no evidence that the White Earth Band of Ojibwe has a civil commitment law or that it has any structure in place to treat SDP or SPP individuals. Thus, we conclude, as did this court in Johnson, that federal law does not preempt state jurisdiction, and exceptional circumstances exist to permit this state to exercise subject-matter jurisdiction over the SDP/SPP civil commitment involving appellant.

Minnesota Court of Appeals Holds State Court Has No Civil Confinement Authority over Minnesota Chippewa Members

Matthew L.M. Fletcher1 Comment

Here is the opinion in In the Matter of the Civil Confinement of Johnson.

The court’s syllabus:

The state does not have jurisdiction pursuant to Public Law 280 to civilly commit an enrolled member of a federally recognized Indian tribe as a sexually dangerous person under the Minnesota Commitment and Treatment Act.  But in the absence of express congressional consent, the state does have jurisdiction to civilly commit an enrolled member of a federally recognized Indian tribe as a sexually dangerous person under the commitment and treatment act where, as here, federal law does not preempt state jurisdiction and exceptional circumstances exist.

Briefs in Recent Shakopee v. Prescott Minnesota Court of Appeals Case

Matthew L.M. Fletcher

The opinion is posted here.

Here are the briefs:

Shakopee Opening Brief

Prescott Brief

Shakopee Reply Brief

Lower Sioux Not Necessary Party in State Ct. Contract Claim; Tribal Court Claims May Continue

Matthew L.M. Fletcher

This case is Lower Sioux Indian Community v. Kraus-Anderson Const. Co. (Minn. App.). Here is the unpublished opinion.

An exceprt:

Because Lower Sioux is not a necessary party to this litigation, we reverse the district court’s order joining Lower Sioux as a party and enjoining it from pursuing parallel tribal court litigation.
The determination that Lower Sioux is not a necessary party is dispositive. Thus, we need not reach and do not reach the parties’ dispute over whether Lower Sioux waived its sovereign immunity, either contractually or by initiating the district court action. Nor do we take any position on the jurisdiction of the tribal court over the subcontractor respondents or whether the subcontractors may be joined as parties to the tribal court proceedings. Those determinations are for the tribal court. See Klammer v. Lower Sioux Convenience Store, 535 N.W.2d 379, 381 (Minn.App.1995) (explaining that comity requires allowing tribal court to determine its own jurisdiction); Rule 12(c) of the Lower Sioux Community in the State of Minnesota Judicial Code Rules of Civil Procedure, available at http://maiba.org/pdf/LowerSioux.pdf (addressing standard for joinder in tribal court). We also deny as moot Kraus-Anderson’s motions to modify the record and to strike portions of one respondent’s brief because the disputes raised by the motions are relevant only to the issues that we have declined to reach.

Minnesota Court of Appeals Decides Uniform Foreign-Country Money Judgments Recognition Act Case re: Shakopee

Matthew L.M. Fletcher1 Comment

Here is the opinion: Shakopee Mdewakanton Sioux v. Prescott Appellate Opinion.

Minnesota COA Reverses Lower Court on Tribal Jurisdiction Issue

Matthew L.M. Fletcher

Baffles me why this is unpublished….

Here is the opinion in Nason v. 1991 Buick.

The tribal interest in self-governance rests with the Mille Lacs Band of Ojibwe Indians-both the incident leading to the forfeiture proceeding and the seizure of respondent’s vehicle took place on the Mille Lacs Reservation. Because respondent is enrolled in the Fond du Lac Band, the Mille Lacs Band’s interest in self-governance is not as strong over respondent. We reject respondent’s argument that we should consider the Minnesota Chippewa Tribe as a whole when assessing the strength of the interest in self-governance; that argument was considered and rejected by the supreme court in Davis, and we find nothing to distinguish respondent’s case from Davis.

Based on the state’s strong interest of promoting safety on state roads and the weaker tribal interest in self-governance present in this case, we conclude that a forfeiture proceeding against respondent in state court is not preempted by federal or tribal interests. We therefore conclude that the state has subject-matter jurisdiction to hear the forfeiture action involving respondent’s vehicle.

Minnesota COA Orders Trial Court to Transfer ICWA Case to Leech Lake Tribal Court

Matthew L.M. Fletcher

Here is the unpublished opinion in In re R.L.Z. (Minn. App.). An excerpt:

On appeal from the district court’s denial of a tribe’s motion to transfer this proceeding to terminate parental rights to tribal court, appellant Leech Lake Band of Ojibwe (the Band) argues that good cause to deny its motion did not exist because: (a) the Band filed its motion promptly after receiving notice of the proceedings, which were not at an advanced stage at that time; (b) the record before the district court did not indicate that transfer would create undue hardship on the parties or the witnesses; and (c) the district court improperly based its denial of the Band’s motion on the child’s best interests. We reverse.