Minnesota Supreme Court

Minnesota Supreme Court Affirms Tribal Immunity in City of Duluth v. Fond du Lad Band — UPDATED with Briefs

Matthew L.M. Fletcher1 Comment

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

10 14 13 FDL Reply

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.

Attorney Sanctioned by State for Behavior in Tribal Court

Kate Fort

Minnesota Supreme Court decision here.

The Director argues that Michael’s e-mail questioning the tribal court’s impartiality violated Rule 8.4(d). Michael counters that her accusation regarding the tribal court’s impartiality was well founded and, therefore, was not a violation of Rule 8.4(d). Similar to the misconduct in Getty, the conclusion that Michael’s conduct constitutes a violation of Rule 8.4(d) rests on the manner in which she raised her concerns about the tribal court’s alleged unfairness. Even if Michael could establish that her concerns were well founded, Michael’s flippant rhetorical question at the end of the e-mail that she addressed to the presiding tribal court judge and sent to opposing counsel was unprofessional and disrespectful. Michael’s conduct demonstrates a failure to “show . . . restraint and . . . respect for the judicial system even while disagreeing strongly with it or its decisions.” In re Getty, 401 N.W.2d at 671; cf. In re Snyder, 472 U.S. 634, 645-47 (1985)

Minnesota SCT Oral Argument Video in City of Duluth v. Fond du Lac Band Ojibwe

Matthew L.M. Fletcher2 Comments

Here.

News coverage here.

Lower court materials here.

Minnesota COA Decision Critical of Minn. SCT Precedent on Indian Country Jurisdiction, But Complies

Matthew L.M. Fletcher

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 Legislature Passes Bill to “Fix” the Minnesota SCT Decision In re R.S.

Matthew L.M. Fletcher

Minnesota Legislature Passes Bill to “Fix” the Minn. SCT Decision In re R.S.

HF 252, which was introduced by Rep. Susan Allen, overcame its final hurdle in the Minnesota Legislature by passing the House by a wide margin on May 10th. It passed the Senate with an equally wide margin the previous week and was signed into law on May 16th.

HF 252 reverses the affects of the Minn. SCT’s decision In the Matter of the Welfare of the Child of R.S. and L.S., wherein the Court denied a transfer of jurisdiction to a tribal court in a proceeding at the pre-adoptive stage. HF 252 amends Minnesota Statute 260.771, Subd. 3 to allow for transfers of jurisdiction at all four stages of a child custody proceeding: involuntary foster care placements; termination of parental rights; pre-adoptive; and adoption proceedings. HF 252 is a tremendous accomplishment for the 11 tribes and bands in Minnesota as well as a brave and courageous action by Rep. Allen.

Our prior post on this legislation is here.

Minn. Public Radio on Minnesota ICWA Gap Fix

Matthew L.M. Fletcher

Here. Our post on the bill is here.

An excerpt:

Minnesota American Indian tribes and their allies in the state Legislature are seeking to plug a gap in child custody laws opened by a state Supreme Court decision last year.

The court’s decision derailed the common practice of giving tribal courts a role during pre-adoption and adoption for off-reservation American Indian kids.

Until the late 1970s, American Indian children across the country were adopted outside their communities at very high rates. The practice had a devastating effect on tribes, as generations of youth were cut loose from their cultural identities.

“People thought they understood that children would fare better if they were raised in white middle class homes,” said Andrew Small, a lawyer and former tribal judge in the state. “When you remove a child from their home, that begins a process that sometimes is impossible to stop… a child is going to be lost to the tribe.”

In 1978, Congress passed the Indian Child Welfare Act, which was designed to allow tribes a say in child custody and adoption proceedings. Since then, Minnesota state courts dealing with custody of an American Indian child off the reservation have been able to transfer jurisdiction to tribal court, even in the later part of the proceedings, which are called adoptive or pre-adoptive stages.

But a Minnesota Supreme Court decision late last year found a gap in the Indian Child Welfare Act. The court decided that neither federal nor Minnesota statute explicitly allowed state courts, when dealing with an American Indian child living away from a reservation, to transfer jurisdiction during the later portion of custody proceedings.

 

Minnesota Legislative Bill to “Fix” the Recent Minn. SCT Decision In re R.S.

Matthew L.M. Fletcher2 Comments

Here:

12-5238

The bill would reverse the Minnesota Supreme Court’s decision in In re R.S., which held that:

1. The plain language of 25 U.S.C. § 1911(b) (2006) is not ambiguous and, with respect to an Indian child not residing or domiciled within the child’s tribe’s reservation, permits transfer to tribal court of only foster care placement and termination of parental rights proceedings.

2. The provision of the 2007 Tribal/State Agreement requiring transfer of “any child placement/custody proceedings” is void to the extent that it purports to require transfer of preadoptive and adoptive placement proceedings involving an Indian child not residing or domiciled on the reservation of the child’s tribe.

3. With respect to an Indian child not residing or domiciled on the child’s tribe’s reservation, Rule 48 of the Minnesota Rules of Juvenile Protection Procedure, providing for transfer of “the juvenile protection matter” to the tribal court of an Indian child’s tribe, is limited to foster care placement and termination of parental rights proceedings.

News Coverage of Minn. SCT Decision in In re R.S.

Matthew L.M. Fletcher

Here, via the North Dakota Supreme Court website (and the Grand Forks Herald).

Minnesota Supreme Court Releases In re R.S.

Matthew L.M. Fletcher1 Comment

Here is the opinion:

Opinion – Published

The court’s syllabus:

1. The plain language of 25 U.S.C. § 1911(b) (2006) is not ambiguous and, with respect to an Indian child not residing or domiciled within the child’s tribe’s reservation, permits transfer to tribal court of only foster care placement and termination of parental rights proceedings.

2. The provision of the 2007 Tribal/State Agreement requiring transfer of “any child placement/custody proceedings” is void to the extent that it purports to require transfer of preadoptive and adoptive placement proceedings involving an Indian child not residing or domiciled on the reservation of the child’s tribe.

3. With respect to an Indian child not residing or domiciled on the child’s tribe’s reservation, Rule 48 of the Minnesota Rules of Juvenile Protection Procedure, providing for transfer of “the juvenile protection matter” to the tribal court of an Indian child’s tribe, is limited to foster care placement and termination of parental rights proceedings.

Reversed and remanded.

A link to streaming video of the oral argument.

Here is our posting on our amicus brief and the lower court decision.

Minnesota Supreme Court Holds that State May Civilly Commit Minnesota Tribal Members for On-Reservation Crimes

Matthew L.M. Fletcher

Thanks to N.X.:

Today’s Star Tribune reports that the Minnesota Supreme Court ruled that tribal members aren’t exempt from civil commitment.  The link to the court’s opinion is here.

August 11, 2011 update:

Here is the opinion.

And the briefs:

Appellant’s Brief and Appendix

Appellant’s Reply