Cert Petition (Yes, Another One) in Challenge to Crow Water Settlement

Here is the petition in Crow Allottees v. Dept. of Justice:

Crow Allottees Cert Petition

Question presented:

Can the water rights owned by individual Crow Indian allottees – which this Court in United States v. Powers, 305 U.S. 527 (1939) recognized as distinct individual rights, separate from water rights possessed by the Crow Tribe – be awarded to the Crow Tribe in negotiations between the United States, the tribe, and the State of Montana?
Further, do the Montana Courts have jurisdiction to decide these questions of federal law related to allottees’ rights?
Lower court materials: briefs, Mont SCT Opinion.
Related federal court materials here.

Montana SCT Briefs in Challenge to Apsaalooke (Crow) Tribe Water Compact

Here are the briefs in In the Matter of the Adjudication of Existing and Reserved Rights Both Surface and Underground of the Crow Tribe of Indians of the State of Montana:

Appellants Brief

Apsaalooke (Crow) Tribe Brief

US + Montana Brief

Reply Brief

Montana Supreme Court Briefs in re: Crow Water Compact

Here are the materials in In the Matter of the Adjudication of the Existing and Reserved Water Rights to the Use of Water, Both Surface and Underground, of the Crow Tribe of Indians of the State of Montana:

Allottees Opening Brief

Federal-State-Tribal Brief

Allottees Reply Brief

Montana Supreme Court ICWA Case


We conclude that Mother received fundamentally fair procedures prior to the termination of her parental rights. She never raised any objection to the lack of a formal adjudicatory hearing, and her stipulations reflect her assent to the determination that H.T. was abused or neglected. The child’s Tribe was notified of the proceedings at the early stages, indicated its desire to monitor the case, and did not participate after it received appropriate, timely notice of the termination hearing. Proper expert testimony was presented at the termination hearing. Because the District Court applied the wrong statutory standards in its final order, however, its judgment is vacated. We remand for entry of a new order on
the issue whether Mother’s parental rights should be terminated.

Split Montana SCT Affirms Denial of Indian Child Welfare Matter’s Transfer to Blackfeet Tribe

Here is the opinion and the various briefs in In the Matter of S.B.C.:

Appellant Brief — Blackfeet Tribe

Appellant Brief — Father

Appellant Brief — Mother

Appellee Brief — Response to Father

Appellee Brief — Response to Tribe

Appellee Brief — Response to Mother

Reply — Blackfeet Tribe

Reply Brief — Father

Reply Brief — Mother

Montana SCT Opinion


N.B. (Birth Mother) and S.B.C. (Biological Father) appeal from the order entered by the Fourth Judicial District Court, Missoula County, terminating both parents’ rights to their minor child, S.B.C, Jr. (S.B.C), and granting the Department of Public Health and Human Services, Child and Family Services Division (Child Services) permanent legal custody with right to consent to adoption. The Birth Mother and Biological Father also challenge the District Court’s order denying transfer of jurisdiction to the Blackfeet Tribal Court. The Blackfeet Tribe (Tribe) has filed a cross-appeal likewise challenging the denial of its motion to transfer jurisdiction to the Blackfeet Tribal Court and the termination of Biological Father’s parental rights. We affirm.


Lastly, the Tribe argues the District Court improperly considered the socio-economic conditions of the Tribal Court. Subsection (c) of the Guidelines prohibit the consideration of the “[s]ocio-economic conditions and the perceived adequacy” of the tribal court system in making a determination of good cause. 44 Fed.Reg. 67591. In an attempt to demonstrate that the court based its decision on the inadequacy of the Tribal Court system, the Tribe draws our attention to a number of assertions the District Court made in its findings of fact and conclusions of law. The District Court remarked throughout its findings of fact and conclusions of law that the Tribe “chose to sit on its hands and delay seeking jurisdiction over [S.B.C] for tribal financial reasons.” Further, the court insinuated that the Tribe believes its children are sacred “only when it is in its best financial interests to do so.”

From the dissent:

I disagree with the majority’s analysis of the “advanced stage” guideline. The State filed its termination petition on March 6, 2013. The Tribe, having intervened early in the case, moved to transfer jurisdiction on April 10, 2013, thirty-five days later. The District Court order faulted the Tribe for seeking transfer after “all the critical court proceedings [were] completed and decisions made,” yet the District Court had not conducted a hearing nor made a decision to terminate the parents’ rights. The hearing was not held until September 10, 2013, and the order of termination was not signed until January 15, 2014, eight months after the motion to transfer was filed. This situation does not implicate the dangers the “advanced stage” rule is designed to protect against and there is no indication of manipulation by any party.


Finally, I agree with the majority that the District Court’s repeated statements that the Tribe “sat on its hands” until it had a financial reason to seek jurisdiction were inappropriate. The BIA Guidelines specifically provide that a state court cannot base the “good cause” determination on “socio-economic conditions and the perceived adequacy of tribal social services or judicial system.” 44 Fed.Reg. 67,591. These statements reflect, at best, a refusal to comply with the Guidelines and, at worst, a strong bias against the Tribe and the Tribal judicial system. Such statements have no place in the District Court’s order and were highly inappropriate.

Montana ICWA Case: Notice, Active Efforts and a Look at Adoptive Couple Citations


A footnote in the case,

The record does not clarify whether G.S. ever had custody of M.S. The record is silent regarding G.S.’s relationship with M.S. prior to his incarceration. We recognize that 25 U.S.C. 1912(d) does not apply where the “breakup of the Indian family” has long since occurred. In re J.S., 2014 MT 79, P29, 374 Mont. 329, 321 P.3d 103 (citing Adoptive Couple v. Baby Girl, 570 U.S. __, 133 S.Ct. 2552, 2559 (2013)). Although the District Court asked during the April 22, 2013 hearing, before Baby Girl was decided, how the ICWA standard for termination applies in a situation where the child was never in the parent’s custody, the parties did not dispute that ICWA’s active efforts were required. Because this potential issue was not raised, we will not address it in this appeal.

got me looking for other cases that have cited Adoptive Couple. According to Westlaw, that would be 19 cases, including this one. Striking four of them as not child welfare cases, all 15 remaining were involuntary proceedings. Five from California, two from Montana, and one in Alaska, Nebraska, Oklahoma, North Carolina, North Dakota, Minnesota, Michigan, and Virginia.  Three cases “distinguished” Adoptive Couple, though that included the Alexandria P. case, so distinguishing Adoptive Couple doesn’t necessarily mean the court followed ICWA. Seven of the cases only cited the case (including this one).

Those that used the Adoptive Couple reasoning (instead of citing the case for fairly standard ICWA language)  include:

Native Villiage of Tununak v. State (holding that the adoption preferences of ICWA didn’t apply if the preferred placement didn’t “formally” move to adopt the child);

In re J.S. (applying the “continued custody” reasoning to a guardianship); and

In re Elise W. (discussing whether the case would change notice requirements when a parent never had custody)(unpublished case out of California’s First District).

In re T.S. (discussing when active efforts must start, in light of 1922 and 1912(d))

Opinion in Westmoreland v. Dept of Revenue: Taxes Paid to Crow Tribe on Coal Mine Not a State Tax Deduction

Opinion here.

Applying § 15-35-102(11), MCA, to disallow a state tax deduction does not undermine the Tribe’s sovereign authority to tax or govern itself. The Legislature has simply chosen to limit the class of governments to which payment of taxes constitutes a deductible expense for coal producers. By so doing, the Legislature did not implicate tribal sovereignty.
Moreover, as the Department notes, WRI lacks standing to raise a claim implicating the Tribe’s sovereignty. See Northern Border Pipeline Co. v. State, 237 Mont. 117, 128-29, 772 P.2d 829, 835-36 (1989) (Taxpayer corporation had standing to challenge a state property tax, but did “not have standing to assert the Tribes’ sovereign right of self-government in doing so.”). The District Court did not err in so concluding.

Appellant’s Brief

Appellee’s Brief

Reply Brief