Montana Supreme Court

Montana Supreme Court ICWA Case on Termination Standards

Kate Fort2 Comments

Here

Appellant M.D. (Father) challenges the Thirteenth Judicial District Court’s decision to terminate his parental rights to his minor child, A.L.D. Father contends that the State of Montana’s Department of Public Health and Human Services (Department) did not provide the active efforts required under 25 U.S.C. § 1912(d) to prevent the breakup of an Indian family; that A.L.D. was placed in a foster home in violation of the placement preferences set forth in 25 U.S.C. § 1915; and that Father’s attorney provided ineffective assistance of counsel. We affirm.

Briefs:
Appellant Brief

Appellee

Reply

Montana Supreme Court: State has Duty to Actively Determine if Child is Indian Child

Kate Fort3 Comments

Here.

In this case, as early as 2014, the State, through the Department, had reason to believe and, as asserted in its various petition averments and request for the District Court to proceed under ICWA, did believe that L.D. was an Indian child by affiliation with the Chippewa Cree Tribe. Though it gave due notice to the Tribe of the pendency of the initial foster care and subsequent parental rights termination proceedings, there is no evidence that the Department ever formally sought or received a conclusive tribal determination that L.D. was or was not eligible for tribal enrollment. Instead, the Department passively relied on the inaction of the Tribe and the assertions or beliefs of the parents that L.D. was not eligible for tribal membership. However otherwise reasonable, this passive reliance was insufficient to satisfy the Department’s ICWA burden to actively investigate further and ultimately make formal inquiry with the Tribe for a conclusive determination of L.D.’s membership eligibility.

Also, with briefing (a rarity in ICWA cases)!

DA 17-0419AppellantBrief

DA 17-0419AppelleeBrief

DA 17-0419ReplyBrief

Montana SCT Affirms Constitutionality of CSKT Water Rights Compact

Matthew L.M. Fletcher

Here is the opinion in Flathead Joint Board of Control v. State.

Briefs:

Board brief

State brief

Tribe brief

Board reply

State reply

Montana SCT Holds Water Rights Associated with Former Crow Allotment but Now Held by Others are Not Part of Tribal Water Right

Matthew L.M. Fletcher

Here are the materials in In re Scott Ranch:

Opinion/Order 

Amicus Curiae Brief 

Appellant Brief 

Montana SCT Affirms Immunity for Tribal Police Officer and CSKT

Matthew L.M. Fletcher

Here are the materials in Crawford v. Couture:

Montana SCT Opinion

Appellant Brief

Appellee Brief

Reply Brief

Montana SCT Affirms Approval of Crow Water Compact

Matthew L.M. Fletcher

Here is the opinion:

Montana SCT Decision

Briefs are here.

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

Matthew L.M. Fletcher1 Comment

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

Matthew L.M. Fletcher1 Comment

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

Matthew L.M. Fletcher5 Comments

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

Kate Fort

Here.

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.