New Mexico Court of Appeals

New Mexico Supreme Court Grants Cert in ICWA Case

Matthew L.M. Fletcher

The New Mexico Supreme Court will hear State v. Marlene C. (link to court’s certiorari page). Here is the lower court opinion.

From the N.M. Court of Appeals opinion:

Mother appeals from an adjudication of neglect. Mother is a member of the Navajo Nation, and the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963 (2006), applies to Child. Although the parties to this case agree that ICWA does apply, they disagree about its specific application to issues of preservation and evidentiary requirements. We hold that under the circumstances of this case, ICWA permits Mother to challenge on appeal the sufficiency of the evidence presented at the adjudicatory hearing, and we further hold that the Children, Youth, and Families Department (Department) did not provide sufficient evidence to satisfy the requirements of ICWA. Accordingly, we reverse the adjudication of neglect and remand for further proceedings.

N.M. Court of Appeals Dismisses Tort & Privacy Claims against Tribe

Matthew L.M. Fletcher

Here is the New Mexico Court of Appeals opinion in Holguin v. Tsay Corp. An excerpt:

We can see no basis on which the district court could have appropriately denied Tsay’s motion to dismiss as to the two counts of invasion of privacy. Holguin has presented no argument or authority that overcomes the controlling law requiring physical injury or damage. We are unpersuaded by Holguin’s argument that use of his name and likeness is no different than if he were robbed of his jewelry and money at gunpoint. We leave that hypothetical, which, unlike the present case, involves threat, risk, and potential of physical harm, for another day. Presently, we are dealing solely with an alleged emotional injury resulting from an alleged inchoate, incorporeal invasion of his privacy. We cannot characterize Holguin’s claim as one for damages for physical injury to himself or physical damage to property, and thus cannot characterize the claim as one for bodily injury or property damage.

Commissioner of Public Lands v. New Mexico Cert Petition

Matthew L.M. Fletcher

This new filing (commissioner-public-lands-cert-petition) is an appeal of a New Mexico appellate court decision (here). The case also involves the Jicarilla Apache Nation, Navajo Nation, and Ute Mountain Ute Tribe.

Here is the question presented:

Whether the New Mexico Commissioner of Public Lands may claim federal reserved water rights with respect to lands Congress reserved from the federal public domain, and granted to the State of New Mexico subject to a strict, federally enforceable trust, to support public education and for other related purposes specified by Congress.

NM Ct App ICWA Decision: Cherino v. Cherino

Matthew L.M. Fletcher

Here’s the opinion, reversing a trial court decision transferring a simple Indian child custody case to the Isleta Pueblo tribal court.

From KVIA:

Custody dispute doesn’t belong in tribal court, appeals court says

Associated Press – December 19, 2007 7:05 PM ET

SANTA FE (AP) – Custody disputes involving Indian children and their biological parents may not be transferred from state court to tribal court.

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