Here are the materials in State of Ohio ex rel. Ohio History Connection v. Moundbuilders Country Club Company:
Prior post here.
NYTs coverage here.
Ohio Court of Appeals
ICWA Inquiry Case from Franklin Co. Ohio
A county with at least one awful case has a much better inquiry decision here. Turns out this is not enough, judges:
[Judge]: The question was posted as to whether or not the
requirements of ICWA had been met and hopefully, someone
has that answer for us.
[FCCS Attorney]: We did locate a log in which intake has asked
[appellant] if she participated with any Cherokee tribal
affiliation or membership. The answer was in the negative. And
then on June 15, 2018, subsequent to the complaint being filed
where [appellant] alleged some kind of Cher — Cherokee – * * *
heritage, [appellant] was put under oath on the record as noted
under [the juvenile court magistrate’s] order and she did state
that she did — was not eligible for membership and therefore,
no ICWA notifications would be required under the law. And at
that point the prosecutor had proceeded on the
adjudication/disposition as those notifications weren’t
required. But we did locate that; that is all in the record.
[Appellant] was put under oath again on June 15, 2018 and all
of that testimony is on the Court’s record. Thank you.[Judge]: Thank you. Not being familiar with the whole ICWA
process, I trust that satisfies everyone’s concerns in regard to
ICWA?[Appellant’s counsel]: Yes, Your Honor.
[Judge]: Very good then.
Pretty rare to be ok with admitting you just don’t know how to apply/aren’t familiar with a 40 year old law.
As such proper inquiry was not made here, we expressly make no
determination as to whether the juvenile court knows or has reason to know pursuant to 25
C.F.R. 23.107(c). We also expressly make no determination as to whether the children are
Indian children as defined in 25 U.S.C. 1903. Nevertheless, given the potential for
invalidation of a custody determination, we sustain the third assignment of error
Ohio COA Rules against Country Club Built on Ancient Native Mounds
Reason to Know [ICWA] Out of the Ohio Court of Appeals
In most states, this would most certainly be reason to know, and the agency would be required to do additional inquiry and notify a tribe. When we talk about inconsistent application of the law, this is definitely one of those areas.
With respect to Mother, the following exchange took place:
[MOTHER]: My dad is an Iroquois tribe, but I don’t know if he’s registered, but, I mean, his family is all native Americans and stuff. Yes, they are.
[COUNSEL]: But what we need to know is whether you yourself are registered with a tribe.
[MOTHER]: Oh, no.
[COUNSEL]: You’re not. Okay. That’s what we needed. Thank you, your Honor.
THE COURT: Okay.
[COUNSEL]: So ICWA does not apply then. THE COURT: Okay. You’re definitely not registered?
[MOTHER]: No, sir. (Jan. 16, 2018 tr. 5-6.) {¶23}
Thus neither L.D. nor S.D. are members of a tribe, and Mother, herself, is not a member of any tribe. Although Mother alleged that her father is an Iroquois, L.D. and S.D. are not his children; they are his grandchildren. As previously stated, the ICWA defines an “Indian child” as any minor child who is either a member of an Indian tribe or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. 1903(4) (Emphasis added.) A grandchild of a member of an Indian tribe falls outside the definition and therefore does not qualify as an “Indian child” under the act. Therefore, the ICWA is inapplicable, and the trial court was not required to comply with its mandates.
Transfer to Tribal Court Case out of the Ohio Court of Appeals
This is a procedurally complicated case, with a hostile GAL. The conclusion of the appellate court is disappointing:
It is not for this court to decide where and with whom C.J., Jr. should live. However, we have been asked to decide the legal question of who should make the custody determination concerning this child. Based on the foregoing, that decision should be made by the Ohio court after a full evidentiary hearing taking into account the best interests of C.J., Jr., any competing interests of the other parties to this litigation, and the full participation of GRIC. Whether the trauma that might result from removing C.J., Jr. from the only home he has known since he was two years old should outweigh the interest of GRIC in having him transported across the country and raised as part of the GRIC must be determined with all the wisdom, compassion, and experience of the juvenile court.
This article has quotes from the tribal attorney in the case.
Ohio Court of Appeals ICWA Inquiry Case
Here.
Ohio Appellate Court Rejects Claim to Immunity from State Regulation Alleged by Fake Indian
Here is the opinion in State v. O’Connor:
An excerpt:
Appellant urges that he (or his alter ego Noble Bull Horn Sirius O’Connor Bey) is a member of a Native American tribe called the Washitaw Nation of Muurs or Washitaw Tribe of Moors; that such tribe is not required to abide by the laws of Ohio; that he is permitted to drive in Ohio without a license as long he is not engaged in commercial driving; and that Arian S. O’Connor no longer exists as a person because a trust was formed that somehow involves the name or persona of Arian S. O’Connor. The alleged basis for all these beliefs is not clear from the record. At least two Federal Courts of Appeals have declared that the Washitaw Nation of Muurs is fictional and is not recognized by the United States Government. Bybee v. City of Paducah, 46 Fed.Appx. 735, 736 (6th Cir.2002); Sanders–Bey v. U.S., 267 Fed.Appx. 464, 466 (7th Cir.2008). The record is clear that Appellant, under the name Arian S. O’Connor, once had a driver’s license, that this license was suspended by the Youngstown Municipal Court, and that he is responsible for the offense of driving in Austintown on September 14, 2013, while his license was still suspended. Appellant’s attempt to obscure these basic facts by reference to a fictional Native American tribe is unpersuasive.
Ohio Appellate Court Holds that Ohio Holds Title in Trust to Submerged Lands in Lake Erie
The Doctrine of Discovery strikes again! Here is the opinion of the Ohio Court of Appeals (11th Dist.) in State ex rel. Merrill v. State. Here is one of the key questions presented:
The state of Ohio, through the Ohio Department of Natural Resources (“ODNR”), has asserted trust ownership rights to the area of land along the southern shore of Lake Erie up to the ordinary high water mark, set at 573.4 feet above sea level by the U.S. Army Corps of Engineers in 1985. The Ohio Lakefront Group, 1 (“OLG”), along with several of its members, many of whom own property adjoining Lake Erie, dispute the authority of ODNR to assert these trust ownership rights without first acquiring the property in question through ordinary land appropriation proceedings. The validity of the ordinary high water mark, set at 573.4 feet International Great Lakes Datum (IGLD)(1985) is also disputed, the argument being that the ordinary high water mark is a boundary that must be determined on a case-by-case basis with respect to each parcel bordering the lake. Further, the ODNR’s authority to require landowners to lease land from the state of Ohio when that land is already contained within the legal description in their respective deeds is disputed.
The court holds that Ohio has trust title to the submerged lands, but that the water mark identified by the Army Corps of Engineers must be re-established at trial.
The history of Ohio lands from the moment of “discovery” in 1497 begins in paragraph 26. It may be worth discussing for anyone teaching Johnson v. M’Intosh this week (like me!).
Turtle Talk 
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