Here. And the OK Supreme Court agreed to publish the decision.
This case involved a guardianship:
ICWA defines “foster care placement” as “‘any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.'”25 U.S.C. 1903(1)(i). This guardianship case is governed by this definition of foster care placement because Mother cannot have her children returned on demand as shown by the fact that she requested that the guardianship be terminated and her request was denied.
The case also discusses the requirement of clear and convincing evidence to deny transfer. The trial court denied transfer stating it was the advanced stage of the proceedings–which it was because Cherokee Nation didn’t receive notice, and the delay was beyond the Nation’s control.
This is only the 16th time an appellate court reversed the lower court and ordered transfer. This is one of two from this year.
A disturbing case that is also a prime example of why ICWA Regulations are needed in addition to the new Guidelines (submit comments by MAY 19!)
The court reads a best interest determination into the good cause to deviate from placement preferences, and skates alarmingly close to the existing Indian family exception reasoning.
Here is the opinion in Wells Fargo Band NA v. Apache Tribe of Oklahoma:
This case arises from Wells Fargo Bank’s efforts to collect the balance of a $4,365,000 loan to the Apache Tribe of Oklahoma. The Tribe appeals various rulings of the district court in these consolidated appeals.1 Principally, the Tribe challenges the district court’s Judgment confirming an arbitration award in favor of the Bank, arguing it did not waive sovereign immunity or consent to be sued in Oklahoma district court. We find that there was a valid and express waiver of the Tribe’s sovereign immunity, that the Tribe’s agreement to arbitrate this dispute with the Bank is enforceable and that the arbitrator did not exceed his authority in awarding the Bank the unpaid balance of its loan. Therefore, the district court’s Judgment confirming that portion of the arbitration award is affirmed as are the subsequent orders issued in aid of the Bank’s effort to collect its Judgment
Here is the petition in Grand River Enterprises Six Nations Ltd. v. Oklahoma ex rel. Pruitt:
GRE Six Nations Cert Petition
And the questions presented:
1. Whether this Court’s precedents establish that the State of Oklahoma (along with 45 other States and various U.S. territories with similar statutes) can impose escrow obligations on certain cigarette manufacturers based partly on sales by Indian tribes to tribal members in Indian country.
2. Whether the Oklahoma Escrow Statute, as interpreted by the state courts in this case, violates federal law by imposing escrow obligations on certain cigarette manufacturers — including Indian-owned businesses operating on reservation lands mbased partly on sales by Indian tribes to tribal members in Indian country.
GRE v Oklahoma Cert Opp
GRE Six Nations Cert Reply
We reported several days ago about the tribal immunity case, Seneca Telephone v. Miami Tribe (Okla. Civ. App.). Here are the materials we’ve been able to gather so far:
Update (1/18): Miami Tribe Brief in Chief
Seneca Telephone Answer Brief
Miami Tribe Reply Brief
Troubling reasoning, in that the court seems to be saying that since tribes have no tradition of regulating telecommunications, they cannot have immunity.
Here is the case, captioned Seneca Telephone Co. v. Miami Tribe: seneca telephone.
Miigwetch to J.R.