Appointment of Counsel Case out of OK Supreme Court [ICWA]

In a classic “ICWA means what it says” case (that means there is a lot of writing about dictionary definitions of terms in this opinion), the Oklahoma Supreme Court held a court can’t deny an indigent parent appointment of counsel for two years prior to a termination of parental rights filing. 

The trial court’s discharge of Mother’s court-appointed counsel left her without legal representation: 1) during her twin daughters’ removal from one relative foster home to another; 2) at all of the court-ordered ISP review/permanency hearings, which the record establishes she regularly attended; 3) during the Post-Adjudication Review Board (PARB) meeting held January 2017, when the Board advised Mother “to obtain legal aid to obtain custody of her children” and “DHS to help her complete this application”;19 and 4) at the August 23, 2017 hearing, during which the trial court approved DHS’ termination of trial reunification. Based on our interpretation of § 1912(b), Mother was required to have court-appointed counsel during the entire foster care placement proceeding.

Oklahoma SCT Punts (I Don’t Mean in a Bad Way) on State and Tribal Taxes on Nonmembers on Creek Nation Restricted Lands

Here is the opinion in Warehouse Market Inc. v. State of Oklahoma ex rel. Oklahoma Tax Commission.

Briefs:

Oklahoma Brief

Warehouse Market Brief

Reply

An excerpt:

The plaintiff/appellee, Warehouse Market subleased a commercial building from the defendant Pinnacle Management, Inc. The building is on federally restricted Indian land. Subsequently, the defendant/appellant, Oklahoma Tax Commission (OTC) and the Muscogee (Creek) Nation Office of Tax Commission (Tribe) both sought to collect sales tax from Warehouse Market. Warehouse Market filed an interpleader action in the District Court of Okmulgee County, in an attempt to have the court determine which entity to pay. However, the trial court dismissed the Tribe because it had no jurisdiction over it because of the Tribe’s sovereign immunity. The trial court then determined that the OTC could not be entitled to the sales tax unless and until the dispute between the OTC and the Tribe was resolved in another forum or tribunal. The OTC appealed and we retained the appeal. We hold that because the substance of Warehouse Market’s action/request for relief is a tax protest, exhaustion of administrative remedies is a jurisdictional prerequisite to seeking relief in the trial court.

Oklahoma SCT Declares Gov. Stitt’s Gaming Compacts with UKB and Kialegee are Invalid

Here is the opinion in Treat v. Stitt.

Briefs:

Petitioner’s Brief

Response Brief

Petitioner’s Reply Brief

An excerpt:

Petitioners, the Honorable Greg Treat, Senate President Pro Tempore, and the Honorable Charles McCall, Speaker of the House, request the Court to assume original jurisdiction to declare that the new tribal gaming compacts between the State and the United Keetoowah Band of Cherokee Indians and between the State and the Kialegee Tribal Town are invalid under Oklahoma law. The Court assumes original jurisdiction. Okla. Const. art. VII, § 4. The Court invokes its publici juris doctrine to assume original jurisdiction here as Petitioners have presented this Court with an issue of public interest in urgent need of judicial determination. Fent v. Contingency Review Bd.2007 OK 27, ¶ 11, 163 P.3d 512, 521. The Court grants the declaratory relief sought by Petitioners, as the Executive branch did not validly enter into the new tribal gaming compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. Ethics Comm’n of State of Okla. v. Cullison1993 OK 37, ¶ 4, 850 P.2d 1069, 1072.

Oklahoma SCT Decides Comanche Nation of Oklahoma ex rel. Comanche Nation Tourism Center v. Coffey

Here is the opinion. From the syllabus:

Plaintiff/Appellant Comanche Nation of Oklahoma, a federally recognized Indian Tribe, ex rel. Comanche Nation Tourism Center, filed a lawsuit seeking a declaratory judgment that Defendant/Appellant Wallace Coffey was indebted to it for the amount of the outstanding balance on an open account. The trial court granted Coffey’s motion to dismiss for lack of subject matter jurisdiction and dismissed the case with prejudice. Thereafter, Coffey filed an application for prevailing party attorney fees pursuant to 12 O.S.2011 § 936. The trial court denied Coffey’s request for attorney fees, finding he was not the prevailing party because he had not prevailed on the merits of the action. Coffey appealed the order denying attorney fees, and this Court retained the appeal. We hold a defendant is not a “prevailing party” within the meaning of 12 O.S. § 936 when the court dismisses the action with prejudice for lack of subject matter jurisdiction. The trial court’s order denying Coffey’s motion for attorney fees is affirmed.

Here are pdfs of the separate opinions:

Majority Opinion

Kauger DIssent

Combs Dissent

And the lone pleading I could locate:

Petition in Error

Cert Petition in Oklahoma Gaming Machines Tax Case

Here is the petition in Rogers County Board of Tax Roll Corrections v. Video Gaming Technologies, Inc.:

20200514142407520_Petition for Writ of Certiorari

20200514142428474_Appendix for Petition for Writ of Certiorari

Question presented:

Whether a generally applicable state ad valorem tax, as assessed against personal property owned by a non-Indian, out-of-state corporate entity and leased to a tribe for use in its casino operations, is preempted by the Indian Gaming Regulatory Act and the Court’s “particularized inquiry” balancing test, see White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), where the tax does not infringe on any federal regulatory purpose contained in the IGRA, the tax does not interfere with any tribal sovereignty interests, and the tax supports relevant and important government interests, such as law enforcement, schools and health services.

Lower court decision here.

UPDATE:

Tulsa County Assessor Amicus Brief

Cert Opp Brief

Oklahoma SCT Holds Tax on Video Game Machines Used at Cherokee Casinos is Preempted by Federal Law

Here is the opinion in Video Game Technologies v. Rogers County Board of Tax Roll Corrections.

Here is a related opinion involving machines at the Creek casinos, Video Game Technologies v. Tulsa County Board of Tax Roll Corrections.

Important ICWA Case Out of Oklahoma on Application and Transfer to Tribal Court

Here. This is a long post, but there’s some data at the end! The Oklahoma Supreme Court wins favorite sentence in an ICWA case of 2016:

“Appellants’ [State of Oklahoma and foster mother] unlearned understanding of what is binding case law and attempts to broaden holdings of this Court, the United States Supreme Court [Adoptive Couple v. Baby Girl], and the Tenth Circuit Court of Appeals [Neilson v. Ketchum], and ICWA’s provisions dealing with termination of parental rights will not support a reversal of the district court’s order. Because the district court did not err in granting the motion to transfer to tribal court, we affirm the order granting the motion to transfer.”

Facts (everything in bold is emphasis added):

M.H.C. (the child) was born in September of 2013. The Oklahoma Department of Human Services (DHS) placed the child in protective custody on November 5, 2013. In the initial petition filed on November 18, 2013, the State of Oklahoma1 (the State) declared ICWA’s provisions applicable. On November 21, 2013, the Cherokee Nation appeared at the initial appearance, and the natural mother informed the court that she had a Certificate of Degree of Indian Blood but was not currently a tribal member.

¶3 Thereafter, the Cherokee Nation received official notice from the State that it planned to adjudicate the child as deprived. The Cherokee Nation sent DHS a response notifying DHS that the child was eligible for enrollment in the tribe and enclosing a tribal-enrollment application for DHS to complete. The Cherokee Nation testified it could not complete the application without access to the child’s case file and birth certificate. After the Cherokee Nation’s initial attempt to have DHS complete the enrollment application, the Cherokee Nation sent DHS three additional enrollment applications. DHS employee Ms. Choate testified to seeing at least one application and acknowledged that a DHS employee can fill out a child’s enrollment application without natural mother’s assistance. Ms. Choate testified she had previously filled out a child’s application to help the child gain tribal membership.

¶4 On December 3, 2013, the district court ruled ICWA inapplicable. At the first family team meeting, the Cherokee Nation, the natural mother, and DHS were present. The natural mother was informed if she gained membership in the Cherokee Nation, ICWA would apply. The natural mother was also told if ICWA applied, the child would likely have to leave foster mother’s care because foster mother was a non-ICWA compliant placement. No party informed the natural mother of ICWA’s benefits and protections.2 The natural mother declined to enroll at the time. The district court subsequently found the State broke confidentiality by allowing the Cherokee Nation to attend a family team meeting in a non-ICWA case.

¶5 In September 2014, the State filed a motion to terminate the natural mother’s rights due to her absence in the pending court proceedings.The State served the natural mother by publication. On December 18, 2014, the court entered a Default Order of Termination of Parental Rights against the natural mother for failure to appear and defend her rights to her child. On February 5, 2015, the natural mother became an enrolled citizen of the Cherokee Nation. On February 19, 2015, the Cherokee Nation filed a motion to intervene and, on March 24, 2015, filed a motion to transfer to tribal court. In the spring of 2015, the district court vacated the order terminating the natural mother’s rights due to statutorily defective service. On June 9, 2015, the district court found natural mother’s rights were still intact and the permanency plan should be reunification.

The Appellants made the following arguments as to why OICWA and ICWA should not apply:

1. “Appellant’s position is that congressional intent to limit ICWA’s reach is found in its rejection of a proposed definition of ‘Indian’ to include all persons eligible for membership in an Indian tribe within ICWA’s purview whether or not a parent was a tribal member.”

2. “OICWA, 10 O.S.2011 §§ 40-40.9, limits ICWA’s application to children who are Indian children prior to the proceedings’ initiation.”

3. “ICWA’s plain language prohibits applying ICWA to a case where the child is not in a parent’s custody at the time the child comes within ICWA’s definition of Indian child.”

4. “Their initial premise is that the child was not removed from an Indian family because the mother was not enrolled at the time the State removed the child. Appellants assert that pursuant to Section 1902’s policy statement, ICWA applies only to ‘intact Indian families,’ and no Indian family existed at the time of the child’s removal.” An argument the Oklahoma Supreme Court called “at best, confusing.”

The Oklahoma Supreme Court found that “[t]he provisions of ICWA become effective in a state child custody proceeding on the date that the record supports a finding that ICWA applies. Section 1911(b) became applicable, with prospective application, when the child met the definition of an Indian child under ICWA. Appellants have failed to provide any authority which would require a different finding.”

The Supreme Court also agreed that transfer was appropriate, stating among other things:

Appellants claim the best interests of the child support denial of the transfer to tribal court. The record does not support their argument. The goal of the district court’s permanency plan was reunification with the natural mother. Appellants failed to present any evidence which would show that transfer to tribal court would not promote this goal. Although Appellants introduced evidence of a bond with a half-sibling in the foster mother’s care, they introduced no evidence of a bond with the foster mother and failed to present any evidence of physical or emotional harm to the child if the proceedings were transferred to tribal court. Appellants’ evidence was that the child would suffer from a change in foster-care placement-an issue not before the district court or this Court. ICWA’s placement preference are applicable to district court proceeding. And lastly, the best interests of the child can just as easily be determined by the tribal court.One argument Appellants strongly imply is that a tribal court could not make this determination. Appellants have not supported this implication, and we refuse to make such a finding.

Since the last time a state appellate court has affirmed a lower court’s transfer to tribal court, (In re Jayda L., Neb. Ct. App. 2012), there have been at least 13 other transfer cases. Only 2 others ended up with a transfer to tribal court (Kansas, Nebraska). This is the 20th case ever where the appellate court affirmed the lower court’s transfer decision. In comparison, there have been 22 times where the appellate court reversed the lower court’s decision to send the case to tribal court.

Oklahoma SCT Decides Case in Favor of Indian Football Players at Sequoyah High School in Talequah

Here is the opinion in Scott v. Oklahoma Secondary School Activities Assn.:

2013-10-01 OSSAA Opinion

A summary of the case by Chad Smith, who represented the players:

The OSSAA suspended 12 students at Sequoyah High School in Tahlequah and did not let compete in the state football championships.  Sequoyah is an Indian boarding school run by the Cherokee Nation.  The Oklahoma Supreme Court found the OSSAA was arbitrary and capacious and reversed the District Court.

Dissents in the Lift of Stay in Baby Girl Case and Additional Coverage of Proceedings

From the Oklahoma Supreme Court. Here.

 In addition to Veronica’s interests, the Cherokee Nation has been a party to all of the proceedings in the courts of South Carolina, in the United States Supreme Court, and in the courts of this State. As such, the Cherokee Nation has a direct and substantial interest in seeing that Veronica’s rights as an Indian child and member of the Cherokee Nation are fully protected, including the right to the special best interests determination under the law of the case. It would be virtually impossible for any court to make this special best interests determination without hearing from the Cherokee Nation.

Reif, V.C.J.

 

Everything in the life of Baby Girl has changed since 2011, and therefore, I cannot join the majority’s decision to dissolve the temporary stay and to deny original jurisdiction.1 Although this is a complicated case, we should accept our legal responsibility to follow established law in making a determination having such a profound impact on the life of this child.

Gurich, J.

H/T Constitutional Law Prof Blog

Today’s Tulsa World coverage here (including a discussion of the contempt charges in South Carolina).