Eighth Circuit Decision Upholding Tribal Jurisdiction in Watso v. Piper [ICWA, PL 280]]

Decision here.

This settles a long running string of cases out of the Minnesota federal courts in which the non-Indian parents of tribal member children argued there was no tribal jurisdiction over their children when they lived on the tribal reservation due to ICWA and PL 280.

ICWA holding:

Watso and Dietrich believe this provision means that “the tribe does not have jurisdiction over a child held by the state until the state court transfers jurisdiction to the tribe, which can only occur after a state court ICWA hearing.” To the contrary, § 1911(b) does not require a state court hearing. Section 1911(b) addresses the transfer of proceedings from state court to tribal court. Here, there were no state court proceedings. There was no transfer from state court to tribal court. Section 1911(b) does not apply.

PL 280 holding:

Public Law 280 does not require a state court hearing or any state court proceedings. See Walker v. Rushing, 898 F.2d 672, 675 (8th Cir. 1990) (“Nothing in the wording of Public Law 280 or its legislative history precludes concurrent tribal authority.”); Doe v. Mann, 415 F.3d 1038, 1063 n. 32 (9th Cir. 2005) (“Public Law 280 states have only concurrent jurisdiction with the tribes over child custody proceedings involving Indian children.”), citing Native Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548, 562, 559–62 (9th Cir. 1991) (rejecting argument that Public Law 280 vested enumerated states with exclusive jurisdiction). The SMSC Court’s jurisdiction over C.P. and C.H.’s child custody proceedings is consistent with Public Law 280.

And a succinct due process holding:

Lastly, Watso and Dietrich allege that the absence of a state court proceeding violated their due process rights, based on parents’ fundamental right “to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000) (invalidating state law that allowed any third party to petition state courts for child visitation rights over parental objections). They allege due process rights “to object and to stop the transfer, a right to notice and a right to a meaningful court hearing.” Watso and Dietrich had sufficient notice of the tribal court proceedings. They were heard in tribal court. They have presented no evidence of a due process violation.

Federal Court Dismisses Effort to Appeal Shakopee Tribal Court Marriage Dissolution/Child Custody Order

Here are the new materials in Nguyen v. Gustafson (D. Minn.):

35 Tribal Motion to Dismiss

39 Defendant Motion to Dismiss

41 Plaintiff Opposition

43 Gustafson Reply

44 Tribal Reply

47 DCT Order Granting Motion to Dismiss

Prior post here.

Dismissal of the Watso v. Piper Case

There have been a long series of federal cases in Minnesota involving tribal court child welfare jurisdiction over non-member children residing on the reservation (Watso, Nguyen). Most recently, Watso v. Piper was dismissed. The magistrate’s decision (that was upheld), is particularly well written.

Magistrate Report

Memorandum Opinion and Order

Watso v. Jacobson here

Americans for Tribal Court Equality here

BIA Acquires Pe’Sla Property in Trust for Four Tribes

Here is the decision in State of South Dakota v. Great Plains Regional Director, Bureau of Indian Affairs:

Decision

An excerpt:

For the reasons below, I affirm the Regional Director’s Decision to accept Pe’Sla in trust. The Regional Director properly determined that he had the statutory authority to accept Pe’Sla in trust pursuant to the IRA. Next, Department policies clearly provide the Regional Director with authority to accept Pe’Sla in trust due to its location within the BIA Great Plains Region. Finally, I reject the State’s argument that the Regional Director did not properly consider the relevant criteria included at 25 C.F.R. §§ 151.10 and 151.11.

Eighth Circuit Affirms Dismissal of Shakopee Tribal Member’s Prisoner Rights Claim

Here is the opinion in Brooks v. Roy.

An excerpt:

According to Brooks, he was placed into a 12-step program at New Dimensions because there is no alternative program at MCF-Faribault for those of a Native American faith. He says that the program “conflicts with his Native American religious faith” because it forces him to “profess beliefs that are inconsistent with his faith, which he does not wish to do.” Brooks does not, however, specify his religion or allege which principles of his religion are compromised or unaccommodated at MCF-Faribault. Instead, he requests to participate in what he asserts is a culturally appropriate treatment program available at the Mash-ka-wisen treatment center in Sawyer, Minnesota, which is 191 miles north of MCF-Faribault. Brooks says the defendants denied his request, and he appealed their decision until, he alleges, he had exhausted his administrative remedies.

Briefs:

Appellant Brief

Appellee Brief

Reply Brief

 

Materials in Minnesota/Shakopee Concurrent Jurisdiction Matter

Here are the materials in Lieske v. Liekse, litigating concurrently in Shakopee and Scott County, MN courts:

783-14 – Clerk’s Notice – Memorandum Opinion and Order – 5-15-14 [tribal court decision]

783-14 – Respondent (husband) Lieske’s Motion Dismiss Affidavit Lieske Memo of Law – 4-23-14 [tribal court motion]

783-14 – Scott County Decision on Jurisdiction – 5-8-14

11 18 14 Lieske State Court 2nd Decision on jurisdiction

Notice of Motion and First Affidavit to State court

Respondent Brief to State court on Jurisdiction

Wife Second Affidavit and supp brief to state ct

National Park Service Releases Effigy Mounds Desecration Report

Here:

EFMO_FOIA_ForWeb-2

News coverage here.

Federal Court Refuses to Intervene in Divorce Proceedings in Shakopee Tribal Court

Here are the materials in Lightfoot v. Jewell (D. Minn.):

13 Thomas Motion to Dismiss

18 Shakopee Motion to Dismiss

23 Lightfoot Motion for TRO

33 Thomas Opposition to TRO

35 Interior Opposition to TRO

37 Tribal Opposition to TRO

44 DCT Order Denying TRO