Washington Court of Appeals – Page 4

Washington COA Rejects Snoqualmoo Indian Treaty Rights to Defense to Elk Harvest

April 4, 2017April 4, 2017Matthew L.M. Fletcher

Here is the opinion in State v. Snyder:

An excerpt:

In 1974, the United States District Court for the Western District of Washington, as affirmed by the United States Supreme Court, took continuing jurisdiction over fishing disputes arising from the Treaty of Point Elliot and other treaties. Since then, the federal courts have not only interpreted these treaties but continue to supervise their application. The supreme court has held that the lower federal court rulings in this matter bind the State, state courts, private individuals like the Snyders, and organizations like the Snoqualmoo Tribe. We see no reason why we should not follow this guidance in the case of hunting rights.

Briefs:

Washington COA Decides Section 81 Matter Involving Nooksack Business Corp.

April 4, 2017Matthew L.M. Fletcher

Here is the opinion in Outsource Services Management v. Nooksack Business Corp.:

Unpublished Opinion

An excerpt:

The Nooksack Business Corporation (NBC) borrowed more than $15 million to finance construction of and improvements to a casino on Nooksack Indian Tribe land. 25 U.S.C. § 81(b) (Section 81) requires preapproval by the Secretary of the Interior for any agreement or contract that “encumbers” tribal land. NBC’s limited recourse loan is secured by a pledge of revenue to the lender. But because the lender’s right to collect pledged revenues does not deprive the tribe of its exclusive proprietary control of its land, the loan agreements do not encumber tribal land for purposes of Section 81.

Under the broad language of the loan agreements, the lender may execute upon future revenues and rents whether or not the facilities are used as a casino. Additionally, merger does not preclude the lender from executing upon assets pledged as security for the loan. And, consistent with our Supreme Court’s decision in a prior appeal between the lender and NBC, the state court has subject matter jurisdiction to adjudicate the lender’s right to enforce its judgment.

The loan agreement provides for attorney fees to the prevailing party. Because the lender is the prevailing party, it is entitled, to attorney fees on appeal.

Briefs:

Washington COA Decision in Comenout v. Washington State Liquor Control Board

August 9, 2016Matthew L.M. Fletcher

Here.

An excerpt:

In State v. Comenout, our Supreme Court upheld the State’s exercise of nonconsensual criminal jurisdiction over tribal members selling unstamped cigarettes from an unlicensed store located on trust allotment property lying outside the borders of an Indian reservation. Edward Comenout challenges that decision in this administrative forfeiture action appeal arising out of the same seized cigarettes at issue in Comenout. He claims Comenout is not binding because the case was remanded and ultimately dismissed. But we are bound by that decision unless and until the Washington Supreme Court or the United States Supreme Court rules otherwise. Neither court has done so. And under Comenout, it is clear the State court had personal and subject matter jurisdiction in this administrative forfeiture action and that Comenout is not exempt from the State’s cigarette tax as an “Indian retailer.” Because Comenout fails to establish any error of law or arbitrary and capricious action under the Administrative Procedure Act2 (APA) standards, we affirm

Washington Appellate Court Decides that Former Nooksack Employee Entitled to Unemployment Benefits

June 22, 2016June 22, 2016Matthew L.M. Fletcher

Here is the opinion in Rapada v. Nooksack Indian Tribe (Wash. Ct. App. — Div. 1).

An excerpt:

Nadene Rapada was the accounting director for the Nooksack Indian Tribe (NIT). NIT terminated Rapada for processing a mileage reimbursement request without first having the request approved as required by NIT’s written accounting policy. Rapada did not dispute that she violated NIT’s official policy. She argued that after-the-fact approval was common practice at NIT and following that practice, rather than the official policy, was a good faith error in judgment.

The Employment Security Department (ESD) initially decided that Rapada was eligible for unemployment benefits. On NIT’s appeal of this decision, the ESD commissioner reversed concluding that Rapada was discharged for misconduct that amounted to wanton disregard of the employer’s interest and was thus ineligible for unemployment benefits. Rapada appealed to the superior court which reversed the commissioner’s decision.

We also conclude the commissioner erred and affirm the superior court.

Washington COA Affirms Revocation of Colville Resident’s State Tobacco Wholesaler Certification

February 11, 2015Matthew L.M. Fletcher

Here are the materials in Matheson v. State Dept. of Revenue (Wash. App.):

D2 45485-8-II Unpublished Opinion

And the briefs:

454858-Appellant’s Brief

454858-Reply Brief

454858-Respondent’s Brief

Active Efforts Case Out of Washington Court of Appeals

August 28, 2014Kate Fort

Here.

Despite Louch’s argument that visitation is a remedial service under ICWA, that term is not defined in the federal or state version of ICWA. Louch cites no state or federal case holding that visitation itself is a remedial service for purposes of ICWA. Visitation as part of a parenting class or other therapy might be part of a remedial service, but consistent with T.H., visitation in and of itself is not “remedial.”
Finally, even assuming visitation is a remedial service, “ICWA does not require the State to continue making active efforts to remedy parental deficiencies at the expense of physical or emotional damage to the child.”43 Numerous courts have held that active efforts under the federal ICWA does not mean persisting with futile efforts.44

***

He also claims that, due to his severe mistrust of the child welfare system, the Department was required to “determine a different approach” to working with him in order to engage him in services.48 But services were coordinated through the Nooksack Indian Tribe, and Louch cites no authority supporting his argument that the Department did not engage in active efforts by failing to provide access to the specific cultural activities referenced above.4

According to the opinion, the child in this case was placed with an American Indian family who are also taking care of her two other siblings.

Wash. SCT Decides Outsource Servs. Mgmt. v. Nooksack Bus. Corp.

August 21, 2014Matthew L.M. Fletcher

Here is the opinion.

An excerpt:

Washington State courts have jurisdiction over civil cases arising on Indian reservations as long as it does not infringe on the sovereignty of the tribe. At issue in this case is whether Washington State courts have jurisdiction over a civil case arising out of a contract in which the tribal corporation waived its sovereign immunity and consented to jurisdiction in Washington State courts. We hold that it does not infringe on the sovereignty of the tribe to honor its own corporation’s decision to enter into a contract providing for jurisdiction in Washington State courts.

Briefs and other materials here.

Washington Appellate Briefs in Yakama Member’s Challenge to State Court Jurisdiction over Crime on Quinault Land

August 5, 2014January 23, 2015Matthew L.M. Fletcher1 Comment

Here are the briefs in State v. Shale (Wash. App.):

446545-Appellant’s Brief

446545-Respondent’s Brief

UPDATE (additional briefs):

Appellant’s Supplemental Brief

State’s Response to Appellant’s Supplemental Brief

Appellant’s Supplemental Reply Brief

Prosecuting Attorneys Amicus Brief

Appellant’s Response to Amicus

WAPA Supplemental Brief

Washington AG Amicus Brief

Washington COA Interprets 25 U.S.C. § 410; Protects Indian Trust Fund from Garnishment

June 4, 2014Matthew L.M. Fletcher1 Comment

Here are the materials in First Citizens Bank & Trust Co. v. Harrison (Wash. App.):

437511 Reply Appellant Cross Respondent

437511 Reply Respondent Cross Appellant

D2 43451-2-II Published Opinion

An excerpt:

25 U.S. C. § 410 provides that money accruing from any lease of Indian land the United States holds in trust for a Native American is not liable for the payment of any debt or claim against that Native American. The issue here is whether the statute applies when lease payments from Indian trust land are distributed to a Native American and placed in a private bank account.