Here the materials so far in this pending case:
Washington Court of Appeals
Washington COA Reverses Child Custody Determination Favoring Indian Parent
Here is the unpublished opinion in In re Parentage of Harker.
An excerpt:
For several reasons, we agree that the trial court placed undue emphasis on a single portion of the child’s multi-cultural heritage. First, although factor (v) required the trial court to consider the child’s significant relationships with others, his physical surroundings, his school, and “other significant activities,” see RCW 26.09.187(3)(a)(v), in promulgating this statutory factor, the legislature did not require the trial court to consider the child’s cultural heritage. Instead, RCW 26.09.184(3) provides that the trial court “may consider the cultural heritage and religious
beliefs of a child.” (Emphasis added.) That the legislature “allows,” rather than “requires” trial courts to consider cultural heritage suggests that the legislature did not intend for cultural heritage, though important, to be a determining factor in a child’s residential placement.Second, although Harker mentioned his Native American heritage and his desire to involve his son in that culture, it was the trial court, rather than Harker, that developed the vast majority of evidence related to this cultural heritage. In addition to developing the cultural heritage component of pro se Harker’s case for him, the trial court then ignored the non-determinative nature of this factor when it expressly found that Harker would promote the child’s cultural
awareness and that this fact “weigh[ed] very heavily” in favor of making Harker the primary residential parent. III VRP at 315. Furthermore, in so ruling, the trial court ignored the lack of evidence that Arviso would interfere with Harker’s involving their child with his Native American culture. Nor did the trial court expressly consider the child’s potential involvement with Arviso’s Hispanic culture.
Insurance Company Not Obligated to Reimburse Tacoma for Cushman Dam Settlement with Skokomish Tribe
Here is the unpublished opinion in Indemnity Ins. Co. of North America v. City of Tacoma (link) (Indemnity Insurance v City of Tacoma).
Washington Appellate Court Affirms Conviction of Spokane Indian under PL280
Here is the opinion in State v. Abrahamson.
An excerpt:
Under RCW 37.12.010, the State of Washington assumed criminal and civil jurisdiction over Indians on Indian lands for eight specific areas of law, including the “[o]peration of motor vehicles upon the public streets, alleys, roads and highways.” RCW 37.12.010(8). As amember of the Spokane Indian Tribe, Manuel S. Abrahamson asserts the state court did not have jurisdiction to convict him of the crimes of drivingwhile under the influence, attempting to elude, and driving while license revoked, committed on the Tulalip Indian Reservation. Abrahamson claims the State’s assumption of jurisdiction over Indians on an Indian reservationfor the operation of motor vehicles does not apply to criminal offenses. We disagree. We hold that under the plain and unambiguous language of RCW37.12.010 the State assumed jurisdiction over all criminal offenses committedby Indians while operating a motor vehicle on public roads on an Indian reservation, and affirm.
Washington Appellate Court Affirms Termination of Nooksack Parent’s Rights
Here is the opinion in In re LNB-L.
Of note, the court affirmed that the State’s qualified Indian expert witness was qualified, despite the fact that she could not describe the traditional Nooksack family unit, on grounds that the tribe had passed a resolution stating she was qualified.
Washington COA Holds State Has No Criminal Jurisdiction over Off-Reservation Treaty Fishing Areas
Here is the opinion in State v. Jim.
An excerpt:
Lester R. Jim, an enrolled member of the Yakama Nation, appeals a superior court decision reversing the district court’s dismissal of his fishing citations for lack of jurisdiction over the Maryhill Treaty Fishing Access Site (MTFAS). This court granted Mr. Jim discretionary review. We reverse the superior court because the State of Washington lacks jurisdiction to cite Mr. Jim at the MTFAS.
Washington Court Reverses Conviction of Non-Indian Who Fished Under Tribal Law
Interesting case. Here is the opinion in State of Washington v. Guidry, a split court (2-1). Here are links to the briefs:
An excerpt:
Larry Guidry appeals his convictions for first degree fish dealing without a license, first degree fish trafficking without a license, four counts of participation of a non-Indian in an Indian fishery for commercial purposes, and four counts of first degree commercial fishing without a license. He argues that the trial court should have dismissed the charges against him because he lawfully fished under the Nisqually Tribal Code. He also argues that insufficient evidence supports his convictions for fish dealing and fish trafficking and that the trial court erred in imposing restitution. We reverse his convictions, vacate the restitution order, and remand.
Washington Appellate Court Rejects Tribal Immunity in Land Case
Here is the opinion in Smale v. NORTEP, a Washington Court of Appeals (Div. 1) case involving the Stillaguamish Tribe. Here is an excerpt:
The Smales sought to quiet title to property they claimed they had acquired through adverse possession and named Noretep, the original non-Indian owners, as defendants. After the Smales sued, Noretep deeded the disputed property to the Stillaguamish Tribe of Indians (the Tribe), and the Smales named the Tribe as a defendant. In its unsuccessful motion to dismiss, the Tribe claimed that tribal sovereign immunity deprived the superior court of subject matter jurisdiction. Because courts exercise in rem jurisdiction over the property subject to quiet title actions, our Supreme Court has held that transferring the disputed property to a tribal sovereign does not bar the continued exercise of subject matter jurisdiction over the property. Accordingly, we hold that the superior court’s continuing jurisdiction over the land claimed by the Smales for the purposes of determining ownership does not offend the Tribe’s sovereignty.
Washington Court of Appeals Sets Evidentiary Burden for Indian Grandparents
Here is the Washington Court of Appeals (Div. 1) decision in In re Custody of C.C.M. An excerpt:
The Mecums also claim both that ICWA requires C.C.M. to be placed according to her “best interests,” and that the standards set forth in ICWA, rather than state law, govern this dispute. The Mecums contend that because Mr. Mecum is C.C.M.’s Indian custodian, he has an equal right to custody of C.C.M. under ICWA as does Pomiak. We disagree. …
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However, ICWA itself provides a solution to this problem. The Act mandates that when either a state or a federal law affords greater protection for either a parent or a custodian, the more protective law shall apply. 25 U.S.C. § 1921. Here, Washington law accords a clear preference for parental custody. Accordingly, we hold that state law, not ICWA, supplies the substantive legal standards governing this nonparental custody dispute between an Indian custodian and a parent. In addition, because a parent’s interests in the custody and care of his or her children at stake in a nonparental custody action under chapter 26.10 RCW are equivalent to those implicated in termination and dependency proceedings, we hold that the Mecums must make their case by clear and convincing evidence.
Boomer v. Tulalip Tribes — Tribal Sovereign Immunity
In Boomer v. Tulalip Tribes, the Washington Court of Appeals affirmed the dismissal of a slip-and-fall tort action against a tribe on the grounds of sovereign immunity. The court rejected the so-called Dry Creek Lodge exception, as well. The Tulalip Tort Claims Act waives tribal immunity for such claims in tribal court.
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