Here is the order list from last Friday.
Here are the cert stage materials in Upper Skagit Indian Tribe v. Lundgren.
Lower court materials here.
Washington Supreme Court
Upper Skagit Cert Petition in In Rem Tribal Immunity Matter
Here is the petition in Upper Skagit Indian Tribe v. Lundgren:
Question presented:
Does a court’s exercise of in rem jurisdiction overcome the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it?
Lower court materials here.
UPDATE:
Cert Petition in Washington State Dept. of Licensing v. Cougar Den Inc.
Here:
Questions presented:
Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways.
Lower court materials here.
UPDATE (8/23/17):
UPDATE (9/6/17):
Washington SCT Rules 7-2 in Favor of Treaty Right to Travel
Split Washington SCT Decides Rule 19/Tribal Immunity in In Rem Jurisdiction Matter
Here is the 5-4 opinion in Lundgren v. Upper Skagit Indian Tribe.
Briefs:
Tulalip Member/Company Seek Mandamus to Bar Searches by Fish and Wildlife Officers
Here is the petition in Paul v. Gain (Wash. S. Ct.):
An excerpt:
The novel twist in this case is the “gag order” in the Search Warrant. Because recipients of the Search Warrants risk violating a court order if they disclose the Search Warrants, their silence is secured. The Order sealing in perpetuity the Search Warrants Files guarantees that no public scrutiny can ever occur. The “gag-order” and the Order, in combination, create a Star Chamber within which law enforcement officers can operate without accountability, to the extreme detriment of their targets and the public, who may never know who invades their personal affairs, or why. This is particularly true here where Petitioners have already successfully sued the law enforcement agency to secure return of personal property seized via an earlier search warrant arising from the same investigation.
Washington SCT Rules in Favor of Tribe in Gray Harbor Oil Terminal Dispute
Here is the opinion in Quinault Indian Nation v. Imperium Terminal Services LLC.
An excerpt:
Two companies applied for permits to expand their oil terminals on the shores of Grays Harbor. The expansion would facilitate the storage of additional fuel products, which would arrive by train or truck and depart by oceanbound ship. The issue here is whether the Ocean Resources Management Act (ORMA), chapter 43.143 RCW, applies to these expansion projects. The Shoreline Hearings Board (Board) and the Court of Appeals held that ORMA does not apply to these projects based on limited definitions in the Department of Ecology’s (DOE) ORMA implementation regulations. We hold that this interpretation improperly restricts ORMA, which was enacted to broadly protect against the environmental dangers of oil and other fossil fuels. The pmties also contest whether these projects qualify as “ocean uses” or “transportation” under DOE’s regulations. We hold that these projects qualify as both ocean uses and transportation. Finally, though not discussed by the parties or the Court of Appeals, these projects qualify as “coastal uses” under DOE’s regulations. Accordingly, we reverse the Court of Appeals and remand for further review under ORMA’s provisions.Â
Washington Supreme Court Explicitly Rejects Existing Indian Family Exception
In only the third Washington Supreme Court case to directly interpret ICWA and the first to interpret WICWA, the Court holds In re Crews (the case that established EIF in Washington) is overturned.
Under our above interpretation of ICWA and WICWA, if a case (1) meets the definition of a “child custody proceeding” and (2) involves an Indian child, both acts shall apply. ICWA and WICWA recognize only two exceptions to coverage–delinquency
proceedings and custody disputes following divorce where one parent retains custody of the Indian child. Our interpretation therefore overrules Crews to the extent that it embraced the existing Indian family exception because it recognizes no additional exceptions to coverage outside of the two expressly stated in ICWA and WICWA.
ICWA and WICWA also apply based on the child’s membership, not the parent’s:
For these reasons, we hold that whether the parent whose rights are being terminated is non-Indian is immaterial to a finding that ICWA and WICWA apply. If the child at issue is an Indian child and that child is involved in a child custody proceeding, ICWA and WICWA shall apply.
Craig Dorsay represented the tribal amicus brief (including oral arguments), and NARF and Indian Law Clinic at MSU Law provided strategy and research support in this case. Previous coverage here.
Washington Supreme Court Ruling in Hirst Protects Instream Flows
In this much anticipated opinion, the Washington Supreme Court has ruled that, in violation of state law, Whatcom County did not ensure the existence of adequate water supplies before issuing building permits. The case will protect stream flows from the “death by a thousand cuts” impact of small wells. Many Washington tribes have sought to protect stream flows from these so-called exempt wells. The opinion is here.
Two Recent State Supreme Court Oral ICWA Arguments
Here is the argument for In re B.B. case in the Utah Supreme Court, where the unmarried Native father appealed the trial court’s decision denying him intervention in a voluntary adoption case, primarily based on Utah’s definition of paternity. Father is asking the state to interpret “acknowledge and establish” under ICWA broadly. The Utah Court of Appeals sent it on directly to the Supreme Court with no decision.
Here is the argument for In re T.A.W. in the Washington Supreme Court, addressing the issue of applying WICWA to step-parent adoption proceedings, particularly the requirement of active efforts. Here is the decision being appealed.
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