This is a very long decision, but the court’s discussion of appealability of the order is an interesting one.
Here are the materials in Ho-Chunk Inc. v. Sessions (D.D.C.):
Plaintiffs, tribal-owned corporations engaged in the distribution of cigarettes, seek a declaration clarifying whether certain recordkeeping requirements of the Contraband Cigarettes Trafficking Act apply to Indian tribal entities like them. The Court concludes that the relevant requirements do so apply, and will therefore grant summary judgment for Defendants.
On average we receive around a case a day out of California that mentions ICWA, and usually in the notice context. We don’t post all of them, and the vast majority of them are unpublished. But over the last couple of days, we’ve received two that demonstrate the large inconsistencies across the state when it comes to determining if the child is an Indian child, and notice procedures. Neither of these cases are outliers from the hundreds that go up each year, other than the difference in treatment caught our eye. This also demonstrates the difficulty in identifying exactly where additional resources need to be dedicated to ICWA enforcement–it’s not on a fifty state level, it’s on a county-by-county level.
In the first, out of the First Appellate District (Del Norte County) mother says her grandma told her their family may be from the “Comanche Nation.” Notice went out to Comanche, and the Nation said the child was not eligible for enrollment. However, on appeal, the court found
As noted, the only information the Department provided for the maternal grandmother—Nina’s mother—was her name and an incomplete address (“Grant’s Pass,Oregon”). The record contains evidence,however, suggesting that with a minimal amount of inquiry, the Department would have been able to obtain additional information regarding the grandmother. First, the family was involved in a dependency proceeding when Nina was a minor. By its own admission, the Department reviewed that file as part of the instant proceeding and, at a very minimum, would have been able to glean the grandmother’s date of birth, which was unquestionably in the file. This directly refutes the Department’s claim that “there is no indication that the social worker left out any available information.”
It was incumbent upon the Department to interview her extended family members to obtain whatever further details it could about the family’s Native American heritage.
In the second case, out of the Fourth Appellate District (San Diego County), mother said her family was affiliated with the “Winnebago Sioux tribe in Decorah, Iowa.” The social worker talked to mother and grandmother about it, and found “no one in the family ever lived on a reservation, attended an Indian school, participated in Indian ceremonies or received services from an Indian health clinic.” The court found
We conclude that proper inquiry was conducted to determine whether K.P. was a Native American child within the meaning for ICWA. The court questioned mother and her mother concerning the family’s Native American heritage. According to these relatives, no family members had ever been registered or eligible for enrollment with a tribe and the court was not required to give notice.
In both cases, the claims were attenuated. But regardless, the claims received very different treatment between the two trial courts–in the first, where the Department did not do enough inquiry, notice at least went out to the Comanche Nation. In the second, no one notified Winnebago (nor Ho-Chunk, for that matter), nor allowed either Nation to determine whether this family might be related. And then on appeal, both received very different treatment from the appellate courts. In the first, the court had to do better notice. In the second, the court didn’t have to do any notice.
Here is the complaint in United States v. $400,000 (W.D. N.Y.):
During the investigation, it was determined that the parties involved in the shipping of the contraband cigarettes in interstate commerce also filed false information to the appropriate taxation authorities as required under the Jenkins Act, Title 15, United States Code, Sections 375-378. All cigarette sales made by a stamping agent are required by New York State law to be recorded on a form known as Form CG which had to be sent on a monthly basis to the NYSDT in Albany, New York, with a certificate that the information contained therein was true and correct.
During the time period of September 24, 2012 – January 14, 2013, AARON PIERCE through his corporation, AJ’s Wholesale LLC (“hereafter “AJ’s”) sold 403,413 cartons of cigarettes in a manner designed to make it look on paper as though the untaxed cigarettes were legitimately obtained through Ho-Chunk, Inc. (“HCID”) a tribal cigarette and tobacco distributor, a corporation operated by the Winnebago Tribe of Nebraska, as well as other Native American cigarette and tobacco suppliers.
Ho-Chunk, Inc. is the parent company of HCI Logistics (HCIL) which is a commercial transportation company that HCID would use to transport product from the HCID warehouse in Winnebago, Nebraska. Neither HCID nor HCIL are licensed tobacco wholesalers or state stamping agents in Nebraska or New York State.
Attention – Attorney Position Open
Legal Aid of Nebraska, a law firm providing free civil legal services to low-income persons, seeks an attorney to serve Native American victims of domestic violence in Western Nebraska. Must be admitted to practice in Nebraska or have a Nebraska license pending, and be licensed or willing to become licensed in the Ponca, Winnebago, Omaha and Santee Tribal Courts. This position entails extensive travel throughout panhandle and Cherry counties. Duties will include but will not be limited to: provide assistance to members of the Omaha, Ponca, Santee, and Winnebago and to other Native Americans who are victims of domestic violence primarily residing in the panhandle and Cherry counties. This position entails providing training to law enforcement; making community presentations; conducting outreach to Native American victims of domestic violence; developing culturally appropriate materials providing legal information and information about Legal Aid of Nebraska’s Native American Project and domestic violence; fostering relationships with the Tribes, tribal members, domestic violence agencies and other service providers. The attorney in this position also provides quality and aggressive representation of low-income Native American domestic violence victims who are clients of LAN primarily in state court, and, engages in the day-to-day practice of law according to the priorities and practices set by Legal Aid of Nebraska. Ideal candidate will possess expertise in the area of domestic violence and demonstrate skill in tribal court practice or connection to Native American issues. This is a full-time position requiring a committed individual. Company cell phone and laptop will be provided. Location in Scottsbluff, Nebraska.
Legal Aid of Nebraska offers excellent supervision, training and support, and state-of-the-art technology. Loan assistance repayment may be available assuming eligibility for Legal Aid’s repayment program. Experience-based competitive salary. Excellent benefits package. Please send resume, references, writing sample and cover letter via email to: Muirne Heaney, Legal Aid of Nebraska, Interim Director of Litigation and Advocacy, at firstname.lastname@example.org. EOE. Position open until filled.
Interim Executive Director