Tag Archives: Tribal Law

Indian Child Welfare Act: Supreme Court Rules in Favor of Pre-Existing Family Doctrine

The U.S. Supreme Court issued a new opinion on the Indian Child Welfare Act (“ICWA”) last month.  The Court held that ICWA did not apply in cases where the Indian parent had no existing relationship with the child, other than biological.  Adoptive Couple v. Baby Girl, June 25, 2013, S. Ct. 12-399

Those of us who believe that orphaned Indian children, like the baby girl here, should be treated just like any other orphaned child, will be heartened by the decision.  Those of us who believe that all orphaned Indian children should be sent to the Reservation, regardless of how tenuous their ties to the Reservation may be, will be chastened by the decision.

I personally fall into the former category.  Most of my Indian Child Welfare Act clients are non-tribal members attempting to gain custody of infants who may be Indian by virtue of their blood line, but who have never had any contact with the Reservation or their Indian parent(s).  In my view, if an infant is thriving in a stable, loving home she should be allowed to stay there, regardless of any Indian ancestry.  This case will help those clients.

The case pitted a prospective adoptive couple against an Indian father.  I happen to know something about the prospective couple because I met the mother when I was giving a presentation on ICWA in Washington DC last year.  They appeared to be ideal parents.  They both had stable jobs, Ph.Ds, (I’m pretty sure they were both psychologists) and seemed like excellent parents.

In addition, per the Supreme Court, the prospective adoptive parents provided financial and emotional support to the mother during and after her pregnancy.  The father even cut the umbilical cord in the delivery room at the hospital.  They also let the mother have contact with Baby Girl after she was born.

The biological father, on the other hand, was a deadbeat.  The Supreme Court found the following facts about him.

  • He provided absolutely no financial or emotional support to the mother during or after her pregnancy, even though he had the means to do so;
  • He never saw the child or had any contact with her;
  • While pregnant, the mother sent him a text message asking if he would prefer to pay child support or to relinquish his parental rights.  His return text message: relinquish parental rights;
  • After the child was born, he signed papers indicating he was “not contesting the adoption;”
  • He did not allow Baby girl any contact with the prospective adoptive parents after she was delivered to him.

However, when push came to shove, the father contested the adoption in state court.  The state court, South Carolina, denied the adoption petition and awarded custody of the child to the father.  The South Carolina Supreme Court affirmed.

Thus, at the age of 27 months, Baby Girl was removed from the only home she ever had and placed with a complete stranger.

The U.S. Supreme Court reversed and remanded.  Now the South Carolina Court will have to determine if, based on state law, the child should be removed from her current home and returned to her previous home.


Young v. Fitzpatrick, 11-1485 (Cert. Petition Denied)

The Supreme Court denied my cert. petition June 24, 2013. One way to look at this, of course, is four years of work down the drain. But that isn’t how I look at it.

I gained invaluable insight and experience. I know how to bring a civil rights and/or excessive force claim and have learned many of the nuances of qualified immunity and individual v. official capacity suits.

Based on this work, I have been receiving phone calls from potential clients around the region. At least twice in the past year, potential clients from different parts of the state have called me regarding off-reservation criminal arrests by tribal police.

A few choice samples:

  • Murder. From an attorney in Oregon: Client, a non-tribal member, was driving through the Reservation in the passenger seat. Tribal cop pulled the car over, asked the driver, also a non-member, for his driver’s license. Driver complied. Cop went back to his squad car and ran the license. Cop walked back to the driver and shot him in the head. Killed him.
  • Accidental Death. From an attorney in Seattle: (Attorney represents the estate). Client, a tribal member, went to a sweat lodge, run by another tribe. Tribal member overheated, had a heart attack, and died.
  • False Arrest. From two or three recent potential clients:
  1. Scenario A. Potential client was buying gas miles from the Reservation, or otherwise minding his own business, when a tribal police officer arrested him for something or another.
  2. Scenario B. Potential client was on fee land within the exterior boundaries of the Reservation. Arrested by tribal police officers. Taken by the same officers to the local county jail.

The solution to all of these cases lies in the same legal framework that I developed in my Supreme Court case. It was not four years down the drain. It was an investment.

Young v. Fitzpatrick, 11-1485 (Facts)

The Puyallup Tribal Police Killed My Client When He Wandered Unwittingly onto the Reservation

One evening in the spring of 2007, Dr. Jeffrey Young wandered onto the Puyallup Reservation, unarmed, harmless, obese and seeking help.  He was then killed by three Tribal Police Officers.

The officers were trained and certified by the State of Washington.  They were cross commissioned by the City of Fife, the City of Tacoma, and Pierce County.  They were armed and provisioned by the United States.

Dr. Young was not in his right state of mind.  He went to the tribal health clinic and told them he was a doctor and needed to see his patients.  The residential assistant did not recognize him and did not let him in.

The RA then called the security guard.  Dr. Young called the RA the anti-Christ.  He then called the security guard the anti-Christ and asked him for protection from the RA.

The RA called the police.  Three police officers arrived.  They did not consider the situation an emergency, so they did not turn on their lights or their dash-cams.  The officers then engaged Dr. Young in conversation.

Dr. Young wandered off.  The officers called him back.  One officer then kicked Dr. Young’s feet out from under him so that he fell face down on pavement.  The officers then proceeded to pigpile, handcuff, and ankle cuff him.  They also tasered him three or four times.

After completing their handiwork, the officers stood up and began to recollect themselves.  Meanwhile, a fourth officer arrived and noticed that Dr. Young’s lips were blue.  The officers began CPR and called the medics.

It was too late.  Dr. Young was pronounced dead approximately half an hour later.  The Pierce County coroner determined that the cause of death was excited delirium.

My pathologist determined that Dr. Young died of a hypoxia-induced cardiac dysrhythmia.  The hypoxia was caused by the weight of the officers sitting on his back and the fact that the officers left Dr. Young on his belly.

My police expert determined that the officers used excessive force.

For further information on Young v. Fitzpatrick, see Supreme Court website at:  http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-1485.htm

For the Supreme Court supplemental briefing on my case, see: http://yalelewislaw.com/files/YoungSuppBriefPetit03Jun2013.pdf

For the Young v. Duenas Court of Appeals of the State of Washington, Division One, published Opinion, see: http://yalelewislaw.com/files/YoungWAApellCrtIPublishedOpinion.pdf


Young v. Fitzpatrick, 11-1485 (Legal Issues)

My Case Is Focused on Sovereign Immunity and the Civil Rights Act

The legal issues in dispute in this case center on tribal sovereign immunity and the Civil Rights Act of 1866, as amended.

Sovereign Immunity

As I have written on my website, sovereign immunity is the last vestige of the divine right of kings. Back in the day, the king could do no harm and therefore could not be sued.

In England, the sovereign’s power was never as absolute as it was in France and elsewhere in the continent. In addition, it was diminished by the Magna Carta and the gradual expansion of the powers of parliament. Nonetheless, the English colonists brought the principle with them to the new world and bequeathed it to the American Indian tribes.

In modern times, the sovereign immunity of the federal government has been mostly waived by the Federal Tort Claims Act. The various states have similarly waived their sovereign immunity in most circumstances.

The Puyallup Indian tribe has, in theory, waived its sovereign immunity for certain tort claims, but the waiver is quite limited and does not include civil rights claim. The waiver is only effective in tribal court. Even if the waiver did include civil rights claims, per federal law, tribal court lacks jurisdiction to hear them.

Thus, I chose to sue in state court. I named the individual police officers in their individual capacity as the defendants. I very carefully did not name the tribe. The tribe has sovereign immunity. Whether the individual officers partake in that sovereign immunity is in dispute.

My legal theory is that they do not. An individual capacity suit goes against the individual. Any judgment would go against his or her assets. The individual’s employer’s assets would be off the table. I am not suing the employer.
The police officer’s legal theory, on the other hand, is that they and the employers are one. So long as the police officers were working in their official capacity, within the scope of their employment, they enjoy qualified immunity, which is derivative of the Tribe’s sovereign immunity.

Civil Rights Act of 1866

Congress promulgated the Civil Rights Act of 1866 to protect freed black slaves from sheriffs and other state law enforcement officers who were lynching and otherwise abusing them immediately after the civil war. The magic phrase, as amended, regarding who is subject to the law is “color of state law,” as follows:

[A]ny person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights … shall be liable to the party injured.

An Indian tribe is neither a state nor a territory. Thus, the Civil Rights Act does not ordinarily apply to an Indian tribe or their agents. Someone who is injured by tribal government ordinarily has no recourse under federal law.

The exception, of course, is when the Indian agent is operating under the color of state law. My theory is that the tribal police officers were acting under the color of state law because they were trained and certified by the Washington State Criminal Justice Training Commission. In addition, they were cross commissioned by the City of Fife, City of Tacoma, and Pierce County.

The police officer’s theory, on the other hand, is that certification, training, and cross commissioning have no legal significance and don’t constitute “color of state law.” Moreover, the police officers were acting solely within the scope of their retained inherent authority. Whatever state-based authority they had, they were not using it.

For further information on Young v. Fitzpatrick, see Supreme Court website at:  http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-1485.htm

For the Supreme Court supplemental briefing on my case, see: http://yalelewislaw.com/files/YoungSuppBriefPetit03Jun2013.pdf

For the Young v. Duenas Court of Appeals of the State of Washington, Division One, published Opinion, see: http://yalelewislaw.com/files/YoungWAApellCrtIPublishedOpinion.pdf

Communications Between Trustees for Indian Tribes and Their Attorneys Are Privileged

Indian tribes lost another legal battle at the U.S. Supreme Court recently. In United States v. Jicarilla Apache Nation, docket # 10-382, decided June 13, 2011, the Supremes held that the fiduciary responsibilities the common law imposes on private trustees don’t necessarily apply to the United States’ as statutory trustee for the Indian tribes. Rather, the United States / Indian trust responsibilities are defined by statute.

The ruling is part of a trend. The U.S. Supreme Court has become decidedly hostile to tribal sovereignty in recent years. For example, in the past seven years,
since the Roberts court began, the Supremes have heard five Indian law case. Tribal interests have lost every time. In the last two cases, decided with the two new Obama appointees – Sotomayer and Kagan – on the bench, tribal interests
lost 9 – 0. (I got these statistics from a website called Turtle Talk, which is produced by attorneys and others who advocate for tribal interests).

The latest opinion brings the Robert’s court record to 0 of six.

United States v. Jicarilla Apache focused on the conflict between the attorney / client privilege and a trustee’s duty to his or her ward. Per the attorney / client privilege, communications between the attorney and his/her client are privileged, meaning that whatever a client tells an attorney is kept confidential, unless the client says otherwise. Per the trustee/ward relationship, a trustee has an absolute, fiduciary duty to act in the ward’s best interest, and the ward has an absolute right to know about anything the trustee has done or is doing on the ward’s behalf.

The conflict between these two legal principles arose in the context of the United
States alleged mismanagement of funds earned from the sale of tribal natural resources. Jicarilla Apache filed a breach of trust claim against the United States. During the course of that litigation, the Apaches demanded that the United States produce a number of documents. The United States produced most of
the documents, but refused to produce others, on the grounds of attorney /
client privilege.

The Tribe asserted that the attorney/client privilege did not apply in this case,
because of the fiduciary exception. The fiduciary exception holds that communications between the attorney and the client are not privileged when the client is acting as a fiduciary on behalf of the trust, but are privileged when the client is seeking advice in her/her personal capacity.

Here, the court held that the attorneys for the United States were wearing multiple hats. While they were attempting to help the trustees meet their duties as fiduciaries of the Indian trust accounts, they were also attempting to help the
trustees comply with any number of other duties towards the Indians. Thus,
the common-law rules regarding the trustee/ward relationship did not exist and
the trustees were only required to follow the statute. The relevant statutes did not create a fiduciary exception to the attorney/client privilege.

Tribal Court Has Inherit Authority Over Disputes Arising From Tribal Land

The Ninth Circuit recently affirmed tribal court jurisdiction over a non-member.  Water Wheel Camp Recreational Area and Robert Johnson v. Gary LaRance and Jolene Marshall, 09-17349 & 09-17357 (9th Cir. June 10, 2011). Water Wheel was a corporation that operated a campground and resort on a river bank within the Reservation of the Colorado River Indian Tribe. Johnson, a non-tribal ember, was the owner/operator/and alter ego of the resort. Gary LaRance and Jolene Marshall were tribal court judges.

Water Wheel had a thirty-two year lease on the property. Per the terms of the lease, the base rent was to be re-adjusted at year twenty-five to better reflect market conditions. However, when year twenty-five came around, the parties were unable to agree on a new base rent. Water wheel eventually stopped making the lease payments. When the lease expired, Water Wheel refused to vacate the property.

The tribe then brought an action in tribal court to evict Water Wheel. Water Wheel contested jurisdiction, asserting that the tribal court lacked jurisdiction
under U.S. v. Montana. Montana held that tribal court lacks jurisdiction over non-members unless: 1) the non-member had a consensual relationship with the tribe, or 2) the non-member’s conduct threatens the health and welfare, political integrity, or economic security of the tribe.

Johnson asserted that he did not have a consensual relationship with the Tribe because he did not understand that he, personally, would be dealing with the Tribe when he took over the lease and that he did not consent to tribal court
jurisdiction. However, the Court of Appeals held that Montana did not apply because tribal court jurisdiction rested on the Tribe’s inherent authority to exclude, not on Montana. The court reasoned that Montana and progeny, with one narrow exception, involved disputes between non-members and the Tribe arising from activity on non-tribal land within the Reservation. This dispute arose from activity on tribal land within the Reservation.  Therefore, Montana did not apply. Tribal court jurisdiction flowed from its power to exclude and its inherent sovereignty over tribal land.

All Affiliated Tribes Must Receive Notice Before Termination of Parental Rights

The Court of Appeals, Division II, In Re: ADB-L & LNB-L; JB-L.& KL v. DSHS, dkt No. 38850-2 held recently that the notice requirements of state law were more expansive than those of the U.S. Indian Child Welfare Act (“ICWA”).

ICWA is designed to prevent the break-up of the Indian family.  It applies to a proceeding to terminate parental rights to an Indian child, where the child is enrolled, or eligible for enrollment, in a federally recognized Indian tribe.

Per ICWA, the party seeking to terminate parental rights must notify the child’s tribe.  State law is broader.  The dependency statute requires the party seeking termination to provide notice to all tribes the petitioner has reason to know may be affiliated with the child.

Here, the party seeking termination of parental rights was the State of Washington, Department of Social and Health Services (“DSHS”).  DSHS sent notice to the Nooksack tribe, where one of the children was enrolled and the other was enrollable.  However, it did not send notice to three other tribes that may have some kind of affiliation with the children.

The mother, who was enrolled Nooksack, was also enrolled in the Squamish Nation out of Canada.  The Father claimed Cherokee and Blackfoot ancestry, though he was not enrolled in either of those tribes.

The Court of Appeals held that the Squamish, Cherokee, and Blackfoot tribes should have been notified of the termination proceedings.  Otherwise, the appellate court affirmed the trial court’s ruling terminating parental rights.

To address the notice issue, the Court of Appeals instructed the trial court to ensure that DSHS provided the requisite notice.  If one or more of the three tribes then chose to intervene, the trial court would have to re-open the proceedings.  On the other hand, if each of the three tribes chose not to intervene, the termination orders would stand.