Tag Archives: tribal member

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.

Custody Dispute Between Parent & Indian Custodian

A recent case from division one, Custody of CCM, gives me the unique opportunity to blog my own case. I represented the appellants in this case. We won. CCM pitted a non-Indian father against the Indian grandparents. I had the grandparents. Thus, the facts lay in the intersection between two sometimes contradictory statutes: the U.S. Indian Child Welfare Act and Washington’s third-party custody statute. The case raised several issues: 1) Notice to the child’s Indian tribe, 2) Cure for defective notice, 3) The standard for determining where to place the child, and 4) Child support. We won on three of the four issues. In terms of notice, the court held that ICWA requires that the child’s Indian tribe needs formal notice of any custody proceeding regarding the child. Formal notice means certified mail, return receipt requested, to the proper tribal authority. If the notice is defective in any way, the Tribe gets a new trial. In terms of the placement standard, in a custody dispute between two parents, the state-law standard is best interest of the child. However, in a custody dispute between a parent and a non-parent, the standard for placing with the non-parent is much higher. The child is placed with the parent unless 1) the parent is unfit or 2) moving the child from the non-parent to the parent would cause the child actual detriment to his health and well-being. I argued that this standard didn’t apply to the grandparents because they were the Indian custodians. Since ICWA treats parents and Indian custodians the same, the standard should be the same – best interest. I still think it is a good argument, but it lost. The court held that, where federal law – ICWA – treats the parties the same, the standard for which party gets the child is the state law standard.