April

Ogden v. Iowa Tribe of Kansas and Nebraska
2008 WL 1860167, Docket No. WD 67912
Missouri Court of Appeals, Western District, April 29, 2008

Subjects: Sovereign immunity -- Iowa Tribe of Kansas and Nebraska ; Employees, Dismissal of -- Iowa Tribe of Kansas and Nebraska; Labor contracts -- Iowa Tribe of Kansas and Nebraska; Indian business enterprises -- Iowa Tribe of Kansas and Nebraska.

*Synopsis: (from the opinion) Larry Ogden, after communication with the tribal chairman of the “Iowa Tribe Executive Committee,” moved to Missouri to accept employment as manager of a truck stop near I-29 in Holt County, Missouri, known as the “Squaw Creek Eagles Nest Plaza.” Several months later, Ogden was terminated from employment. Ogden sued the “Iowa Tribe of Kansas and Nebraska” (“Iowa Tribe”) for breach of an employment agreement and for wrongful discharge. The Iowa Tribe filed a motion to dismiss the petition based upon tribal sovereign immunity.

*Holding: not yet available

State ex rel. Suthers v. Cash Advance and Preferred Cash Loans
2008 WL 1745824, Docket No. 07CA0582
Colorado Court of Appeals, Div. II, April 17, 2008

Subjects: Internet business enterprises; Jurisdiction -- Colorado; Indian business enterprises; Offices -- Location; Santee Sioux Nation, Nebraska; Miami Nation of Oklahoma.

*Synopsis: (from the opinion) We conclude the record supports the trial court's determination that Cash Advance and Preferred Cash were doing business in Colorado, and not on tribal property. This finding is significant, because it indicates that Cash Advance and Preferred Cash are subject to at least some forms of regulation by the State of Colorado, even if they are part of an Indian tribe.

*Holding: not yet available

In re Alice M.
74 Cal.Rptr.3d 863, Docket No. H031794
Court of Appeal, Sixth District, California, April 9, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Indian children -- Defined.

*Synopsis: The Superior Court, Monterey County, No. H030449, terminated mother's parental rights. Mother appealed. The Court of Appeal, 2007 WL 467761, reversed. On remand, the Superior Court, Monterey County, No. J40094, Russell D. Scott, J., again terminated parental rights. Mother appealed.

*Holding: The Court of Appeal, Mihara, J., held that:
(1) mother's failure to object did not forfeit argument of improper Indian Child Welfare Act (ICWA) notice;
(2) juvenile court had reason to know that child may be Indian child;
(3) notice requirements, rather than only duty of further inquiry, were triggered;
(4) notices did not comply with statutory requirements;
(5) notices did not substantially comply with ICWA; and
(6) notice to the Bureau of Indian Affairs (BIA) was not adequate substitute for notice to tribes.
Reversed and remanded with directions.

Cornelius v. Kansas Department of Revenue Division of Motor Vehicles
180 P.3d 579, Docket No. 97,466
Court of Appeals of Kansas, April 4, 2008

Subjects: Roadside sobriety tests -- Kansas -- Jackson County; Intergovernmental cooperation -- Prairie Band of Potawatomi Indians, Kansas; Intergovernmental cooperation -- Kansas -- Jackson County; Jurisdiction -- Off Indian reservations -- Prairie Band of Potawatomi Indians, Kansas; Police -- Prairie Band of Potawatomi Indians, Kansas.

*Synopsis: Motorist sought judicial review of suspension of driver's license after he was issued several citations during stop at sobriety checkpoint. The Shawnee District Court, David E. Bruns, J., affirmed, and motorist appealed.

*Holding: The Court of Appeals, Marquardt, J., held that:
(1) corporal for tribal police department did not lack jurisdiction to issue citations to motorist at sobriety checkpoint located outside tribe boundaries, and
(2) corporal had statutory authority to issue traffic citations after he had been deputized by county sheriff.
Affirmed.

March

In re H.B.
74 Cal.Rptr.3d 27, Docket No. B200606
Court of Appeal, Second District, Division 7, California, March 25, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: In child dependency proceeding, the Superior Court, Los Angeles County, Marilyn K. Martinez, Commissioner, terminated mother's parental rights. Mother appealed.

*Holding: The Court of Appeal, Perluss, P.J., held that trial court's error in failing to make required inquiry during child dependency proceeding as to whether child had Indian heritage, as required by Indian Child Welfare Act (ICWA), was harmless.
Affirmed.

In re N.M.
74 Cal.Rptr.3d 138, Docket No. B198837
Court of Appeal, Second District, Division 8, California, March 25, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Family reunification.

*Synopsis: After child protection proceedings were brought, the Superior Court terminated parental rights as to two children. The Court of Appeal, 2006 WL 2556308, ordered a limited reversal of the order of termination for compliance with the Indian Child Welfare Act (ICWA). On remand, the Superior Court, Los Angeles County, No. CK 00574, Steven L. Berman, Juvenile Court Referee, reinstated the termination orders. Parents appealed.

*Holding: The Court of Appeal, Flier, J., held that:
(1) the Superior Court acted in compliance with directive on remand in issuing notice to Indian tribes and in subsequently reinstating order of termination;
(2) the Superior Court was not required to wait for expiration of 60-day period before issuing a finding that the ICWA did not apply to the proceedings; and
(3) father did not raise, for direct appeal, a reviewable claim of ineffective assistance of counsel.
Affirmed.

In re William K.
73 Cal.Rptr.3d 737, Docket No. C055107
Court of Appeal, Third District, California, March 24, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Paternity; Notice (Law).

*Synopsis: While biological father was in prison, county department of social services removed child from custody of mother. At dependency hearing after biological father's release, the Superior Court, Shasta County, No. 26573-01, Monica Marlow, J., found that it would not be in best interest of child to offer reunification services to biological father, adjudged child dependent, found that Indian Child Welfare Act (ICWA) did not apply to child, and adopted reunification plan for mother and presumed father. Biological father appealed.

*Holding: The Court of Appeal, Nicholson, J., held that:
(1) it was not in best interest of child to set aside presumed father's determination of paternity;
(2) biological father did not promptly come forward and demonstrate full commitment to parental responsibilities, for due process purposes; and
(3) biological father's claim of failure to comply with certain ICWA notice requirements was forfeited.
Affirmed.

Primeaux v. Dooley
2008 WL 740400, Docket No. 24516
Supreme Court of South Dakota, March 19, 2008

Subjects: Jury selection; Trials (Murder).

*Synopsis: Petitioner filed second state habeas petition, following appellate affirmance, 328 N.W.2d 256, of his state court conviction of second-degree murder and two counts of aggravated assault and of his sentence of life imprisonment without parole, dismissal of two federal habeas petitions, appellate affirmance, 502 N.W.2d 265, of denial of his first state court habeas petition, and denial of two additional federal habeas petitions. The Circuit Court, First Judicial Circuit, Charles Mix County, denied petition, and petitioner appealed.

*Holding: The Supreme Court, Konenkamp, Justice. held that:
(1) petitioner failed to establish good cause for omission of constitutional challenge to jury selection process from his prior habeas petition, and
(2) disparity between percentage of Native Americans in county population and in jury pool did not amount to unfair and unreasonable underrepresentation of Native Americans in jury pool.
Affirmed.

In re Alejandro A.
Westlaw citation not currently available, Docket No. D051300
Court of Appeal, Fourth District, California, March 14, 2008

Subjects: Indian children -- Defined; Vandalism; Juvenile delinquency; California.

*Synopsis: (from the opinion) Appellant's sole contention is that there is substantial evidence to conclude he may be an Indian child and therefore an inquiry should have been made to determine if he actually was an Indian child before any disposition order was made.

*Holding: not yet available

County of Seneca v. Eristoff
852 N.Y.S.2d 493, Docket No. B200606
Supreme Court, Appellate Division, Third Department, New York, March 6, 2008

Subjects: Indian business enterprises -- Taxation; Non-Indians -- Taxation; Motor fuels -- Taxation; Cigarettes -- Taxation; Tribes -- Commerce -- Taxation -- New York; Seneca County (N.Y.).

*Synopsis: County commenced Article 78 proceeding to compel Commissioner of Taxation and Finance to collect and remit local share of sales and other taxes on cigarettes and motor fuel sold to non-Indians at businesses owned or operated by Indian tribes. The Supreme Court, Albany County, Kavanagh, J., dismissed petition, and county appealed.

*Holding: The Supreme Court, Appellate Division, Rose, J., held that county failed to demonstrate proprietary interest exception to general rule barring suit against state by local governments.
Affirmed.

In re Miracle M.
73 Cal.Rptr.3d 24, Docket Nos. B200319, B200756
Court of Appeal, Second District, California, March 4, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Notice (Law).

*Synopsis: After reports of child abuse occasioned by mother's use of methamphetamine and marijuana, county department of children and family services (DCFS) placed two daughters with paternal aunt. The Superior Court, Los Angeles County, No. BK07648, Deborah L. Losnick, Commissioner, terminated mother's parental rights. Mother appealed.

*Holding: The Court of Appeal, Woods, Acting P.J., held that:
(1) appeal from determination that Indian Child Welfare Act (ICWA) did not apply was waived;
(2) issue of failure to provide ICWA notice was waived; and
(3) any error in failure to provide notice was harmless.
Affirmed in part, reversed in part, and remanded.

February

In re N.E.
73 Cal.Rptr.3d 123, Docket No. G039168
Court of Appeal, Fourth District, Division 3, California, February 29, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: Termination of parental rights proceedings were brought against parents. The Superior Court, Orange County, Gary L. Vincent, J., terminated parental rights. Father appealed.

*Holding: The Court of Appeal, O'Leary, J. held that social worker's failure to ask father if he had Indian heritage did not prejudice father and thus was not grounds for reversal.
Affirmed.

In re SRBA
2008 WL 427550, Docket No. 33669
Supreme Court of Idaho, February 19, 2008

Subjects: Snake River Basin Adjudication; Water rights -- Idaho -- Pocatello; Railroads -- Right of way -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho.

*Synopsis: City appealed decision in the Snake River Basin Adjudication denying city's claimed federal reserved water right. The Fifth Judicial District Court, Twin Falls County, John M. Melanson, J., affirmed. City appealed.

*Holding: The Supreme Court, Jones, J., held that:
(1) act clearly and unambiguously did not convey a water right to city, and
(2) even if act was ambiguous as to conveyance of a water right, the language would be construed against the city having a federal water right on Indian reservation.
Affirmed.

In re T.A.
883 N.E.2d 639, Docket No. 4-07-0785
Appellate Court of Illinois, Fourth District, February 15, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Illinois; Child welfare; United States. Indian Child Welfare Act of 1978; Indians of North America -- Defined.

*Synopsis: Father appealed from decision of the Circuit Court, Champaign County, Holly F. Clemons, J., finding child neglected and granting custody and guardianship of child to the guardianship administrator of the Department of Children and Family Services (DCFS).

*Holding: The Appellate Court, Myerscough, J., held that:
(1) record was insufficient to require the trial court, in neglect proceeding, to make a determination on the record whether child was an Indian child under Indian Child Welfare Act; and
(2) mother's statements to caseworker that she was of Native American descent and that, to her knowledge, none of her family members were registered with any tribes did not give the trial court reason to know that child was an Indian child, so as to trigger notice requirements under Act.
Affirmed.

In re M.B.
176 P.3d 977, Docket No. 98,387
Court of Appeals of Kansas, February 15, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Kansas; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: The State petitioned to terminate mother and father's parental rights to their two children. The District Court, Johnson County, Kathleen Sloan, J., terminated parental rights. Father appealed. The Court of Appeals dismissed the appeal and remanded the case. On remand the District Court determined that the Indian Child Welfare Act (ICWA) applied, and declined to invalidate any of its prior rulings. Father appealed.

*Holding: The Court of Appeals, Malone, J., held that:
(1) trial court failed to comply with the notice provisions of the ICWA;
(2) trial court error in failing to promptly provide Indian tribe with notice of children in need of care (CINC) proceedings was remedied when Indian tribe intervened in proceedings after termination of parental rights; and
(3) evidence was sufficient to support termination of father's parental rights to his two children.
Affirmed.

In re N.V.
744 N.W.2d 634, Docket No. 07-0583
Supreme Court of Iowa, February 15, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Iowa; Child welfare; United States. Indian Child Welfare Act of 1978; Jurisdiction -- Transfer -- Sac & Fox Tribe of the Mississippi in Iowa.

*Synopsis: At termination of parental rights hearing, mother requested the court to transfer jurisdiction of the proceeding to tribal court, and father joined the request. The District Court, Polk County, Constance Cohen, Juvenile Judge, granted the request. The State appealed.

*Holding: The Supreme Court, Wiggins, J., held that:
(1) trial court could not deny mother's request to transfer termination of parental rights proceeding to tribal court based on mother filing her request the day of scheduled termination hearing;
(2) evidence supported finding that neither the parties nor the witnesses would suffer undue hardship if the termination of parental rights case was transferred to tribal court; and
(3) doctrine of estoppel did not prevent parents from requesting transfer of termination of parental rights proceeding to tribal court.
Affirmed.

In re Miracle M.
73 Cal.Rptr.3d 24, Docket Nos. B200319, B200756
Court of Appeal, Second District, Division 7, California, February 14, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination; Notice (Law).

*Synopsis: After reports of child abuse occasioned by mother's use of methamphetamine and marijuana, county department of children and family services (DCFS) placed two daughters with paternal aunt. The Superior Court, Los Angeles County, No. BK07648, Deborah L. Losnick, Commissioner, terminated mother's parental rights. Mother appealed.

*Holding: The Court of Appeal, Woods, Acting P.J., held that:
(1) appeal from determination that Indian Child Welfare Act (ICWA) did not apply was waived;
(2) issue of failure to provide ICWA notice was waived; and
(3) any error in failure to provide notice was harmless.
Affirmed in part, reversed in part, and remanded.

In re A.A.
176 P.3d 237, Docket No. 98,835
Court of Appeals of Kansas, February 8, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Kansas; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: After ten-year-old child was found to be in need of care, the District Court, Barton County, Hannelore Kitts, J., terminated mother's and father's parental rights. Mother and father appealed.

*Holding: The Court of Appeals, Leben, J., held that:
(1) as a matter of first impression, the Revised Kansas Code for Care of Children, which provides that parental rights may be terminated only upon a showing of unfitness by clear and convincing evidence, does not violate the equal protection rights of non-Native Americans, though the federal Indian Child Welfare Act requires an even greater evidentiary hurdle before parental rights between Native American parents and children may be terminated;
(2) substantial evidence supported trial court's finding of parental unfitness;
(3) continuance of trial court hearing was not required; and
(4) trial court was not required to personally interview the child.
Affirmed.

Spota v. Jackson
853 N.Y.S.2d 520, Docket No. 1
Court of Appeals of New York, February 7, 2008

Subjects: Non-Indians -- On Indian reservations -- Unkechaug Indian Nation (N.Y.); Residency requirements -- Unkechaug Indian Nation (N.Y.); Family violence.

*Synopsis: District Attorney, acting on behalf of Indian tribe, applied for order under the Indian Law to remove a non-member from lands of the Unkechaug Indian Nation as an intruder. The County Court, Suffolk County, Hinrichs, J., denied the petition, and appeal was taken. The Supreme Court, Appellate Division, 832 N.Y.S.2d 574, affirmed, and leave to appeal was granted.

*Holding: The Court of Appeals, Kaye, C.J, held that:
(1) statute barring non-members from residing or settling on Indian lands did not give county courts discretion to determine, independent of Indian nation, whether a person is an “intruder” on tribal land, and
(2) tribal member's wife, who was not a member of the tribe but resided on a reservation allotment, became an “intruder” on Indian land within meaning of the statute after member's interest in the allotment was transferred to his brother.
Reversed.

Bittle v. Bahe
2008 WL 314902, Docket No. 103716
Supreme Court of Oklahoma, February 5, 2008

Subjects: Sovereign immunity -- Absentee-Shawnee Tribe of Indians of Oklahoma; Jurisdiction -- Oklahoma; Thunderbird Entertainment Center, Inc.; Liability (Law); Drunk driving.

*Synopsis: Motorist who was injured in collision with vehicle allegedly driven by intoxicated casino patron filed action against, among others, the casino and the Indian tribe that operated it, alleging dram shop liability. The District Court, Pottawatomie County, Douglas Combs, J., dismissed action on ground of tribal sovereign immunity. Motorist appealed. The Court of Civil Appeals, Division III, affirmed.

*Holding: Granting petition for certiorari review, the Supreme Court, Taylor, J. held that:
(1) words “laws of the state,” as used in federal statute that permits furnishing of intoxicating liquor in Indian country, if done in conformity both with laws of state in which such act or transaction occurs and with an ordinance duly adopted by tribe, includes laws providing for dram shop liability; and
(2) Indian casino, in obtaining state license to serve alcoholic beverages for on-premises consumption at the casino, waived any tribal sovereign immunity it may have had to suit in state courts including a common-law negligence action for dram shop liability.
Opinion of the Court of Civil Appeals vacated; dismissal order of the district court reversed and cause remanded.

Related News Stories: Court allows lawsuit over casino-related crash (Indianz.com) 2/6/08

Maisy W. v. State Department of Health and Social Services
175 P.3d 1263, Docket No. S-12704
Supreme Court of Alaska, February 1, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: Mother appealed from decision of the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, J., terminating her parental rights.

*Holding: The Supreme Court, Eastaugh, J., held that:
(1) mother failed to sufficiently remedy the conduct in the home that had placed the child at substantial risk of harm; and
(2) evidence in termination of parental rights case involving Indian children supported trial court's finding that the State made active efforts to prevent the breakup of the Indian family.
Affirmed.

January

Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawai'i
177 P.3d 884, Docket No. 25570
Supreme Court of Hawai'i, January 31, 2008

Subjects: Office of Hawaiian Affairs; Land titles – Registration and transfer -- Maui (Hawaii); Land titles -- Registration and transfer -- Hawaii Island (Hawaii); Transfer (Law); Public lands -- Hawaii; Trust lands -- Hawaii; Housing and Community Development Corporation of Hawaii.

*Synopsis: Office of Hawaiian Affairs (OHA), and native Hawaiians, brought action for declaratory and injunctive relief against State and against Housing and Community Development Corporation of Hawai‘i (HCDCH), seeking to enjoin defendants from alienating ceded lands from the public lands trust. After jury-waived trial, the First Circuit Court, Sabrina S. McKenna, J., entered partial judgment for defendants, and certified the judgment for interlocutory appeal.

*Holding: The Supreme Court, Moon, C.J., held that:
(1) joint resolution of United States Congress, and related State legislation, give rise to State's fiduciary duty to preserve the corpus of the public lands trust, i.e., the ceded lands, until such time as unrelinquished claims of native Hawaiians are resolved;
(2) earlier action did not have collateral estoppel effect;
(3) action was not barred by sovereign immunity;
(4) Office of Hawaiian Affairs did not waive its claims, through its conduct;
(5) claims were ripe;
(6) action did not present a nonjusticiable political question, and
(7) issuance of permanent injunction was warranted.
Vacated and remanded.

Polk County v. Department of Land Conservation and Development
176 P.3d 432, Docket Nos. 03WKTASK001541; A122385 (Control), A122732
Court of Appeals of Oregon, January 30, 2008

Subjects: Cities and towns – Growth -- Oregon; Trust lands -- Confederated Tribes of the Grand Ronde Community of Oregon; Zoning law -- Oregon; Land use -- Oregon.

*Synopsis: County and activist group sought review of a Land Conservation and Development Commission (LCDC) order which required county to justify an exception to a Statewide Land Use Planning Goal and to take action under the additional provisions of an LCDC rule regarding an area which the county sought to designate as an urban unincorporated community. The Court of Appeals affirmed and dismissed activist group's petition for lack of standing, 199 Or.App. 501, 112 P.3d 409, and activist group appealed. The Supreme court vacated and remanded, 342 Or. 344, 153 P.3d 123.

*Holding: On remand, the Court of Appeals, Landau, P.J., held that:
(1) activist group had standing to appeal LCDC decision;
(2) LCDC could treat boundaries drawn in county's initial application of the Unincorporated Communities Rules as the establishment, rather than the expansion, of community boundaries;
(3) Indian lands held in trust could be included within the boundaries of county's proposed unincorporated communities without the taking of exceptions to the Statewide Planning Goals;
(4) LCDC's transportation planning rule did not require that permitted land uses in county's proposed unincorporated communities be consistent with the transportation infrastructure currently provided; and
(5) county's zoning within its proposed unincorporated communities was not restricted by the population projections of the Statewide Planning Goals.
Affirmed.

State v. Quintana
178 P.3d 820, Docket No. 29,909
Supreme Court of New Mexico, January 25, 2008

Subjects: Indian Country (U.S.) -- Defined; Criminal jurisdiction -- Mexico; Traffic accidents -- Pueblo of Cochiti, New Mexico -- Members; Homicide -- New Mexico.

*Synopsis: Native American defendant was charged with vehicular homicide and great bodily injury by reckless driving. The District Court, Sandoval County, Louis P. McDonald, D.J., denied defendant's motion to dismiss for lack of jurisdiction, and defendant appealed. The Court of Appeals affirmed.

*Holding: On certiorari review, the Supreme Court, Edward L. Chavez, C.J., held that land where crimes occurred was not Indian country.
Affirmed.

In re Walter W.
744 N.W.2d 55, Docket No. S-07-393
Supreme Court of Nebraska, January 18, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Nebraska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: Mother of Indian child appealed from order of the Separate Juvenile Court, Douglas County, Elizabeth G. Crnkovich, J., terminating her parental rights. The Court of Appeals, 14 Neb.App. 891, 719 N.W.2d 304, vacated and remanded. On remand the Juvenile Court terminated parental rights. Mother appealed.

*Holding: The Supreme Court, Connolly, J., held that:
(1) evidence supported finding that the State made active efforts to provide remedial services and rehabilitative programs to mother;
(2) the State's expert established, beyond a reasonable doubt, that returning child to mother was likely to cause serious emotional or physical damage to child; and
(3) evidence was sufficient to establish that termination of mother's parental rights to child was in his best interest.
Affirmed.

Starr v. George
175 P.3d 50, Docket No. S-12456
Supreme Court of Alaska, January 18, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; Judgments, Foreign; Divorce suits; United States. Indian Child Welfare Act of 1978 -- Application.

*Synopsis: In child custody proceedings between maternal grandparents and paternal grandparents of two Tlingit children after mother killed father, maternal grandparents filed motion seeking to dismiss the custody case on grounds that maternal grandparents had obtained tribal council resolutions approving their adoption of the children. The Superior Court, First Judicial District, Juneau, Larry R. Weeks, J., denied motion and granted physical and legal custody of children to paternal grandparents. Maternal grandparents appealed.

*Holding: The Supreme Court, Eastaugh, J., held that:
(1) Indian Child Welfare Act (ICWA) divorce exception, which excepts from ICWA provisions custody awards to one parent in a divorce proceeding, did not extend to custody disputes between grandparents, and
(2) tribal council resolutions approving adoption, without notice to paternal grandparents, violated due process, and thus were not entitled to comity or full faith and credit under ICWA.
Affirmed.

Yellowbear v. State of Wyoming
174 P.3d 1270, Docket No. 06-246
Supreme Court of Wyoming, January 14, 2008

Subjects: Trials (Murder) -- Wyoming; Indian Country (U.S.) -- Defined; Jurisdiction -- Wyoming; Jurisdiction -- United States; Riverton (Wyo.); Wind River Indian Reservation (Wyo.).

*Synopsis: Defendant was convicted in the District Court of Hot Springs County, David B. Park, J., of two counts of felony murder and two counts of being accessory to felony murder. Defendant appealed.

*Holding: The Supreme Court, Voigt, C. J., held that:
(1) defendant's infant daughter was not killed in Indian country, and thus State of Wyoming rather than the United States had subject matter jurisdiction to prosecute defendant;
(2) instruction regarding defendant's duty to protect his daughter was not warranted, as neither the crime of child abuse, nor the crime of accessory before the fact, contained that duty as an element;
(3) error of trial court in instructing jury on alleged duty of defendant to protect his daughter did not prejudice defendant and was harmless;
(4) defendant could only be convicted of one crime, as a preliminary hearing, arraignment and plea took place on only one crime; and
(5) trial court did not abuse its discretion by denying defendant's motions for a new trial or a mistrial based on alleged prosecutorial misconduct during rebuttal closing argument.
Affirmed and remanded for amendment.

In re J.S.
177 P.3d 590, Docket No. 104648
Court of Civil Appeals of Oklahoma, Division No. 1, January 10, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Oklahoma; Child welfare; United States. Indian Child Welfare Act of 1978; Parental rights -- Termination.

*Synopsis: Mother appealed decision of the District Court, Tulsa County, Carl Funderburk, J., terminating parental rights to minor Indian children.

*Holding: The Court of Civil Appeals, Adams, P.J., held that:
(1) trial court's incorrect application of a heightened “beyond a reasonable doubt” standard of proof was harmless error, but
(2) Indian Child Welfare Act's (ICWA) requirement for “active efforts” at reunification sets a higher standard for social services departments than “reasonable efforts” standard of state termination of parental rights statutes.
Reversed and remanded with directions.

Steven H. v. Arizona Department of Economic Security
173 P.3d 479, Docket No. 1 CA-JV 07-0076
Court of Appeals of Arizona, Division 1, Department B, January 3, 2008

Subjects: Parent and child (Law); Trials (Custody of children) -- Arizona; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.

*Synopsis: Parents appealed from the decision of the Superior Court, Coconino County, No. MD2006-0031, Margaret A. McCullough, J., ruling that their children, who were Indians and therefore subject to the Indian Child Welfare Act (ICWA), were dependent.

*Holding: The Court of Appeals, Timmer, J., held that guardian ad litem (GAL) failed to prove that parents' continued custody of children would likely have resulted in serious emotional or physical damage to them, as required by ICWA.
Reversed and remanded.

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