May 30, 2017

Colorado Court of Appeals: Department of Human Services Must Make “Continuing Inquiries” About ICWA Status

The Colorado Court of Appeals issued its opinion in People in Interest of A.D. on Thursday, May 4, 2017.

Termination of Parental RightsIndian Child Welfare Act of 1978Continuing Inquiries.

In 2013, the Chaffee County Department of Social Services (Department) initiated a dependency and neglect proceeding involving Tr.D. Respondents denied the child was a member or eligible for membership in an Indian tribe, and the Department represented it had determined the child was not an Indian child. The petition was later withdrawn and the case closed.

In 2015, the Department initiated another dependency and neglect proceeding concerning Tr.D. and 6-month-old A.D. after mother and father were arrested on drug charges. The children were placed in foster care and adjudicated dependent and neglected. Treatment plans were developed for both parents, but neither could overcome their addictions. The Department ultimately filed a petition to terminate parental rights and stated that the children were not Indian children. No evidence concerning the Indian Child Welfare Act (ICWA) was elicited at the termination hearing. The trial court terminated parental rights and found the provisions of the ICWA did not apply.

On appeal, mother argued that the record failed to support the court’s ICWA finding because no questions were asked about possible Indian heritage during the proceedings and therefore the Department didn’t meet its “continuing inquiry” duty under the ICWA. The Department argued that the ICWA issue was resolved in the prior case and the trial court satisfied the ICWA requirements in this case because it took judicial notice of its ICWA finding in the previous case. The Department reasoned that because A.D. is a full sibling of Tr.D., the court’s previous finding as to Tr.D. must also apply to her. The ICWA required the Department to conduct new inquiries to determine whether the children were Indian children. Because there was no evidence in the record of such inquiries, further proceedings were required.

Because the ICWA inquiry may result in the court determining that the children are not Indian children, the court of appeals addressed the other issues raised on appeal. Mother argued that the grounds for terminating her parental rights were not established by clear and convincing evidence. Based on the record before it, the court disagreed. Father argued that the record did not support the finding that reasonable efforts were made to avoid the removal of the children from their home and to promote reunification of the family. Specifically, father argued that a dispute over venue delayed his ability to participate in a drug program, averring that reasonable efforts required not just providing services, but providing services “at the right time.” The court determined that father waived his right to raise this issue when he expressly agreed to hold the motion to change venue in abeyance and therefore failed to seek a ruling from the court.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Bills Signed Regarding Amending State Constitution, Revising Victim Rights Laws, and More

On Friday, April 28, 2017, the governor signed 29 bills into law and vetoed one bill. To date, he has signed 195 bills and vetoed one bill this legislative session. Some of the bills signed Friday include a bill to implement voter-approved changes to make it more difficult to amend the state constitution, a bill changing reporting requirements from the State Judicial Department to the General Assembly, a bill revising victim rights laws, a bill mandating minimum sentences for persons convicted of sex trafficking, and more. The bills signed Friday are summarized here.

  • HB 17-1158“Concerning the Regulation of Charitable Solicitations by the Secretary of State, and, in Connection Therewith, Modifying and Clarifying Filing Requirements and Enforcement of the ‘Colorado Charitable Solicitations Act,’ by Rep. Hugh McKean and Sens. Beth Martinez Humenik & Jim Smallwood. The bill clarifies that a charitable organization’s registration with the secretary of state must be renewed on an annual basis if the charitable organization intends to solicit donations in Colorado, and an organization may not continue to solicit if it fails to renew its registration. The bill also requires an organization to update information in its registration within 30 days after any change.
  • HB 17-1172“Concerning Criminal Penalties for Persons who Commit Human Trafficking of a Minor for Sexual Servitude,” by Reps. Terri Carver & Clarice Navarro and Sen. John Cooke. The bill requires a court to sentence a person convicted of a class 2 felony for human trafficking of a minor for sexual servitude to the Department of Corrections for a term of at least 8 years.
  • HB 17-1189“Concerning the Limit on the Number of Terms a Member of the Colorado Wine Industry Development Board may Serve,” by Reps. Jessie Danielson & Dan Thurlow and Sen. Ray Scott. The bill allows a member of the Colorado Wine Industry Development Board to serve two full 4-year terms insteat of one. Members may also continue to serve after the expiration of their terms until the appointment of a successor.
  • HB 17-1205“Concerning Changing the Definition of ‘Salvage Vehicle,’ by Rep. Jovan Melton and Sen. Beth Martinez Humenik. The bill changes the definition of ‘salvage vehicle’ to add another test of when an insurer determines the vehicle to be a total loss. The bill also adds theft damage as an exclusion to the types of damage that can cause a vehicle to be a salvage vehicle.
  • HB 17-1218“Concerning an Expansion of the State’s Ability to Share Information about State Financial Institutions with Other Governmental Regulators,” by Rep. Alec Garnett and Sen. Kevin Priola. The bill allows the banking board and the state bank commissioner to share records and other information about banks, trust companies, and money transmitters with banking or financial institution regulatory agencies of other states or United States territories if the governmental agency is required to maintain the confidentiality of the records and shares similar information with the division of banking.
  • HB 17-1241: “Concerning the Nonsubstantive Relocation of Laws Related to Indian Arts and Crafts Sales from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill relocates Article 44.5 of Title 12, which imposes requirements and penalties pertaining to the sale or offering for sale of authentic Indian and other arts and crafts, to a new Part 2 in Article 15 of Title 6 of the Colorado Revised Statutes, governing consumer and commercial affairs.
  • HB 17-1272“Concerning the Scheduled Repeal of Reports by the Department of Labor and Employment to the General Assembly,” by Rep. Edie Hooten and Sen. Dominick Moreno. The bill amends repeal dates and reporting requirements from the Department of Labor and Employment to the General Assembly.
  • HB 17-1316“Concerning Delaying the Implementation of House Bill 16-1309,” by Rep. Susan Lontine and Sen. Vicki Marble. The bill delays the implementation of HB 16-1309, which was enacted by the 2016 General Assembly and concerns a defendant’s right to counsel in certain cases considered by municipal courts, until July 1, 2018.
  • SB 17-051“Concerning the Rights of Crime Victims,” by Sens. Bob Gardner & Rhonda Fields and Reps. Polly Lawrence & Mike Foote. The bill makes several amendments to victim rights statutes, including amendments to the definitions of “crime,” “critical stages,” and “modification of sentence”; creation of a right for a victim to be informed of parole or pardon decisions; and more.
  • SB 17-083: “Concerning Implementation of Recommendations of the Committee on Legal Services in Connection with Legislative Review of Rules and Regulations of State Agencies,” by Sen. Daniel Kagan and Rep. Mike Foote. The bill extends all state agency rules and regulations that were adopted or amended on or after November 1, 2015, and before November 1, 2016, with the exception of the rules and regulations specifically listed in the bill.
  • SB 17-152“Concerning the Implementation of Voter-Approved Changes to the Colorado Constitution that Make it More Difficult to Amend the State Constitution, and, in Connection Therewith, Prohibiting a Petition for an Initiated Amendment to the State Constitution from Being Submitted to Voters Unless the Petition is Signed by the Constitutionally Required Number of Registered Electors who Reside in Each State Senate District and Total Number of Registered Electors, Requiring at Least Fifty-Five Percent of the Votes Cast on Any Amendment to the State Constitution to Adopt the Amendment Unless the Amendment Only Repeals in Whole or in Part a Provision of the State Constitution, in Which Case Requiring a Majority of the Votes Cast on the Amendment to Adopt the Amendment, and Making an Appropriation,” by Sen. Lois Court and Rep. Chris Kennedy. The bill implements changes to the Colorado constitution approved by voters at the 2016 general election that make it more difficult to amend the state constitution.
  • SB 17-179“Concerning the Limitation on the Amount of Fees that Can be Assessed for Allowing Solar Energy Device Installations, and, in Connection Therewith, Extending the Repeal Date,” by Sens. Andy Kerr & Bob Gardner and Reps. Lang Sias & Leslie Herod. The bill extends the repeal date of existing laws that limit the amount of permit, plan review, or other fees that counties, municipalities, or the state may charge for installing solar energy devices or systems.
  • SB 17-220“Concerning the Continuation of the Restorative Justice Coordinating Council,” by Sen. Lois Court and Rep. Jeni James Arndt. The bill extends the Council and moves it from Title 19, Colorado Revised Statutes, which relates to the juvenile code, to Title 13, Colorado Revised Statutes, which relates to the judicial code, since restorative justice use has expanded from juvenile cases to adult cases.
  • SB 17-223“Concerning the Nonsubstantive Relocation of Laws Related to the Treatment of Human Bodies After Death from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. Bob Gardner and Rep. Leslie Herod. The bill relocates Parts 1 and 2 of Article 34 of Title 12 of the Colorado Revised Statutes related to anatomical gift and unclaimed human bodies to new Parts 2 and 3 of Article 19 of Title 15.
  • SB 17-224“Concerning the Nonsubstantive Relocation of Laws Related to Commercial Driving Schools from Title 12 of the Colorado Revised Statutes as Part of the Organizational Recodification of Title 12,” by Sen. Daniel Kagan and Rep. Pete Lee. The bill relocates the statutes governing commercial driving schools to part 6 of article 2 of title 42.
  • SB 17-226: “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Financial Institutions from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. Daniel Kagan and Rep. Mike Foote. The bill relocates Article 13 of Title 12, pursuant to which the Commissioner of Financial Services and the Financial Services Board regulate life care institutions, to Article 49 of Title 11, and Article 52 of Title 12, pursuant to which the Banking Board and the State Bank Commissioner regulate money transmitters, to Article 110 of Title 11.
  • SB 17-231“Concerning the Scheduled Repeal of Reports by the Department of Transportation to the General Assembly,” by Sen. Dominick Moreno and Rep. Dan Thurlow. The bill amends repeal dates and reporting requirements from the Department of Transportation to the General Assembly.
  • SB 17-233“Concerning the Scheduled Repeal of Reports by the Department of Law to the General Assembly,” by Sen. Jack Tate and Rep. Jeni James Arndt. The bill amends repeal dates and reporting requirements from the Department of Law to the General Assembly.
  • SB 17-234“Concerning the Scheduled Repeal of Reports by the Department of Human Services to the General Assembly,” by Sen. Andy Kerr and Rep. Dan Thurlow. The bill amends repeal dates and reporting requirements from the Department of Human Services to the General Assembly.
  • SB 17-241“Concerning the Scheduled Repeal of Reports by the Judicial Department to the General Assembly,” by Sen. Jack Tate and Rep. Edie Hooten. The bill amends repeal dates and reporting requirements from the State Judicial Department to the General Assembly.
  • SB 17-246“Concerning the Treatment of Persons with Mental Health Disorders in the Criminal and Juvenile Justice Systems and Making a Corresponding Change to the Name of the Associated Task Force,” by Sen. Beth Martinez Humenik and Reps. Jonathan Singer & Dafna Michaelson Jenet. The bill changes the name of the ‘Legislative Oversight Committee Concerning the Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems’ to the ‘Legislative Oversight Committee Concerning the Treatment of Persons with Mental Health Disorders in the Criminal and Juvenile Justice Systems’. The bill makes a corresponding change to the associated task force and cash fund. The bill also modernizes terminology related to mental health disorders.
  • SB 17-255“Concerning the Creation of the Technology Advancement and Emergency Fund in the Office of Information Technology, and, in Connection Therewith, Making an Appropriation,” by Sen. Kent Lambert and Rep. Bob Rankin. The bill creates the Technology Advancement and Emergency Fund in the Office of Information Technology. Subject to annual appropriation by the General Assembly, the Office may expend money in the fund to cover one-time costs associated with emergency information technology expenditures, to address deferred maintenance of state agency information technology assets, and to provide additional services to address unforeseen service demands.
  • SB 17-257“Concerning the Creation of the Community Museums Cash Fund for the Administration of Revenues Generated by Community Museums Operated by the State Historical Society, and, in Connection Therewith, Making an Appropriation,” by Sen. Dominick Moreno and Rep. Bob Rankin. The bill deposits revenues from the community museums in a new community museums cash fund which would be appropriated specifically for the activities of the community museums.
  • SB 17-260“Concerning Transfers to the General Fund from Cash Funds with Severance Tax Revenues,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill requires the state treasurer to make certain transfers from the cash funds to the general fund on June 30, 2018.
  • SB 17-261“Concerning the Creation of the 2013 Flood Recovery Account in the Disaster Emergency Fund,” by Sen. Kevin Lundberg and Rep. Dave Young. The bill creates the 2013 flood recovery account in the disaster emergency fund and requires the state treasurer to transfer $12.5 million from the general fund to the account on July 1, 2017.
  • SB 17-262“Concerning the Transfer of Money from the General Fund to Cash Funds that are Used for the State’s Infrastructure,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill requires the state treasurer to make transfers for this fiscal year and the next three fiscal years from the general fund to the capital construction fund and the highway users tax fund, and requires percentage-based transfers after that.
  • SB 17-263“Concerning Capital-related Transfers of Money,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes certain transfers from the general fund.
  • SB 17-265“Concerning a Transfer of Money from the State Employee Reserve Fund to the General Fund,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill requires the state treasurer to transfer $26.3 million from the state employee reserve fund to the general fund on July 1, 2017.
  • SB 17-266“Concerning a Reduction in the Amount of the General Fund Reserve Required for the Fiscal Year 2016-17,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill reduces the statutorily required general fund reserve from 6.5% to 6% of the amount appropriated for expenditure from the general fund.

Additionally, the governor vetoed one bill on Friday. That bill was SB 17-139, “Concerning the Extension of the Credit for Tobacco Products that a Distributor Ships or Transports to an Out-of-State Consumer.” The governor stated that he was unpersuaded there would be a significant economic impact, and he was concerned about educating Colorado consumers on the dangers of tobacco use.

For a list of the governor’s 2017 legislative actions, click here.

Colorado Court of Appeals: Dependency and Neglect Court Should Have Followed ICWA’s Notice Requirements

The Colorado Court of Appeals issued its opinion in People in Interest of L.L. on Thursday, March 30, 2017.

Dependency and NeglectIndian Child Welfare ActNoticeBurden of Proof.

In this dependency and neglect case concerning L.L., his mother, A.T., told the juvenile court at a shelter hearing that she had possible Apache Native American ancestry. Later, A.T. filed written information that included tribal card numbers and roll numbers. The Denver Department of Human Services (Department) did not send notice of the proceedings to any of the Apache Tribes. A.T. again stated that she had Indian heritage at a pretrial hearing, but the juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. is a member or is eligible for tribal membership. The court also did not treat L.L. as an Indian child pending verification from the tribe. Following a jury verdict, the court adjudicated L.L. dependent and neglected.

On appeal, A.T. contended that the order should be reversed because the Department did not comply with the Indian Child Welfare Act (ICWA) notice requirements. First, when there is “reason to know” the child is an Indian child, the juvenile court must ensure that the Department sends notice to any identified Indian Tribe. Second, the court must “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child.’” Here, the Department did not meet its obligation to provide notice of the proceedings to any of the Apache Tribes. The juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. was a member or was eligible for membership and did not treat L.L. as an Indian child pending the Tribes’ verification.

A.T. also contended that the juvenile court violated ICWA by not requiring the jury to base its findings on a heightened clear and convincing evidentiary standard. There is no language in ICWA or associated rules or guidelines that indicates a heightened burden of proof for the adjudicatory hearing in a dependency and neglect proceeding. Thus, the state is only required to prove the allegations in the petition by a preponderance of the evidence in all adjudications, whether involving Indian or non-Indian children. The juvenile court did not err when it instructed the jury regarding the Department’s burden of proof.

The judgment was reversed and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Gives: Volunteers Needed for Sturm College of Law’s Tribal Wills Project

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

Each year, students from the Sturm College of Law at the University of Denver participate in the Tribal Wills Project (TWP). In January, March and May, TWP participants travel to a tribal reservation in Colorado, Utah, New Mexico, Arizona or Montana for a week to draft wills, medical powers of attorney, living wills, and burial instructions for tribal members on a pro bono basis. This work is extremely important for the following reasons.

Under the American Indian Probate Reform Act (AIPRA), if a tribal member dies without a will and his or her interests in trust land total less than specified amount, such interests automatically pass to the tribal member’s oldest living descendant to the exclusion of his or her remaining descendants. If the tribal member is not survived by any descendants, such interests pass back to the tribe. This is often in contravention of the tribal member’s intent. In some instances, tribal members are unaware of these default provisions under AIPRA; in other instances, tribal members may be aware of the default provision but are without the means or resources to have a will prepared to avoid the foregoing results. TWP gives tribal members a voice so that desired family members are not excluded from inheriting interests in trust land.

Additionally, TWP provides a unique opportunity for law students to gain hands-on experience with real clients. Initially, a student is paired with a client to conduct an interview. Thereafter, the student prepares initial drafts of the desired documents, which are then reviewed by a Colorado supervising attorney. The student and attorney work through the revision process together, which provides an essential learning opportunity for the student. Once the documents appear to be in order, the documents are further reviewed by an attorney who is licensed in the particular state where the reservation is location. Once the documents receive final approval, the student participates in the execution process.

TWP was initially developed in February 2013 by John Roach, who is a Fiduciary Trust Officer for the Southern Ute Agency of the Office of the Special Trustee for American Indians; former Colorado Supreme Court Justice Gregory J. Hobbs, Jr.; and University of Denver Professor Lucy Marsh, among others. The first trip occurred in March 2013 when the students and supervising attorneys travelled to the Southern Ute and Ute Mountain Ute Reservations in southern Colorado. Since then, TWP has grown exponentially. Each year, students apply for limited positions on the TWP team; many must be turned away based on the limited availability of funds and supervising attorneys.

In January 2017, twenty students and four supervising attorneys will travel to two reservations outside of Phoenix, Arizona. Similar groups will travel to New Mexico in March and Montana in May. It costs approximately $15,000 to fund each trip, which is funded primarily by donations.

TWP is actively seeking volunteer supervising attorneys to assist with future trips. If you are unable to serve as a supervising attorney for any reason, you can still help by making a tax-deductible donation to TWP.

For more information, please contact Lucy Marsh at (303) 871-6285 or lmarsh@law.du.edu.

Tenth Circuit: Historical Mandates Regarding Criminal Prosecutions on Ute Tribal Lands Must Be Enforced

The Tenth Circuit Court of Appeals issued its opinion in Ute Indian Tribe of the Uintah and Ouray Reservation v. Myton on Tuesday, August 9, 2016.

Beginning in the 1860s, members of the Ute Tribe were forced onto a new reservation. By 1905, Congress authorized the Secretary of the Interior to break up the Ute reservation by assigning individual plots to tribal members and alloting any leftover land to homesteaders. In 1945, Congress ordered all unalloted lands returned to tribal jurisdiction. In 1975, the Ute Tribe filed a federal lawsuit alleging that the State of Utah and several local governments were prosecuting tribal members for crimes committed on tribal land, despite a federal mandate requiring prosecution by federal or tribal authorities. In 1985, the Tenth Circuit issued a decision known now as Ute III in which it ruled that all lands encompassed by the original boundaries of the Ute reservation were tribal lands.

Unsatisfied with this outcome, state and local officials “went shopping for a ‘friendlier forum'” in which to litigate their disputes. State officials argued in Utah state courts that their criminal prosecutions for crimes committed on tribal lands could proceed because the 1905 legislation carved out those lands that passed to non-tribal members. The Utah Supreme Court and U.S. Supreme Court agreed. The Tenth Circuit reconsidered Ute III‘s mandate in light of Hagen v. Utah, 510 U.S. 399 (1994), and issued Ute V to reconcile its earlier ruling with the Supreme Court’s decision.

Utah and several of its counties again began prosecuting tribal members in state courts for crimes committed on tribal lands, leading the Tribe to request a permanent injunction from the district court in 2013. However, in a one line order containing no explanation, the district court denied the Tribe’s request. In Ute VI, the Tenth Circuit once again found that the lands in question were undeniably tribal and the state and localities were again attempting to undo the tribal boundaries settled by Ute III and Ute V. While Ute VI was pending, the municipality of Myton filed a motion to dismiss the Tribe’s suit. The district court granted Myton’s motion to dismiss

The Tribe and the federal government requested the Tenth Circuit to give effect to Ute V‘s mandate by overturning the district court, and the Tenth Circuit felt “obliged to do exactly that.” Myton disputed the facts in the complaint, arguing that none of the lands within its bounds was subject to the 1945 restoration order. The Tenth Circuit remarked that a motion to dismiss is not proper when facts are contested. The Tenth Circuit found it undisputed that nearly half of the town’s land remained tribal trust land. Although Myton pointed to a sentence in Hagen that the crime in question had been committed in the town on non-tribal land, the Tenth Circuit declined to extend that holding to mean that all lands in the town were non-tribal. Myton also argued it would be inequitable for the town’s administration to have parcels where it could not exercise criminal jurisdiction. The Tenth Circuit found this argument unavailing, noting that “checkerboard jurisdiction” is a fact of daily life in the West, where many municipalities have successfully navigated similar congressional mandates. Myton also appealed to laches, contending that since the Tribe waited so long to assert claims against it, Myton fairly believed its township to be all non-tribal lands. The Tenth Circuit disagreed, noting first that laches cannot be asserted against the United States and also finding that the Tribe has vigorously defended its rights since the first suit in 1975.

The Tribe also requested that the Tenth Circuit assign the case to a different district judge on remand. The Tenth Circuit remarked that it reserves reassignment for only the most extreme cases, of which this was one. The district court judge “twice failed to enforce” the Tenth Circuit’s mandate in Ute V and the Tenth Circuit found little hope that things would change on remand.

The Tenth Circuit reversed the district court’s order granting Myton’s motion to dismiss, and ordered that this case and all related matters be reassigned on remand.

Tenth Circuit: Descendants of Sand Creek Massacre Victims Not Entitled to Reparations Accounting

The Tenth Circuit Court of Appeals issued its opinion in Flute v. United States on Tuesday, December 22, 2015.

As described by the Tenth Circuit, this case arose “out of an ignominious event in the history of this Nation.” In 1864, the United States Army conducted an unprovoked attack on a group of unarmed Indians of the Arapaho and Cheyenne Tribes, who had relocated to an area next to the Sand Creek River in the Territory of Colorado at the direction and under the protection of the Territorial Governor and Superintendent of Indian Affairs, John Evans. When what has become known as the Sand Creek Massacre was over, most of the Indians were dead, including many women and children.

After an investigation, the United States publicly acknowledged its role in the tragedy and agreed to pay reparations to certain survivors of the massacre. On October 14, 1865, the United States entered into the Treaty of Little Arkansas, which expresses the United States’ condemnation of “the gross and wanton outrages perpetrated against certain bands of Cheyenne and Arrapahoe Indians . . . at Sand Creek, Colorado Territory.” On July 26, 1866, the U.S. Congress appropriated funds to pay the reparations detailed in the Treaty of Little Arkansas.

According to Plaintiffs, the funds appropriated by Congress were insufficient to compensate all the victims of the massacre. Moreover, instead of paying reparations directly to the affected individuals as directed, the Secretary of the Interior paid some of the money directly to the Tribes. What funds were not distributed to the Tribes were returned to surplus on August 30, 1872. The United States has never provided an accounting of the reparations paid or attempted to identify the individuals to whom reparations were still owed.

Plaintiffs are descendants of the victims of the Sand Creek Massacre. They brought a class action on behalf of themselves and others similarly situated, alleging the United States acted in the capacity of a trustee over the funds appropriated under the Treaty of Little Arkansas and the 1866 Appropriations Act. Plaintiffs argue the Defendants are in breach of their trust obligations for failing to provide an accounting of the reparations funds held in trust for Plaintiffs’ ancestors. The district court dismissed Plaintiffs’ complaint under Rule 12(b)(1), finding it lacked jurisdiction because the United States had not waived sovereign immunity. This appeal followed.

The Tenth Circuit began its analysis with a discussion of sovereign immunity. The sovereign immunity enjoyed by the United States and its officers extends to injunctive relief, and therefore, it bars the relief sought by Plaintiffs here—an order directing the government to provide an accounting. Thus, to proceed against the government, the Plaintiffs must identify some statutory text that expressly and unequivocally waives sovereign immunity.

The Plaintiffs argued the United States’ waiver of sovereign immunity can be found in a series of statutes enacted by Congress appropriating funds to the Department of Interior (the most recent of which occurred in a 2009 appropriations act, hereinafter “2009 Act”), including some funds specifically appropriated for programs associated with Indian tribes (hereinafter collectively referred to as “the Appropriations Acts”). The Tenth Circuit held the 2009 Act, standing alone, does not waive sovereign immunity as the text of the 2009 Act never mentions sovereign immunity, nor does the 2009 Act relieve a plaintiff of the independent obligation to identify an express waiver of sovereign immunity in order to maintain an action against the government.

Second, despite the complete absence of an express waiver of sovereign immunity, Plaintiffs insisted that the 2009 Act constitutes a waiver of sovereign immunity, relying on the Federal Circuit Case Shoshone II. The court rejected Plaintiffs’ interpretation of Shoshone II, reasoning a plaintiff must satisfy two separate requirements to pursue a claim against the government: (1) identification of an express waiver of sovereign immunity, and (2) initiation of the suit before the statute of limitations for the plaintiff’s claim runs and effectively negates that waiver. Even if the 2009 Act were applicable here, the Tenth Circuit reasoned, Plaintiffs could meet only one of these requirements because the 2009 Act contains no express waiver of sovereign immunity.

Third, the Plaintiffs argued that the Treaty of Little Arkansas, in combination with the Appropriations Acts, created an enforceable trust relationship such that they are now entitled to an accounting from the Secretary of the Interior. The court rejected this argument, noting the Appropriations Acts are limited to claims for misappropriation of trust assets, and neither the Treaty of Little Arkansas nor the 1866 Appropriations Act imposes fiduciary trust obligations on the government. And in the absence of such a trust relationship, any purported waiver of immunity contained in the 2009 Act is inapplicable to Plaintiffs’ claims. As such, even if we agreed with Plaintiffs that the 2009 Act expressly waives the United States’ immunity, the court stated, it could not do so in this case. Accordingly, Plaintiffs were unable to identify a waiver of the United States’ sovereign immunity. Absent such a waiver, the courts lack the power to grant Plaintiffs relief, the Tenth Circuit held, thereby affirming the district court’s dismissal of the action for lack of subject matter jurisdiction.

Tenth Circuit: Remand Order Non-Reviewable Where Based on Lack of Unanimity

The Tenth Circuit Court of Appeals issued its opinion in Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation on Thursday, August 13, 2015.

Ryan Harvey and other plaintiffs filed a complaint in Utah state court against the Ute Indian Tribe of the Uintah and Ouray Reservation, seeking a declaration regarding the authority of the Tribe over non-Indian businesses operating on certain categories of land. Plaintiffs also alleged three individuals affiliated with the Uintah Tribal Employment Rights Office had harassed and extorted Plaintiffs. Defendants filed a motion to dismiss, arguing that service of process had been insufficient, the state court lacked jurisdiction in the absence of a valid waiver of tribal immunity, the Tribe and its officers were immune from suit but were indispensable parties, and Plaintiffs failed to exhaust administrative remedies in tribal court. Following a hearing on the motion to dismiss, the state court ordered further briefing regarding whether the defendants’ motion constituted a general appearance. The court granted Plaintiffs’ motion to amend its complaint to add defendants.

Defendants filed a notice of removal in the U.S. District Court for the District of Utah, stating that certain defendants consented to removal and the others would consent. All except one eventually consented to removal. Plaintiffs then filed a motion to remand, arguing the initial defendants waived their right to remove by litigating in state court, removal was untimely, the defendants had not unanimously consented to removal, and the federal court lacked subject matter jurisdiction. The district court granted the motion to remand, finding the initial defendants waived their right to consent to removal because they manifested an intent to litigate in state court, and the unanimity requirement could not be met.

The Tenth Circuit first noted that 28 U.S.C. § 1447(d) specifies that a district court order remanding to state court is “not reviewable on appeal or otherwise.” Following Supreme Court precedent establishing that some orders are reviewable despite the statute’s plain language, the Tenth Circuit noted that § 1447(d) has been interpreted to preclude review only for lack of subject matter jurisdiction or defects in removal procedure. The Tenth Circuit commented that although the circuits are split on whether remand based on waiver is reviewable, it would only address remand for lack of unanimity. The Tenth Circuit evaluated whether the remand was based on lack of unanimity and found that it was. The Tenth Circuit declined to review the remand order.

The Tenth Circuit granted appellees’ motion to dismiss and dismissed the appeal.

Tenth Circuit: Incidental Mailings Triggered by Fraud Qualify as Mail Fraud Acts

The Tenth Circuit Court of Appeals issued its opinion in United States v. Zander on Friday, July 24, 2015.

Jeffrey Zander began working for the Paiute Indian Tribe in Utah in 1998 as a tribal planner, and he later became the Tribe’s trust resource and economic development director. In 2004 or 2005, he recommended to the Tribe that it seek federal grant money to fund development of an Integrated Resource Management Plan (IRMP) for each of the Tribe’s bands. Between 2005 and 2007, Zander prepared grant proposals to request funding from the Bureau of Indian Affairs (BIA) for the Tribe to develop IRMPs for each of its bands. Each proposal represented most of the grant funds would be used to hire and pay an outside facilitator to assist the Tribe. Each proposal was approved by that band’s council and the Tribal Council, then submitted to the BIA, which approved and awarded five IRMP development grants for a total of $165,000. Instead of hiring an outside consultant, Zander transferred the funds to four fictitious companies he created, then represented to the Tribe that these companies had provided consulting services for the IRMP development. The Tribe then issued checks to the companies, which were either mailed or hand-delivered to Zander. The Tribe then requested reimbursement from the BIA, which it approved, sometimes via fax.

Zander deposited the checks made out to the fictitious companies into his personal checking account and spent all of the $165,000. The Tribe learned of Zander’s scheme when a bank employee contacted it in March 2008 to ask about check made out to one of the fictitious businesses that Zander had tried to deposit in his personal checking account. The Tribe conducted a short investigation and fired Zander. The Tribe thereafter received a notice of collection from the BIA seeking repayment of the grant funds based on the Tribe’s failure to product the IRMPs the grants were intended to fund.

In February 2012, Zander was indicted on several charges, including mail fraud, wire fraud, money laundering, and failure to file tax returns. He was tried before a jury and convicted on all of the counts in the indictment. He was sentenced to 68 months’ imprisonment and ordered to pay $202,543.92 in restitution to the Tribe based on the actual grant funds, attorney fees, unemployment benefits, and Tribal employees’ time and travel costs associated with the case. He appealed, arguing five points of error: (1) insufficient evidence to support his mail fraud convictions; (2) insufficient evidence to support his wire fraud convictions; (3) a conditional challenge to his money laundering conviction; (4) a challenge to the procedural reasonableness of his sentence; and (5) a challenge to the restitution award. The Tenth Circuit addressed each in turn.

The Tenth Circuit meticulously examined Zander’s mail fraud challenge. Zander argued that although the BIA had mailed checks for the proposed IRMP development, those checks would have been mailed regardless of fraudulent intent had the Tribe submitted grant proposals. The Tenth Circuit rejected this argument, finding that although the mailings were an innocent side effect of Zander’s fraud, he set in motion the mechanism that caused the checks to be mailed. The Tenth Circuit compared Zander’s fraud to that of the defendant in Schmuck v. United States, where defendant altered the odometers of used cars and sold them to dealers at inflated prices. There, as in Zander’s case, although the mailings themselves were an innocent by-product of fraud, they would not have occurred but for the defendants’ fraudulent acts. The Tenth Circuit similarly rejected Zander’s wire fraud arguments, concluding that although the faxed themselves were innocuous, they occurred solely because of Zander’s fraudulent acts. Because Zander’s challenge to the money laundering conviction was conditional based on the Tenth Circuit’s findings on the mail and wire fraud counts, the Tenth Circuit affirmed the money laundering conviction.

Next, the Tenth Circuit addressed Zander’s challenges to the procedural reasonableness of his sentence and his restitution award. The Circuit found that the district court incorrectly included costs in the restitution award without requisite findings affirmatively showing that the costs were directly and proximately caused by Defendant’s conduct. These costs raised the base offense level for the conviction, resulting in a higher sentence. The Tenth Circuit reversed and remanded for resenting and recalculation of the restitution award based on the new offense level and based on evidence tying costs directly to Zander’s conduct.

The district court’s conviction was affirmed. The sentence and restitution award were reversed and remanded for recalculation.

Run the Red Rock Scramble 5.8K to Benefit the Colorado Indian Bar Association

RedRockScrambleThe Colorado Indian Bar Association is hosting its annual fundraiser, the Red Rock Scramble, on Sunday, October 11, 2015, at 10 a.m. This 5.8K run on a hard-packed dirt road with beautiful views of the flatirons and surrounding mountains benefits the CIBA and raises money for scholarships to benefit one student each year in attendance at the University of Denver Sturm College of Law and the University of Colorado School of Law who will be practicing in the field of Federal Indian Law or who commits to working with American Indian communities. Registration for the run is only $30, and small prizes will be awarded to the top male and female runners in each of several age categories. CIBA will also provide a $50 gift certificate to a running store to the overall top male and female runners. Click here to register and for more information about the race.

The Colorado Indian Bar Association is a local bar association consisting of American Indian lawyers, practitioners of American Indian law, and American Indian law students in Colorado. CIBA promotes the development of Indian Law for the maximum benefit of Indian people, strives toward justice and effective legal representation for all Indian people, provides a forum for Native Americans to become more involved in the local and national issues affecting Indian people, provides networking and support to encourage Native Americans to pursue careers in the law, and promotes the nomination of Native Americans for judicial appointments.

Register today for the Red Rock Scramble!

Tenth Circuit: Final Decisions of Tenth Circuit and Supreme Court Must Be Respected

The Tenth Circuit Court of Appeals issued its opinion in Ute Indian Tribe of the Uintah and Ouray Reservation v. State of Utah on Tuesday, June 16, 2015.

Nearly 40 years ago, the Ute Tribe in Utah filed suit against the state and several local governments, alleging the governing bodies were unlawfully trying to displace tribal authority on tribal lands. The Tenth Circuit issued a ruling in 1985 (Ute III) agreeing with the tribe and rejecting Utah’s claim that Congressional action had diminished three constituent parts of the Ute tribal land. The U.S. Supreme Court denied certiorari, but instead of following the Tenth Circuit’s mandate, state authorities prosecuted tribal members in state court for conduct occurring within tribal boundaries. One of these cases made it to the U.S. Supreme Court, and the Court agreed with the Utah Supreme Court that the tribal boundaries were diminished. Because of the conflicting rulings, the Tenth Circuit recalled and modified Ute III‘s mandate in a ruling the parties called Ute V.

Despite these final rulings, Utah continued to defy the mandates and prosecute tribal members in state court for actions occurring within tribal boundaries. The tribe filed suit against Utah and several local governments in federal court, seeking a permanent injunction prohibiting the state from prosecuting tribal members in state court for conduct occurring within tribal boundaries and prohibiting the state from relitigating matters settled by Ute III and Ute V. The tribe specifically asked for an injunction to halt the prosecution of one tribal member, Lesa Jenkins, for alleged traffic infractions occurring within tribal lands. The state and Uintah and Duchesne counties counterclaimed, arguing the tribe had infringed upon their sovereignty. Three interlocutory orders were before the Tenth Circuit as a result of the latest litigation: (1) the tribe’s request for a preliminary injunction, (2) the tribe’s assertion of immunity from the government’s counterclaims, and (3) Uintah County’s claim of immunity from the tribe’s suit.

The Tenth Circuit first addressed the tribe’s request for a preliminary injunction. The district court denied the request in one sentence, holding the tribe failed to demonstrate that it would suffer irreparable harm without an injunction. The Tenth Circuit disagreed, stating that it has repeatedly held that an invasion of tribal sovereignty can constitute irreparable injury, and the invasion of sovereignty in the instant case was much greater than that in the previous precedent. The Tenth Circuit suspected the “tortured litigation history” behind the prosecution of Ms. Jenkins was a repeated campaign to undo its previous mandates in Ute III and Ute V. The state brushed off the tribe’s concerns as “speculative,” and Wasatch County argued the tribe could not exercise any authority over any lands in Utah because it was once a separate, independent nation called the “State of Deseret” with its own constitution that didn’t recognize tribal authority. The Tenth Circuit found this argument unavailing. The Tenth Circuit found no doubt that the government’s conduct significantly interfered with tribal self-government sufficient to constitute irreparable injury to the tribe, opining that it seemed to be the government’s purpose. The merits of the case also supported the Tenth Circuit’s conclusion that a preliminary injunction was mandated. The Tenth Circuit found little support in the state’s argument that it would be required to engage in racial profiling to determine whether a driver stopped for a traffic infraction was a member of a tribe, noting the police could simply ask the driver whether the driver is a member of the tribe, and contact tribal authorities instead of writing the ticket. The Tenth Circuit compared the potential harms that could arise with and without the injunction, finding no question that the tribe would suffer more than the state. The Tenth Circuit remanded to the district court with instructions to issue the preliminary injunction against the defendants.

The Tenth Circuit next dismissed the counterclaims against the tribe, finding it had long been settled that Indian tribes are only subject to suit where authorized by Congress and these counterclaims were not authorized. The states and counties argued the tribes waived their immunity in three agreements signed after Ute V, but the Tenth Circuit found no support for this argument, because the agreements had expired and specifically reserved tribal immunity. The Tenth Circuit found the tribe was entitled to dismissal of the counterclaims.

Finally, the Tenth Circuit turned to Uintah County’s argument it was entitled to immunity, finding it foreboding that no other governmental entity joined its claims. Noting that the Supreme Court has repeatedly denied immunity to counties, the Tenth Circuit quickly rejected Uintah County’s assertion that its county attorneys were the main focus of the suit and they were subject to immunity as “arms of the state.” After determining that the attorneys had insufficient connections to qualify as arms of the state, the Tenth Circuit dismissed these arguments.

Issuing a reprimand to the state and counties for disobeying its previous mandates, the Tenth Circuit noted “A system of law that places any value on finality — as any system of law worth its salt must — cannot allow intransigent litigants to challenge settled decisions year after year, decade after decade, until they wear everyone else out. Even — or perhaps especially — when those intransigent litigants turn out to be public officials, for surely those charged with enforcing the law should know this much already.” The district court’s decision denying the tribal request for a preliminary injunction was reversed and the court was directed to issue the injunction. The decision denying tribal immunity was also reversed and the district court was instructed to dismiss the counterclaims against the tribe. The district court’s decision denying immunity to Uintah County was affirmed. The Tenth Circuit warned that sanctions would issue for further litigation about these settled issues.

Tenth Circuit: Conviction Stands Despite Jury’s Lack of Instruction on “Discharge” of Firearm

The Tenth Circuit Court of Appeals issued its opinion in United States v. Mann on Monday, May 18, 2015.

Clay Mann threw a firework into a neighbor’s bonfire at the neighbor’s peaceful gathering on an Indian reservation, and when members of the gathering approached the fenceline to confront Mann, he shot nine times, killing one man and grievously wounding one other man and the neighbor. For these acts, he was indicted on eight counts by a federal grand jury. Two weeks after the jury’s verdict, Mann filed a “motion to arrest judgment” based on the Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), arguing that his conviction on Count 5 (a firearms offense based on the assault of the neighbor under § 924(c)) must be vacated because the jury did not find “discharge” of a firearm beyond a reasonable doubt. The district court conducted a plain error inquiry and determined it had erred by failing to instruct the jury on the element of discharging the firearm and the error was plain. The district court, however, found the error had not prejudiced Mann, because he had never contested that he fired shots. The district court sentenced Mann to three concurrent 51 month sentences for the involuntary manslaughter and two assault convictions, and a consecutive 120 month sentence for the § 924(c) conviction regarding the assault of the neighbor. Mann appealed.

The Tenth Circuit conducted a plain error review. Mann argued on appeal that the district court constructively amended count 5 of his indictment by not instructing the jury that, to convict, it needed to find beyond a reasonable doubt that he knowingly discharged his firearm in relation to the assault. Finding that the district court properly instructed the jury on the elements of a § 924(c) violation, the Tenth Circuit could discern no error, much less plain error. The Tenth Circuit found that the Alleyne error (failure to instruct the jury that it must find discharge beyond a reasonable doubt) did not qualify Mann for any relief in light of the overwhelming evidence that he discharged a firearm several times during the assault, including Mann’s own FBI interview in which he admitted discharging the firearm. Any error was harmless beyond a reasonable doubt in light of this evidence.

The Tenth Circuit likewise concluded Mann could not use the error from the Alleyne analysis on his constructive amendment claim, since he was not required to show constructive amendment for his Alleyne claim. Although the government endorsed Mann’s “shortcut,” the Tenth Circuit did not. Turning to the merits of Mann’s argument, the Tenth Circuit noted the case law on which he relied for his claim of error had been rejected by the Supreme Court. The Tenth Circuit, relying on good case law, found that Mann failed to show any error and rejected his constructive amendment claim.

The district court’s conviction was affirmed.

Tenth Circuit: State Could Not Enjoin Operation of Casino on Non-tribal Land Under IGRA

The Tenth Circuit Court of Appeals issued its opinion in State of Oklahoma v. Hobia on Monday, November 10, 2014.

Tiger Hobia is the Town King of the Kialegee Indian Tribe, a federally-recognized tribe organized under § 3 of the Oklahoma Indian Welfare Act. The Tribe does not have any land, but it sought to build a casino in Broken Arrow, Oklahoma, on land owned by two sisters who are members of the Muskogee Creek Nation. The State of Oklahoma filed an action against Hobia and other tribal officials, as well as a federally-chartered corporation related to the tribe and a related
Oklahoma limited liability company, alleging they were attempting to construct and operate a Class III gaming facility on non-Indian lands in violation of the Indian Gaming Regulatory Act (IGRA) and a state-tribal gaming compact. Defendants moved to dismiss the complaint, but the district court denied their motion. The district court subsequently granted a preliminary injunction against defendants, prohibiting them from constructing or operating a Class III gaming facility on the property at issue. Defendants appealed.

The Tenth Circuit analyzed the case in light of the Supreme Court’s recent decision in Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024 (2014). The Court held in Bay Mills that Indian gaming conducted on non-Indian lands could not be enjoined under the IGRA, although the state had other options for regulating operations at the casino. Based on the holding in Bay Mills, the Tenth Circuit examined the property on which the casino was to be established and found it was not tribal land — indeed, the tribe had no land of its own. The Tenth Circuit reversed the district court decision enjoining defendants from building or operating the casino and remanded with instructions for the district court to dismiss the state’s case with prejudice.