ICWA Qualified Expert Witness Case out of Kansas Court of Appeals

Here. This case has a lot of problems, but the biggest one is the lack of a qualified expert witness at the adjudication phase. The court describes child welfare proceedings as falling into two phases:

Proceedings that end in termination of parental rights in Kansas have two major phases. First, there’s an adjudication, after stipulations or an evidentiary hearing, that the child is in need of care. Second, if termination of parental rights is ultimately sought, there’s a termination order, also after stipulations or an evidentiary hearing. Because no expert testimony was presented in this case at the adjudication hearing, Mother and Father claim that the district court should have dismissed the action at that time.

While all the parties agreed that the adjudication hearing was a 1912 hearing that required QEW testimony, the court still found the lack of QEW testimony at the foster care placement hearing (1912) to be harmless error (that sound you just heard is ICWA attorneys across the country screaming in frustration).

This is pretty troubling, as under federal law, the QEW testimony has to happen at two stages in an ICWA proceeding–a foster care proceeding, and a termination of parental rights. Forcing the State to get QEW testimony is one of the parent’s main rights under the Act, and the legislative history makes pretty clear the QEW testimony is one of the primary ways Congress sought to counter bias in state court proceedings. In addition, as the Kansas court of appeals points out:

So the M.F. [Kansas Supreme] court stated in passing that “it is difficult to conclude a procedural violation of [the Indian Child Welfare Act] can be harmless.” M.F., 290 Kan. at 157 (citing 25 U.S.C. § 1914).

Right. In that case, In re M.F., the Kansas Supreme Court specifically held that a lack of QEW testimony is not harmless error. The Kansas court of appeals cites to a number of pre-In re M.F. decisions, plus the fact there was QEW testimony as the termination of parental rights hearing, to find that it can apply a harmless error standard here.

Posted in Author: Kate E. Fort, Child Welfare, ICWA | Tagged , , , | Leave a comment

Indigenous Law Journal Call for Papers


Indigenous Law Journal – Call For Submissions!

Please download our Call for Submissions!

Deadline: September 1, 2017

Please contact the Submissions Manager prior to making an oral submission, or to submit written work: submissions.ilj@utoronto.ca

If someone you know would like to receive future calls for submissions, please signup here (link)! You may unsubscribe from our list using the link at the bottom of this email.


Ben Hanff, Josh Favel, Catherine Ma
The Indigenous Law Journal

Posted in Author: Matthew L.M. Fletcher, Call for Papers, Canada | Tagged , | Leave a comment

NYTs: “A Lost Art in the Arctic: Igloo Making”


Posted in Author: Matthew L.M. Fletcher, cultural resources, News | Leave a comment

Ninth Circuit Affirms Dismissal of Tort Claim against Rocky Boy’s

Here is the unpublished opinion in Eagleman v. Rocky Boy’s Chippewa-Cree Business Committee or Council.

Briefs here.

Lower court materials here.

Oral argument video here.

Posted in Author: Matthew L.M. Fletcher, Research, sovereign immunity | Tagged , , , | Leave a comment

Isleta Pueblo Sues New Mexico over Revenue Sharing

Here is the complaint in Pueblo of Isleta v. Martinez (D.N.M.):


An excerpt:

The Plaintiffs seek a declaration, pursuant to 28 U.S.C. § 2201, that the Defendants’ ongoing effort under the 2015 Tribal-State Gaming Compacts with the State of New Mexico (“2015 Compact”) to require each Pueblo to retroactively treat all free play credits used on Gaming Machines as revenue for purposes of calculating State revenue sharing payments under the 2007 Tribal-State Gaming Compacts with the State of New Mexico (“2007 Compact”) violates federal law.

Posted in Author: Matthew L.M. Fletcher, IGRA, Research | Tagged , , , | Leave a comment

Spokane County Sues to Stop Spokane Tribe Casino

Here is the complaint in Spokane County v. Dept. of Interior (E.D. Wash.):


An excerpt:

Spokane County, Washington (“County”) brings this action seeking review of and relief from a June 15, 2015 decision by the Department of the Interior (“Department”) approving a proposal by the Spokane Tribe of Indians to build its third casino directly below Fairchild Air Force Base’s (“Fairchild AFB”) VFR traffic pattern for Fairchild’s primary runway. The Department’s determination that this casino will not be detrimental to the surrounding community violates federal statutes governing such decisions, overrides the opposition of the vast majority of officials elected to represent the interests of the surrounding community, is belied by the record evidence and long-standing agency policy, and defies basic common sense.

Posted in Author: Matthew L.M. Fletcher, IGRA, Indian gaming, Research | Tagged , , , | Leave a comment

Cert Petition in Washington State Dept. of Licensing v. Cougar Den Inc.


Cert Petition

Questions presented:

Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways.

Lower court materials here.

Posted in Author: Matthew L.M. Fletcher, Research, Supreme Court, taxation, treaty rights | Tagged , , , | Leave a comment

National Indian Law Library Bulletin (6/21/2017)


The National Indian Law Library added new content to the Indian Law Bulletins on 6/21/17.

U.S. Supreme Court Bulletin
Opinion was issued in Matal v. Tam (Trademarks; Free Speech) on 6/19/17.

U.S. Federal Courts Bulletin
French v. Starr (Tribal Jurisdiction; Eviction)
Darnell v. Merchant (Witnesses)

State Courts Bulletin
In Interest of L.M.B. (Indian Child Welfare Act – Expert Witnesses)

News Bulletin
In the Culture and Tradition section, we feature an article about the U.S. Supreme Court decision striking down a ban on disparaging trademarks.

Law Review & Bar Journal Bulletin
The following articles were added:
Bringing it home: North American genocides.
The model tribal probate code: Opportunity to correct the problems of fractionation and legacy of the Dawes Act.
The Indian Health Service: Barriers to health care and strategies for improvement.
Casting a wide net: Why it is incumbent upon the Environmental Protection Agency to expand the scope of its cost-benefit analysis to include Native American populations and cultural fishing practices in the aftermath of Michigan v. EPA.
Changing currents: Climate change and stakeholder involvement in the Colorado River basin.
The Antiquities Act & national monuments: Analysis of geological, ecological, & archaeological resources of the Colorado Plateau.

Posted in Author: Matthew L.M. Fletcher, Research | Tagged | Leave a comment

Bob Chang: “Derogatory trademarks aren’t about free speech. They’re about discrimination.”

From WaPo, here.

Posted in Author: Matthew L.M. Fletcher, cultural resources, Research | Tagged , | Leave a comment

Second Circuit Rejects MGM Challenge to Connecticut Gaming Law

Here are the materials in MGM Resorts International v. Malloy:

CA2 Opinion

MGM Brief

Connecticut Brief


Posted in Author: Matthew L.M. Fletcher, gaming, Indian gaming, Research | Tagged , | Leave a comment