Tenth Circuit Court of Appeals Weekly Roundup – September 19 – 25

Tenth Circuit Court of Appeals Weekly Roundup – September 19 – 25

Carol Berry
9/26/11

Beginning this week Indian Country Today Media Network is introducing a weekly roundup from court cases that have been heard by the U.S. 10th Circuit Court of Appeals over the previous week. This week two cases were heard that have an affect on Indian country.

Tribe to Administer Clinic Despite Hurdles

In a win for tribal self-determination, the Court of Appeals ruled September 19 that the Department of Health and Human Services (HHS) and Indian Health Service (IHS) must contract with the Southern Ute Indian Tribe to operate its own clinic.

The issue of tribal control over the clinic had been in litigation both before and after the tribe assumed management of the Southern Ute Health Center in Ignacio, Colorado on October 1, 2009, when the tribe and IHS agreed the tribe would begin management of the Health Center while issues were resolved that led to the court dispute.

A decade ago the tribe had proposed a transfer of clinic operation from IHS to the tribe under the Indian Self-Determination Act, but the IHS declined the proposal, which led to years-long litigation over the start date of a transfer of management and the amount of contract support costs (CSC) for administration.

In its decision, the federal appeals court upheld the District Court in its ruling that HHS was required to contract with the tribe and agreed the start date of the contract was October 1, 2009, as HHS determined, but it reversed the lower court on the issue of CSC, which had proved a sticking-point in the litigation.

The tribe had requested a determination that the contract start date was October 1, 2005 in order to recover expenses over the four-year period before it assumed management, but the appeals court determined it did not incur costs until October 1, 2009. The court agreed that the tribe is entitled to the full amount by law for CSC, but the issue of whether funds are appropriated remains open.

The Indian Self-Determination Act is to increase tribal participation and direction in federal services to Native communities.

Parental Rights Termination Stands

A Muskogee (Creek) man who objected to the termination of his parental rights lost his argument September 20 in federal appeals court, where a three-judge panel said the issue had been decided in earlier litigation.

The Court of Appeals determined that the state of Oklahoma’s rulings under the Indian Child Welfare Act (ICWA) were not invalid concerning Christopher Yancey’s rights to his 7-year-old son.

Yancey and Tiffany Leatherman, who is not a member of an Indian tribe, were teenagers when the baby was conceived and before the baby was born Leatherman placed him for adoption with an out-of-state couple, Timothy and Tammy Thomas, who have had custody of the boy since his birth.

Yancey and Leatherman disagreed about the termination of his parental rights to permit adoption and the tribe, intervening under ICWA, was upheld by the Oklahoma Supreme Court, but a state appeals court found there was convincing evidence that the child would suffer emotional trauma if he was removed from the Thomas’ custody.

Yancey’s further appeals failed and his parental rights were terminated May 8, 2010, when the Oklahoma trial court found that ICWA had been satisfied and “serious emotional or physical damage” to the child would likely result if he were placed in Yancey’s custody.

Under ICWA, a trial court cannot terminate a parent-child relationship in litigation that would determine a minor child eligible for adoption without mutual parental consent unless continued custody by an Indian parent is likely to result in serious emotional or physical damage to the child.

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