Monday, July 6, 2009

Sovereign Immunity Does Not Apply to Quiet Title Action Regarding Real Property Subject to Continuing State Court Jurisdiction

A new case from division I, Stillaguamish Tribe of Indians v. Smale, docket # 6239-4, held that the state, not the tribe, had continuing jurisdiction over a piece of real property, even after the property was deeded to the tribe.
In this case, the plaintiffs filed a quiet title action in state court claiming they had acquired the property through adverse possession from the previous non-Indian owners.
The defendants then transferred ownership of the land to the Stillaguamish Tribe through a statutory warranty deed. The plaintiffs then joined the Tribe as a defendant. The defendants claimed sovereign immunity.
The doctrine of sovereign immunity states that an Indian tribe is immune from suit unless: 1) it has expressly waived its immunity; or 2) the US Congress has expressly abrogated the tribe’s sovereign immunity.
The Tribe argued that, because of the tribe’s sovereign immunity, the state court had no jurisdiction over the tribe, and therefore the tribe could not be sued.
The plaintiffs, on the other hand, argued that the basis of the state court’s jurisdiction over the matter was not personal, or in personam, jurisdiction over the tribe. Rather, it was in rem jurisdiction over the property. Sovereign immunity, therefore, did not apply.
The trial court found for the plaintiffs. The appellate court affirmed.

Ex-Husband Should Have Immediately Informed Ex-Wife that he was Receiving Retirement Benefits

A new case from Division III, In Re Marriage of Buchanan, awarded military benefits to the former spouse and reimbursement for health insurance costs that could have been covered by the military. It also awarded attorney’s fees based on intransigence.
The parties were married for twenty years, during which time the husband accrued medical and retirement benefits from the military. The decree of dissolution awarded the wife half the community interest in the husband’s military retirement.
About three years after the Husband retired, the now ex-wife learned that the now ex-husband was receiving the benefits. Litigation ensued. The trial court awarded the ex-wife the benefits and attorney’s fees.
Benefits included an annuity, payable upon the Husband’s death, and health insurance. To ensure that the ex-wife got the benefits, the trial court ordered the ex-husband to remove his current wife as the designated survivor and replace her with the ex-wife.
The trial court also ordered the ex-husband to reimburse the ex-wife the insurance premiums she paid during the three years she should have been insured by the military.
Finally, the trial court ordered the father to pay attorney’s fees based on intransigence – he should have notified the ex-wife as soon as he began receiving the benefits.
The appellate court affirmed.

In a Dependency, Absent a Showing of Actual Harm, DSHS Is Required to Provide Therapeutic Visitation Between the Children and the Mother

A new case from division three, in re Dependency of Tyler L. and Brenden B, No. 27033-5-III and No. 27034-3-III, found that the trial court’s failure to order therapeutic visitation between the children and their mother was an abuse of discretion.
Absent a showing of actual harm, the court reasoned, DSHS was required to provide therapeutic visitation services. Such services would assist with the child’s attachment disorder, help both children deal with stress generated by the visits, and help remedy parental deficiencies.