Michigan COA Published Opinion on MIFPA/ICWA and Transfer to Tribal Court

Here.

Appellant, Grand Traverse Band of Ottawa and Chippewa Indians (the “tribe”), appeals by leave granted the circuit court’s order denying its request to transfer adoption proceedings to the tribal court pursuant to section 7 of Michigan’s Indian Family Preservation Act (the “MIFPA”), MCL 712B.1 et seq. We conclude that the circuit court committed error warranting reversal in denying the tribe’s request to transfer these proceedings to the tribal court under MCL 712B.7(5). The statute only permits the circuit court to deny a transfer request in two instances, and the circuit court improperly construed the statute to give it greater authority to deny a transfer. We therefore reverse and remand for further proceedings consistent with this opinion.

The long analysis of, and comparison with, the Guidelines is already outdated, as the updated Guidelines (and proposed rule) are more inline with the Michigan Indian Family Preservation Act on when a request for transfer to tribal court can be made and when it can can occur. Ultimately, the COA decided this on a plain language analysis. MIFPA allows denial of transfer in exactly two situations–no tribal court, and undue hardship to present evidence. Given the tribal court in this case was about 5 miles from the state court, the denial of transfer–based on a best interests analysis–just didn’t comply with state law.

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