It’s a federal requirement to inquire about a child’s tribal citizenship regardless of state law. There are eight states with comprehensive state ICWA laws (the article is missing California and Wisconsin), and that doesn’t count states that have incorporated the regulations into law (Louisiana) or have other elements of ICWA in their laws.
I know the lawyer he is referring to–s/he did not drive 300 miles for every hearing, but when no one would call the tribe back or answer the phone for a hearing s/he sure did.
ICWA is a remedial statute designed to change state practice, not tribal.
It might be worth mentioning that Michigan has twelve federally recognized tribes, and while the total population of Native children might be small, we are still putting Native children in foster care at disproportionate rates–that said, it’s difficult to tell given the issues with our data collection.
And finally, if you are wondering what ICWA/MIFPA inquiry looks like in Wayne County, here is a colloquy from an unpublished case four years ago:
The Court: All right, the petition is authorized. The children have been
placed with relatives. What else? I guess— is that it? Did anyone ever ask
is there any . . . American Indian heritage in this family? American Indian
Ms. Safran (attorney for respondent [parent]): Do you have any Indian heritage in your family?
The Court: Cherokee, Chippewa.
Ms. Safran: There might be some grand— on the grandmother’s side,
what was it? Some time— some type; attenuated.
Ms. Trott (attorney for petitioner [state]): Ms. Topp was told no at the
Ms. Safran: Well, we didn’t have all the parties.
Ms. Topp (case worker): I talked to [respondent], as well, in the police station[,] and I was told no.
Ms. Safran: She doesn’t think—
The Court: You don’t have any kind— are you sure it’s American, or, any
idea what we’re talking about? I mean, what kind of Indian? Cherokees,
Chippewa? I mean, there’s a whole bunch.
Unidentified speaker: I don’t— I don’t know; I can ask.
The Court: And . . . what relative? Grandma? Great-grandma?
Ms. Safran: Your Honor, can we get a date because . . . they want me in
[Judge] Slavens[’ courtroom] and I can’t believe it.
The Court: You’ve got to wait just one second. All right, you can investigate and see. That’s pretty distant; great-grandma is pretty far back. So, I’m
not gonna demand that we send notice.
Ms. Trott: This is on the paternal side? Or maternal? Of which father?
The Court: On the mother’s side or father? It better be a maternal because
right now— all right. You have the right to have this heard by a referee as
to all the children . . . or by a judge with or without a jury, and, of course,
continued right to an attorney at all hearings. We’re setting this for trial?
Ms. Trott: Yes.
In re Harrell, No. 316067, 2014 WL 465718, at *6-7 (Mich. Ct. App. Feb. 4, 2014)