Michigan SCT Holds KBIC Workers Did Not Violate State Tobacco Law When Transporting Unstamped Smokes

Here is the opinion and the materials in People v. Magnant:

Mich SCT Opinion

Davis Brief

Magnant Brief

State Brief

Magnant Reply

Davis Reply

Prior post here.

Six ICWA/MIFPA Cases in Three Months in Michigan

Not sure what’s going on, but here are the (unpublished) cases so far this year:

In re King/Koon7-Jan2020Court of AppealsGrand TraverseMichiganUnNotice
In re K. Nesbitt11-Feb2021Court of AppealsHillsdaleMichiganUnNotice
In re Stambaugh/Pantoja11-Feb2021Court of AppealsSt. JosephMichiganUnNotice
In re Banks18-Feb2021Court of AppealsWayneMichiganUnNotice
In re Dunlop-Bates18-Feb2021Court of AppealsLivingstonMichiganUnActive Efforts
In re Cottelit/Payment18-Mar2021Court of AppealsChippewaMichiganUnQualified Expert Witness

For comparison, Michigan had 6 cases total in 2020, 7 in 2019, 8 in 2018. These counts include both published and unpublished cases–while I kind of understand why the Court of Appeals designates so many as unpublished, it obscures how many MIFPA cases we have if we only count published cases.

Michigan COA Holds Mackinac Tribe Member May Have Treaty Rights

Here is the opinion in People v. Caswell:

Opinion

An excerpt:

Defendant, Walter Joseph Caswell, is a member of the Mackinac Tribe of Odawa and Ojibwa Indians (the “Mackinac Tribe”). In October 2018, a Department of Natural Resources (DNR) conservation officer cited defendant for spear fishing in a closed stream in violation of MCL 324.48715 and MCL 324.48711.1 Defendant moved to dismiss the charges on the ground that he was a member of an Indian tribe or band granted hunting and fishing rights by 1836 and 1855 treaties with the United States federal government. The Mackinac County district court granted defendant’s motion upon concluding that the Mackinac Tribe was entitled to rights under the relevant treaties. On appeal from the prosecutor, the Mackinac County circuit court reversed on the ground that the Mackinac Tribe was not federally recognized and that federal tribal recognition is a matter for initial determination by the United States Department of the Interior. We granted defendant’s delayed application for leave to appeal. For the reasons explained below, we vacate the circuit court’s order and remand the case to the district court for an evidentiary hearing consistent with this opinion.

Briefs:

353537_13_01.pdf-AT Brf

353537_16_01.pdf-AE Brf

353537_19_01.pdf-Reply

353537_29_01.pdf–Amicus 1

353537_32_01.pdf-Amicus 2

Michigan COA Holds State Courts Have Jurisdiction in Reservation Property Dispute

Here is the opinion in Smith v. Landrum (Mich. Ct. App.):

Opinion

An excerpt:

The question presented in this quiet title action is whether a state court has subject-matter jurisdiction to decide an easement dispute in favor of a non-Indian on land owned by a non-Indian when the land is located on an Indian reservation. The trial court concluded that it did not, and therefore entered a final order granting defendants’ motion for summary disposition under MCR 2.116(C)(4) (lack of subject-matter jurisdiction).1 For the reasons outlined below, we hold that the trial court had subject-matter jurisdiction over the easement dispute. We therefore reverse the order granting defendant’s motion for summary disposition, and remand for further proceedings.

Federal Court Denies Habeas Petition of Sault Tribe Member Incarcerated for Violating State Cannabis Law

Here are the materials in MacLeod v. Braman (E.D. Mich.):

1 Habeas Petition

19 DCT Order Denying Motion to Appoint Counsel

20 DCt Order

Michigan COA decision:

Opinion

Michigan SCT to Hear Appeal of KBIC Employees Charged with Criminally Violating State Tobacco Transportation Law

Here are materials so far in the cases captioned People v. Davis and People v. Magnant:

Majority Opinion [Mich. COA]

Dissent [Mich. COA]

SCT Order Granting Review

Circuit Court materials:

Defendants Due Process Motion

Defendants Motion to Quash Information

Defendants Motion to Suppress

People Response to Due Process Motion

People Response to Motion to Quash

People Response to Motion to Suppress

 

ICWA/MIFPA Case from the Michigan Court of Appeals

We are wrapping up a training in Montana where every person in the room answered the ICWA pop quiz question: “Do ICWA protections apply to non-Native parents of Indian children?” correctly. Luckily the Michigan Court of Appeals answered it correctly as well. The Court of Appeals also provides an excellent discussion of why Adoptive Couple v. Baby Girl did not apply to this, and similarly situated cases. There is a lot of useful language in this case for attorneys who continue to run into these issues in trial court across the country.

In re Beers/LeBeau-Beers

The trial court applied the appropriate heightened standards or
burdens when terminating respondent-mother’s parental rights, but it failed to apply them when terminating the parental rights of respondent-father, ostensibly because the Indian heritage of the children is solely through their mother’s bloodline. Respondent-father argues that ICWA and MIFPA standards govern the termination of his parental rights, considering that TB is his biological child and an Indian child, regardless of respondent-father’s personal heritage. We agree and conditionally reverse the termination of respondent-father’s parental rights to TB and remand for proceedings consistent with ICWA and MIFPA, as well as MCR 3.977(G).

In addition, however, the Court correctly analyzed whether Adoptive Couple v. Baby Girl applied to this case, and raised this issue sua sponte “whether the heightened standards of ICWA, MIFPA, and MCR 3.977(G) should apply to the termination of respondent-father’s parental rights when he never had legal or physical custody rights in regard to TB.”:

Given the equivocal nature of Justice BREYER’s concurrence [in Adoptive Couple], it cannot truly be said that a majority of the United States Supreme Court created an inflexible rule for purposes of “continuing custody” analysis under § 1912(f), as well as the analysis of § 1912(d). And even assuming the contrary, it certainly is not clear whether the Supreme Court would impose the rule based solely on whether a parent had physical custody, in the strictest sense of the term under the law, where a custodial-like environment existed on a practical level absent any technical custodial rights.

***

We hold that under the particular facts of the instant case, which are entirely dissimilar to those in Adoptive Couple where the father effectively abandoned the child from birth and even in
utero, the beyond-a-reasonable-doubt standard applies to the termination of respondent-father’s parental rights, although he never had legal or physical custody rights, as those terms are legally employed. When DHHS’s petition was filed in August 2015 and for a period thereafter, respondent-father, respondent-mother, and TB lived together as a familial unit wherein respondent-father was providing some care and custody for TB. And petitioner was providing
reunification services. The family unit dissolved only when TB was removed by court order, although respondents remained together. The removal of TB discontinued the custodial arrangement that had existed with respect to both respondents and TB, if not in law, in practice.

Michigan COA Rules Former Tribal Official with Criminal Record Not Eligible for State and Local Office

Here is the opinion in Paquin v. City of St. Ignace:

unpublished opinion

An excerpt:

In light of the foregoing, we hold that the Tribe constitutes a local government and that plaintiff’s employment with the Tribe constituted employment in “local, state, or federal government” for purposes of Const 1963, art XI, § 8. Such a holding does not diminish or undermine the Tribe’s inherent sovereign authority. “[S]tate laws are generally not applicable to tribal Indians on an Indian reservation except where Congress has explicitly provided that state law shall apply.” Huron Potawatomi, Inc v Stinger, 227 Mich App 127, 132; 574 NW2d 706 (1997). In the instant case, no one is seeking to prohibit plaintiff from running for a position in the Tribe or otherwise to interfere in the Tribe’s regulation of its internal matters. Instead, Const 1963, art 11, § 8 is being applied to prohibit plaintiff from running for a position on defendant’s city council. In other words, the constitutional provision is being used to assess the qualification of a potential candidate for a position on the city council of a Michigan municipality, not a position in the Tribe. “The members of the various Indian tribes are citizens of the United States and citizens of the state within which they reside.” Mich United Conservation Clubs v Anthony, 90 Mich App 99, 109; 280 NW2d 883 (1979) (citations omitted). In seeking to run for an elective position in a Michigan city, plaintiff was acting in his capacity as a Michigan citizen rather than a member of the Tribe. As a Michigan citizen, plaintiff is subject to the same laws as other Michigan citizens when seeking to run for an office in a Michigan municipality. See generally, Mescalero Apache Tribe v Jones, 411 US 145, 148-149; 93 S Ct 1267; 36 L Ed 2d 114 (1973) (“Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State.”).

Michigan Court of Appeals Decides MIFPA Application to Removal of Child from the Home

Here is the opinion in In re Detmer/Beaudry. The question of whether an involuntary removal of a child triggers ICWA if the child is not placed in “foster home or institution or home of a guardian or conservator” 25 U.S.C. 1903(1)(i) is one that comes up pretty regularly. This case addresses that question under the Michigan Indian Family Preservation Act (MIFPA) and concludes that when a child is removed from respondent mother and placed with his non-respondent father, that removal still triggers MIFPA’s protections. The court focused on the dictionary definition of “removed” and found:

Thus, we understand “removed” in MCL 719B.15(2) to mean the instance when a court orders that a child be physically transferred or moved from the care and residence of a parent or custodian to the care and residence of some other person or institution. Based on this understanding, it becomes clear that the trial court erred with respect to AB. Over respondent mother’s objection, the trial court ordered that AB be physically placed with his nonrespondent father. AB had previously resided with respondent-mother and spent every other weekend with his nonrespondent father. The trial court’s order moved AB’s residence to his nonrespondent father’s home and conditioned respondent-mother’s visitation on the discretion of DHHS. Under our reading of MCL 712B.15(2), the trial court “removed” AB from respondent-mother.

***

Because AB was removed from a parent, the trial court was required under MIFPA to make findings on whether active efforts were made to provide remedial services, whether those efforts were successful, and whether respondent-mother’s continued custody of AB posed a risk of emotional or physical harm to the child. MCL 712B.15(2). The trial court was similarly required to hear testimony of a qualified expert witness concerning these matters. MCL 712B.15(2). The trial court made no such findings and heard no such testimony, and this was reversible error.

The ICWA Appellate Clinic at MSU Law co-authored the Tribe’s brief in this case.