Here.

Here.
There has been a small spate of Uniform Child Custody Jurisdiction Enforcement Act cases this year involving family law cases and tribal courts. In most states, tribes are considered “states” for the purposes of determining a child’s “home state” jurisdiction. These are generally (but not always) non-ICWA cases like parental custody and child support. These kind of cases seem rare to practitioners, but nationally there’s a fair number of them (and will continue to be the kind of reasoning tribal and state judges will need to engage in to as more and more cases arise in this subject area).
McGrathBressette (Michigan, child custody v. child protection)
MontanaLDC (Montana, child custody)
NevadaBlount (Nevada, third party custody)
(And yes, I have a pile of ICWA cases to share with you that have built up in the last month or so.)
Here is the opinion and the materials in People v. Magnant:
Prior post here.
Not sure what’s going on, but here are the (unpublished) cases so far this year:
In re King/Koon | 7-Jan | 2020 | Court of Appeals | Grand Traverse | Michigan | Un | Notice |
In re K. Nesbitt | 11-Feb | 2021 | Court of Appeals | Hillsdale | Michigan | Un | Notice |
In re Stambaugh/Pantoja | 11-Feb | 2021 | Court of Appeals | St. Joseph | Michigan | Un | Notice |
In re Banks | 18-Feb | 2021 | Court of Appeals | Wayne | Michigan | Un | Notice |
In re Dunlop-Bates | 18-Feb | 2021 | Court of Appeals | Livingston | Michigan | Un | Active Efforts |
In re Cottelit/Payment | 18-Mar | 2021 | Court of Appeals | Chippewa | Michigan | Un | Qualified 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 These counts include both published and unpublished cases–while I kind of understand why the Court of Appeals designates so many as unpublished, it obscures how many MIFPA cases we have if we only count published cases.
Here is the opinion in People v. Caswell:
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:
Here is the opinion in Smith v. Landrum (Mich. Ct. App.):
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.
Here are the materials in MacLeod v. Braman (E.D. Mich.):
19 DCT Order Denying Motion to Appoint Counsel
Michigan COA decision:
Here are materials so far in the cases captioned People v. Davis and People v. Magnant:
Circuit Court materials:
Defendants Motion to Quash Information
People Response to Due Process Motion
People Response to Motion to Quash
People Response to Motion to Suppress
Here is “Legal gears on Nestle water cases grind slowly in Michigan” from MLive.
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.
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.
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