Here are the materials in Star Tickets v. Chumash Resort Casino:
Michigan Court of Appeals
Qualified Expert Witness ICWA Case out of Michigan Court of Appeals
Here.
In this case, the trial court explicitly recognized that Hillert, the only expert witness at the termination hearing, did not support termination and specifically testified that returning AP andDP to Stenman’s care would not likely result in serious emotional or physical damage to either child. Nonetheless, considering the other evidence presented, the trial court determined that returning AP and DP to Stenman’s care would result in such damage beyond a reasonable doubt. In so doing, the trial court essentially disregarded Hillert’s testimony, contrary to the plain language of 25 USC 1912(f), MCL 712B.15(4), and MCR 3.977(G)(2). Accordingly, we conclude that the trial court failed to adhere to the requirements of ICWA and its Michigan counterparts, and remand for further proceedings with respect to AP and DP.
The testimony of a qualified expert witness under ICWA is part of the necessary proof to demonstrate beyond a reasonable doubt that return of the child to her mother will cause serious emotional or physical damage. Without that testimony, the state has not met its burden to terminate parental rights. If the state cannot provide a QEW that agrees with termination, the court cannot terminate parental rights. In situations like this, where the QEW not only testifies that he does not agree with the termination in this case, nor in termination generally as a tribe, this ought to force the state to look to other long term permanency solutions that don’t require the termination of parental rights, like Michigan’s long term juvenile guardianships, or at ways other states have addressed this issue (like California).
Unpublished Michigan Court of Appeals ICWA/MIFPA Notice Case
While it looks like the State gave notice to Cherokee Nation and Blackfeet Tribe with all the information on the record, and it’s also good the State noticed local Michigan tribes (State is required to contact a tribe in the county where the child is located under 712B.9(3)), the original notice to *all* of the tribes should be in the record. And noticing UKB when a parent claims Cherokee is not something above and beyond, but what the State is supposed to do (along with CNO and Eastern Band):
In addition to the above notifications, the lower court record contains evidence of additional efforts made by DHS to ascertain whether RI and KI had Indian heritage. Specifically, the record contains a response from the United Keetowah Band of Cherokee Indians in Oklahoma indicating that neither RI nor KI were members, although the lower court record does not contain the original notification sent to that tribe. Additionally, the record contains responses from the Saginaw Chippewa Indian Tribe of Michigan indicating that neither RI nor KI were members or eligible for membership, although the lower court record again does not contain the original notifications sent to that tribe. Finally, the record contains copies of both the notifications to, and a response from, the Nottawaseppi Huron Band of Potawatomi Indians; membership in that tribe was also denied. In addition to the above record evidence, DHS reports indicate that notifications were sent to a plethora of other tribes, and that membership in those tribes was denied.
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.
Michigan COA Termination of Parental Rights Case Based on Prior Tribal Court Termination
State court used tribal court termination of parental rights to another child to fulfill a state termination of parental rights. Seems strange there is no mention of ICWA or MIFPA in the case, though it’s possible the father only appealed the reliance the on tribal court termination.
Unpublished Notice Case Out of Michigan
Here.
In this case, the Kalamazoo court did not make an inquiry on the record.
Respondent accurately notes that the circuit court failed to make the required inquiry on the record. However, respondent suffered no prejudice as a result. There is no record evidence to support that the child had any Native American heritage.
Michigan Court of Appeals Affirms Mining and Groundwater Discharge Permits at Eagle Mine
Mining Permit decision here.
This case reflects the attempt to balance the potentially conflicting imperatives of exploiting a great economic opportunity and protecting the environment, natural resources, and public health. At issue is appellee Kennecott Eagle’s proposal to develop an underground mine to extract nickel and copper from the sulfide ores beneath the headwaters of the Salmon Trout River in the Yellow Dog Plains in Marquette County.
Groundwater Discharge permit decision here.
The court found the balance on the side of the underground mine. The state decision makers have managed to find at least three alternative grounds for not considering Eagle Rock a place of worship.
News article here.
Michigan COA Conditionally Reverses ICWA Matter for Lack of Proper Notice
Here is the opinion:
An excerpt:
In these consolidated appeals, respondent-mother S. Greene and respondent-father J. Mull each appeal the trial court’s order that terminated their parental rights. The court terminated respondent-mother’s parental rights to all four children under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(iii), and terminated respondent-father’s parental rights to his three children under MCL 712A.19b(3)(b)(ii), (g), and (j). Because the trial court did not follow the precise notice requirements of the Indian Child Welfare Act (ICWA), we conditionally reverse the termination order with respect to both respondents only as to this issue, and remand for further proceedings consistent with this opinion.
Press Release: “Keweenaw Bay Indian Community stands 500 strong at Eagle Mine Court of Appeals Hearing”
Keweenaw Bay Indian Community stands 500 strong at Eagle Mine Court of Appeals Hearing (PDF)
For Release: June 5, 2014
Contact: Donald Shalifoe, Sr., Tribal President
Phone: 906-353-6623
Baraga, MI — About 500 members of the Keweenaw Bay Indian Community (KBIC) 
stood united around the importance of keeping their waters clean from contamination associated with sulfide mining on June 3, 2014 at the Michigan Court of Appeals. Oral arguments were heard involving the Eagle Mine, Michigan’s first permitted sulfide mine in the Upper Peninsula.
“This is the first time in our generation that the community as a whole came together to fight for true sovereignty and engage in spontaneous government participation. The goal of the new moving-forward Tribal Council is to bring transparency and involvement to the Anishinaabeg (the people),” said Donald Shalifoe, Sr., KBIC’s Ogimaa (Chief).
Many tribal members carpooled and traveled about eight hours to line up for the 10:00 a.m. Lansing hearing. KBIC’s remarkable presence overwhelmed the Michigan Hall of Justice whose staff reported it was their largest turn out ever for a court hearing.
Tribal leaders and elders observed the hearing from within the court room, while hundreds watched and listened to the proceedings in an overflow video conferencing room. Traditional drumming and singing resounded outside the building following the hearing.
KBIC’s Vice President Carole LaPointe remarked “it was a very educational experience for our membership and youth.”
The Anishinaabeg band has opposed the Eagle Mine development, located on Treaty of 1842 ceded homeland, since it was first permitted by the Michigan Department of Environmental Quality (MDEQ) in 2006.
Unsettled concerns involve the mining regulatory process, improper permitting and inadequate assessment of impacts to the area environment, cultural resources and water quality, including groundwater contamination and the potential for perpetual acid mine drainage upstream from Lake Superior.
Tribal member Jeffery Loman said “the hearing today is another testimony to the fact that inadequate regulation and collusion between industry and government results in endless litigation.”
One aspect of the evolving case questions what qualifies as a “place of worship” under Michigan’s sulfide mining statute. An initial ruling by Michigan Administrative Law Judge Richard Patterson recommended mitigation of impacts to an Anishinaabeg sacred place, Migi zii wa sin (Eagle Rock), but the MDEQ made a final permit decision asserting only built structures are places of worship.
Discriminatory enforcement of Michigan law has led to substantial degradation to KBIC’s sacred site. This includes obtrusive mine facilities and a decline access ramp into the base of Eagle Rock, non-stop noise and activity, and hindered traditional access and use. Spiritually significant high places like Eagle Rock are used in solitude by the Anishinaabeg for multi-day fasting, vision quest and ceremony.
Despite the passage of the American Indian Religious Freedom Act of 1978, Native people still struggle to protect their remaining sacred places in the face of extractive development agendas. “It is a shame that the United States of America, proudly founded upon values of religious freedom, has trouble guaranteeing this right to all of its nation’s first people,” said tribal member Jessica Koski.
KBIC anticipates a decision from the Michigan Court of Appeals within six months. The Eagle Mine’s timeframe for production start-up is the end of 2014. “While the court deliberates, it is important to remember that regardless of the outcome, we are in the right for standing up for the Yellow Dog Plains. We hope the court understands their decision will have long lasting implications for this place, as well as other areas that are slated for mining,” said Emily Whittaker of Big Bay, Michigan who gathered alongside KBIC and other locally affected residents.
The Michigan Court of Appeals ruling will be an important precedent for additional sulfide mining proposals threatening Michigan’s Upper Peninsula and waters of the Great Lakes.
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Michigan Court of Appeals Opinion on MIFPA and ICWA Notice
The Michigan COA interpreted In re Morris to require a conditional reversal when the parent asserted that his grandmothers were Native and:
It is unclear from the record exactly how or why the caseworker came to the conclusion, reflected in the case service plans, that the minor child is not an Indian child for purposes of 25 USC 1912(a); some elaboration would have been appropriate given the father’s assertion. There is no indication that an inquiry or investigation was made specifically with respect to the father’s claim made at the preliminary hearing, nor an explanation in regard to why the father’s claim was being discounted, assuming it was evaluated or pondered in the first place, such that the ICWA notice requirement was not triggered. Of special concern to us is that the initial case service plan, in its summarization of the trial court’s preliminary hearing order, made no mention of the court’s command that the caseworker “make necessary inquiry and/or notification as to possible Native American Indian heritage.” Furthermore, there is no clear confirmation by the court itself that its initial concerns of whether the child is an Indian child were alleviated. Moreover, the father’s assertion concerning the Native American heritage of the minor child’s paternal great-grandparents fits within the parameters of the examples given by the Morris Court, quoted above, that would trigger the need to serve notice. Morris, 491 Mich at 108 n 18. Finally, petitioner itself concedes that conditional reversal is necessary in order to determine whether the minor child is an Indian child under the law.
Opinion here.
Turtle Talk 
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