Michigan Court of Appeals

Michigan Court of Appeals Finds Law Adding Wolves to List of Game Species Unconstitutional

Kate Fort

The unpublished opinion is here. The Court found that Public Act 281 (which added wolves to the list of game species) violated the Title-Object Clause of the Michigan Constitution.

PA 281 was passed with the provision that kept portions of certain voter referendums even if voters rejected them: “In other words, even if voters rejected PA 520 and PA 21 at the general election, those portions of the rejected laws that were incorporated into PA 281 would nevertheless survive. … At the November 4, 2014 general election, a majority of voters rejected both PA 520 and PA 21. PA 281, which reenacted portions of voter-rejected PA 520 and PA 21, including the addition of wolf to the list of game species, took effect on March 31, 2015.”

Previous coverage here.

 

Unpublished ICWA Notice Case from Michigan Court of Appeals

Kate Fort

This is a pretty standard unpublished ICWA notice case (there have been 62 so far this year, 53 out of California, 3 from Michigan, 2 from Texas, and 1 each from Indiana, Iowa, Kansas, and New Jersey). We’re posting it for two (three) reasons. From the opinion:

We also reject the father’s challenges to the notices’ failures to include a copy of the petition in LC No. 13–514918–NA. The father cites only 80 CFR 37, 10146, 1153–1154 (2015). This regulation contains the requirements for Native–American tribal notifications under 25 USC 1912(a). In relevant part, the regulation demands that a notice of a pending child custody proceeding contain “clear and understandable language and include” identifying information concerning the child, the tribes “in which the child … may be eligible for membership,” and “[a] copy of the petition, complaint or other document by which the proceeding was initiated.” 80 CFR 37(B)(6)(a)(1)-(3). But the father fails to identify any authority in support of the proposition that the failure to strictly adhere to the requirement that a tribal notice contain a petition copy demands conditional reversal.

(emphasis added).

1. There is still mass confusion over Guidelines v. Regulations, including which is currently effective, their binding nature, and how to cite them. It appears father’s attorney meant to cite 80 Fed. Reg. 10153-4 (Feb. 25, 2015), which are the 2015 Guidelines, not regulations, and not a CFR. The following quote is from the same source, though I admit I was stumped on where that 37 came from–BUT that’s the number of the applicable Federal Register: Volume 80, No. 37. Page 10153, Section B.6(a). But the Court of Appeals didn’t catch this mis-cite either.

2. Yes, the Guidelines are not binding, but the Court of Appeals apparently considered them regulations for the purposes of the opinion. And yes, the 2016 Regulations are not binding until December. However, that’s also not the court’s reasoning. The Michigan Court of Appeals here says there is no remedy for not following the Regulations. That there must be additional authority beyond that of the language of federal Regulations to justify sending it back to the lower court to do the work required–father (mis)cites only binding federal Regulations. This is a small issue in this case–it appears that notice on the whole was proper. But it also demonstrates the problem with the continued lack of an enforcement mechanism in these cases.

3. For the record, either the attorney or the court could have cited to the current Regulations, 23 CFR sec. 23.11(d)(4)(2005)(“a copy of the petition, complaint, or other document by which the proceeding was initiated”), which are currently binding. The attorney or court could also point to the Regulations which will be binding in December and moved that same requirement to sec. 23.111(d)(5)(“a copy of the petition, complaint, or other document by which the child custody proceeding was initiated . . .”), 81 Fed. Reg. 38864, 38871 (June 14, 2016).

Michigan COA Briefs in Sault Tribe v. Blue Cross

Matthew L.M. Fletcher

Here are the briefs in Sault Ste. Marie Tribe of Chippewa Indians v. Blue Cross Blue Shield:

Sault Tribe Brief

BCBS Brief

Sault Tribe Reply

Sharply Split Michigan Appeals Court Rules in Apparent Authority/Sovereign Immunity Question

Matthew L.M. Fletcher

Here are the materials in Star Tickets v. Chumash Resort Casino:

Opinion

Opinion — Gleicher Dissent

Chumash Opening Brief

Star Tickets Brief on Appeal

Reply Brief

Saginaw Chippewa Amicus Brief

Qualified Expert Witness ICWA Case out of Michigan Court of Appeals

Kate Fort1 Comment

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

Kate Fort

Here.

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

Kate Fort1 Comment

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

Kate Fort

Here.

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

Kate Fort1 Comment

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

Kate Fort

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.