Michigan Court of Appeals

Michigan COA Decides ICWA Notice Trigger Case

Matthew L.M. Fletcher1 Comment

Here is the opinion:

In re Warsinski

An excerpt:

Here, the only evidence that the child had any tribal membership was the testimony of a DHS worker who stated that respondent once mentioned that she had recently  discovered that she had Native American heritage. Respondent herself did not provide any testimony as to any Native American heritage on her part or on the part of the child. Indeed, the statement made to the DHS worker was entirely unsubstantiated. As such, it was not sufficiently reliable information of the child’s Indian heritage to trigger the requirements of the ICWA.

Michigan COA Applies Victimless Crimes Exception to Exclusion of State Criminal Jurisdiction in Indian Country

Matthew L.M. Fletcher

In other words, the Michigan COA held that the state may prosecute non-Indians for engaging in drug-related criminal activity inside the Hannahville casino. Here is the opinion in People v. Collins:

Collins Opinion

Our previous post on this case is here.

Michigan COA Issues Conditional Reversal in ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion in In re Howard.

An excerpt:

Where a respondent’s parental rights have otherwise been properly terminated under Michigan law, but the petitioner and the trial court failed to comply with the ICWA’s notice provision, the proper remedy is to conditionally reverse and remand for resolution of the ICWA notice issue. In re Morris, 491 Mich at 121. If the trial court conclusively determines that ICWA does not apply to the involuntary child custody proceeding—because the children are not  Indian children or because the properly noticed tribe does not respond within the allotted time—the trial court’s order terminating parental rights is reinstated. If, however, the trial court concludes that ICWA does apply to the child custody proceeding, the trial court’s order terminating parental rights must be vacated and all proceedings must begin anew in accord with the procedural and substantive requirements of ICWA. In re Morris, 491 Mich at 120-121.

Casino Expansion Ballot Proposal Blocked by Michigan Court of Appeals

Kate Fort

Coverage here.

Opinion here.

IPR: Emmet County Bear Hunting Conviction Overturned (Mich. Inland Treaty Rights Implications)

Matthew L.M. Fletcher

Here is the unpublished opinion in People v. Levigne:

Mich COA Opinion

And the IPR report.

An excerpt:

The Michigan Court of Appeals says it was legal for hunting guides to help with an off-season bear hunt in Emmet County back in September of 2010. The guides were assisting Todd Yoder, an American Indian hunter.

For Yoder, the hunt was clearly legal because of tribal hunting and fishing rights. But his two assistants are not Native American, and by their own admission, their help was vital to the success of the hunt. Their dogs ran the bear up a tree, where it was shot. Emmet County court found the guides, William McNeight and Blaine Levigne, guilty of “taking” a bear in the off-season.

But this week an appeals panel reversed that decision. The judges say the state law that applies to this case says the “taking” of an animal involves a firearm, crossbow, or bow and arrow. So the guides could help, they just couldn’t shoot.

Ironies of the Patchak Decision

Matthew L.M. Fletcher2 Comments

Here are some interesting ironies of the reasoning and outcome in Patchak.

First, the prudential standing of David Patchak to sue the federal government to protect the rural character of his community (and related objections) — under Michigan law (I think) Patchak would have a much more difficult proof than he does under the conglomeration of statutes Patchak is using (APA, QTA, and I guess IGRA). Just a few weeks ago, the Michigan Court of Appeals (Tobin v City of Frankfort — thanks to B.A. for pointing this one out for me) rejected the standing of a landowner to challenge a development in Benzie County. Here were the injuries complained of:

Intervenor argues that it has established through its members’ affidavits that it has standing to intervene and pursue its member’s claims. The relevant declarations by FOBB members in their September 2000 affidavits primarily detail concerns about (1) increases in population, traffic, noise levels, lights, air pollution, and property taxes; (2) decreases in home values, aesthetics of the neighborhood, and environmental value caused by tree and vegetation removal attributable to the development; and (3) the potential presence of commercial establishments. The generalized concerns relating to environmental impacts, population increases, aesthetics, and pecuniary harm do not suffice to demonstrate “special damages . . . different in kind from those suffered by the community, so as to qualify [intervenor] as an aggrieved party.” Joseph, 5 Mich App at 571. Alternately phrased, development-related aesthetic changes, population increases, environmental impacts, and pecuniary harm will be experienced by other community members to the same extent as affiants.

But that’s not prudential standing, you say. True, but what an irony. This is Patchak’s list of alleged injuries in a nutshell:

To establish his standing to bring suit, Patchak contended that he lived “in close proximity to” the Bradley Property and that a casino there would “destroy the lifestyle he has enjoyed” by causing “increased traffic,” “increased crime,” “decreased property values,” “an irreversible change in the rural character of the area,” and “other aesthetic, socioeconomic, and environmental problems.”

Justice Kagan’s majority opinion then uses the Cohen Handbook as support for the proposition that since Interior takes land into trust for the benefit of Indian tribes (often economic benefit), then anyone seemingly opposed to tribal economies has standing (sorry for the long block quote):

Patchak’s suit satisfies that standard, because §465 has far more to do with land use than the Government and Band acknowledge. Start with what we and others have said about §465’s context and purpose. As the leading treatise on federal Indian law notes, §465 is “the capstone” of the IRA’s land provisions. F. Cohen, Handbook of Federal Indian Law §15.07[1][a], p. 1010 (2005 ed.) (hereinafter Cohen). And those provisions play a key role in the IRA’s overall effort “to rehabilitate the Indian’s economic life,” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 152 (1973) (internal quotation marks omitted). “Land forms the basis” of that “economic life,” providing the foundation for “tourism, manufacturing, mining, logging, . . . and gaming.” Cohen §15.01, at 965. Section 465 thus functions as a primary mechanism to foster Indian tribes’ economic development. As the D. C. Circuit explained in the MichGO litigation, the section “provid[es] lands sufficient to enable Indians to achieve self-support.” Michigan Gambling, 525 F. 3d, at 31 (internal quotation marks omitted); see Morton v. Mancari, 417 U. S. 535, 542 (1974) (noting the IRA’s economic aspect). So when the Secretary obtains land for Indians under §465, she does not do so in a vacuum. Rather, she takes title to properties with at least one eye directed toward how tribes will use those lands to support economic development.

So in Michigan, someone who objects to development can’t sue because no one has adopted a statute specifically authorizing such development. In Indian law, someone who objects to tribal development can sue because Congress specifically did adopt a statute authorizing land purchases. The fact that Section 5 exists to remedy incredible tribal land dispossession and poverty is irrelevant.

Second, the land development question — Gun Lake Casino is up and running, and the State of Michigan and the local units of government (well, and the Tribe), are raking in millions upon millions. Patchak wants that to end (because apparently he didn’t care that Wayland’s football players were under a pay-to-play arrangement; more details here).

Continue reading →

In re Al-Sadoon, Unpublished Michigan COA ICWA Case

Kate Fort

Here.

Problematic language here:

The lower court did not inquire about the tribal status of respondent or the children as required by MCR 3.965(B)(2). However, the Michigan Supreme Court has held that it “will not reverse an otherwise proper termination absent a showing that a party suffered an actual deprivation of an important right.” In re Osborne, 459 Mich 360, 369 n 10; 589 NW2d 763 (1999). Respondent has not shown that the lower court’s failure to inquire about tribal status in fact deprived her of an important right. Accordingly, any error in the lower court’s failure to inquire about tribal status was harmless.

Problematic for many reasons, but mainly because the Michigan Supreme Court found in May:

Therefore, before a state court can determine whether ICWA applies to the proceedings, the court must first make the critical determination whether the child is an “Indian child.”

In re Morris, *13

1. At the preliminary hearing, the court must inquire about Indian heritage. While MCR 3.965(B)(2) frames the inquiry in terms of actual tribal membership, sufficiently reliable information of virtually any criteria on which membership might be based is adequate to trigger the notice requirement of 25 USC 1912(a). See part IV(A) of the opinion. As we have noted, not all tribes keep written rolls and it is possible for a parent to be unaware that she or he is a member of a tribe. See n 19 of the opinion and accompanying text.

In re Morris, Appendix (emphasis added).

Michigan COA Conditionally Reverses For Another ICWA Notice Violation

Matthew L.M. Fletcher

Here.

Michigan COA Issues First “Conditional Reversal” in ICWA Notice Case

Matthew L.M. Fletcher

Here:

In re Grochowalski

The Michigan SCT decision instructing lower courts on ICWA notice violations and adopting the “conditional reversal” requirement is here.

Michigan COA Decides Another ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion:

Brent COA Opinion

An excerpt:

The record reveals that petitioner investigated N. Brent’s claim that his uncle was an “Alleganian Indian” by notifying the Bureau of Indian Affairs. Petitioner received a response from the United States Department of the Interior Bureau of Indian Affairs stating that “there is not a federally recognized Alleganian tribe.” On appeal, respondents argue that petitioner should have understood that the Allegany Indian Reservation is not a tribe, but a reservation occupied by Seneca and Cayuga Indians, however there is no indication that respondents conveyed this information to petitioner. Regardless, this issue is now moot. An issue becomes moot when a subsequent event renders it impossible for the appellate court to fashion a remedy. Kieta v Thomas M Cooley Law Sch, 290 Mich App 144, 147; 799 NW2d 579 (2010). The remedy for a violation of the ICWA would be to remand to the trial court “for the purpose of providing proper notice to any interested Indian tribe pursuant to the ICWA.” See In re IEM, 233 Mich App 438, 456; 592 NW2d 751 (1999). The trial court has already terminated its jurisdiction over the children. Because the trial court no longer has jurisdiction, there is no longer any party seeking either foster care placement or termination of parental rights. 25 USCA 1912(a). The remedy of transferring proceedings to a tribe unless the tribe declines jurisdiction, 25 USCA 1911(b), is no longer necessary because the proceedings have been concluded.