Michigan Court of Appeals

Here:

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

February 28, 2012Matthew 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.

Yet Another Michigan Conditional Affirmation ICWA Case

December 7, 2011December 7, 2011Kate Fort6 Comments

In re King/Little, here.

From the opinion:

Petitioner responds to this issue by stating that, after respondent signed the form indicating that the children were eligible for membership in the Cherokee Tribe, it did comply with the requirements of the ICWA by sending the proper notice to both the Cherokee Boys Club and the Cherokee Nation. Petitioner contends it received responses from both organizations indicating that the children were not considered “Indian” in the Cherokee Nation and were not eligible for membership. Petitioner further contends that all the proper paperwork is on file at the Office of the Prosecuting Attorney and the Department of Human Services and invites this Court to view the failure to place this information on the trial court record as harmless error. However, we may not expand the record on appeal. MCR 7.210(A)(1).

Cherokee Boys Club?!? After all these years, how many different ways can DHS mess up notice and still defend their practice? There are only three federally recognized Cherokee tribes, and not one of them is the Cherokee Boys Club.