Michigan Court of Appeals

Michigan COA: “Indian in my family” Not Enough to Invoke ICWA

Matthew L.M. Fletcher

Here is the unpublished opinion in In the Matter of Plaunt.

An excerpt:

Second, respondent contends that the trial court erred and violated his procedural due process rights because it failed to follow the requirements of the Indian Child Welfare Act. We disagree. Under 25 USC 1903(4), an “Indian child” is “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) . . . eligible for membership in an Indian tribe and . . . the biological child of a member of an Indian tribe.” See also MCR 3.002(5). The trial court properly questioned respondent and the child’s mother concerning membership or eligibility for membership in an Indian tribe or band. The child’s mother indicated that the child did not belong to any Indian tribe or band. Respondent’s vague statement that he had “Indian in my family” but did not know if he was a member or eligible for membership in any Indian tribe or band was not sufficient to put the court on notice that the child was a member or eligible for membership in an Indian tribe or band. The fact that respondent may have had some Indian heritage did not make him an “Indian” under 25 USC 1903(3) and did not qualify the child as an “Indian child” under 25 USC 1903(4). See, e.g., In re Johanson, 156 Mich App 608, 613-614; 402 NW2d 13 (1986). The trial court did not err in concluding that the child was not a member or eligible for membership in an Indian tribe or band. Respondent was not denied his procedural due process rights.

MI Court of Appeals Judge Brian Zahra Appointed MI Supreme Court

Kate Fort

From the Michigan Lawyer Blog.  Judge Zahra was appointed to the Court of Appeals in 1999 by then-Governor Engler.  Prior to that he was a judge in Wayne County.  He does not appear to have participated in any decisions on the Indian Child Welfare Act or other state Indian law cases.

Also from the Oakland Press:

LANSING (AP) — Gov. Rick Snyder has named Appeals Court Judge Brian Zahra (ZAR’-uh) to the Michigan Supreme Court.

Zahra will replace Justice Maura Corrigan, who is stepping down Friday to become director of the state Department of Human Services.

Zahra turned 51 on Sunday. He was appointed to the appeals court in 1999 by GOP Gov. John Engler and elected to the court in 2000 and 2006.

The Northville resident was a Wayne County Circuit Court judge from 1994-98 and an attorney and partner at the Dickinson Wright law firm from 1989-94.

Snyder made the announcement at a news conference Monday morning.

The appointment means the court will keep its 4-3 Republican majority. The move gives Snyder a chance to put his mark on the Supreme Court within days of taking office.

 

Briefs in Big Immunity Case Involving Sault Tribe in Mich. COA

Matthew L.M. Fletcher

Here:

Bates Opening Brief

132 Answer Brief

Bates Reply

Bates Supplemental Authority Brief

The opinion in Bates Associates v. 132 Associates is here.

Michigan COA Affirms Termination of Parental Rights Where Error Harmless

Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion in In re Planck.

Question here is whether the trial court failed to comply with ICWA because the parent didn’t notify the Luce County Circuit Court or some other reason, or whether the trial court just didn’t know about ICWA. Chicken and egg problem, nullified by the harmless error ruling.

Michigan COA Affirms Termination of Parental Rights under ICWA

Matthew L.M. Fletcher

Here is the unpublished opinion: In the Matter of MPT.

Michigan Court of Appeals Upholds Termination of Indian Parent’s Rights

Matthew L.M. Fletcher

Here is the opinion in In re Miller.

An excerpt:

Respondent was a member of an Indian tribe, and before termination of her parental rights could be ordered, the court was required to find evidence beyond a reasonable doubt that continued custody of the child by respondent was likely to result in serious emotional or physical harm to the child under the Indian Child Welfare Act, 25 USC 1912(f). Expert testimony was presented that respondent’s conduct violated the norms and customs of the Chippewa Tribe and that continued custody was likely to result in serious emotional harm to the child. Accordingly, the court did not clearly err in finding that termination was in the best interest of the child.

Mandamus Suit against Mich. AG to Force Tribal Compliance with State Liquor Laws Fails

Matthew L.M. Fletcher

Here is the Michigan Court of Appeals decision in Devlin v. Attorney General — Devlin vs Attorney General MI Ct of App.

An excerpt:

On June 3, 2008, plaintiff filed his complaint for mandamus against attorney general Michael A. Cox in his official capacity. Plaintiff averred that casinos and other businesses owned by Indian tribes in Michigan are selling spirits, beer, and wine on their premises, but are doing so without a license issued by the Michigan Liquor Control Commission as required by law. Plaintiff further averred that defendant, as the State’s chief law enforcement officer, had knowledge of these “tribal liquor license violations.” And, although “hundreds of thousands of felony violations have been committed by Michigan tribal casino management” . . . defendant “fails and refuses to take any corrective action, whether it be a civil suit against the tribes for a declaratory and injunctive Order . . . or criminal actions against tribal management.” Plaintiff alleged that he and other travelers on State highways are in danger because “[a]ll of the tribal casinos are located within a minute or two drive to State highways” and underage customers, as well as intoxicated persons, are likely to leave the casinos and drive on State highways. Accordingly, plaintiff alleged, defendant’s failure to enforce State liquor licensing laws under these circumstances constituted a clear abuse of discretion and warranted the issuance of a writ of mandamus to command him to act.

Here was the complaint filed in 2008.

Michigan COA Decides ICWA Case — Conditional Remand

Matthew L.M. Fletcher

Here is the unpublished opinion in In re Toia. An excerpt:

Under the circumstances, and because we conclude that the trial court properly terminated respondents’ parental rights under Michigan law, we conditionally affirm the trial court’s termination order, but remand for further proceedings to ensure compliance with the ICWA notice provisions and a determination whether the ICWA applies, consistent with the procedure prescribed in In re IEM, supra at 450. If the trial court determines that appropriate notice was provided and that the ICWA does not apply, the termination orders may stand. However, if the trial court determines that the ICWA does apply, the trial court shall conduct such further proceedings as are consistent with the act.

Marquette General Hospital v. Chosa — Bizarre Fight over a Hospital Bill

Matthew L.M. Fletcher

The case involves an inmate of the Baraga County jail who is a member of the Keweenaw Bay Indian Community. Apparently, the hospital and the county asked the tribe to reimburse for costs associated with a cardiac event, but too late for any federal or tribal medical cost reimbursement. And so now they’re fighting over who pays the bill (it looks like the county).

Here is the opinion, out of the Michigan Court of Appeals. An excerpt:

Baraga County contends that the Hospital did not take reasonable efforts to secure alternative payment almost entirely because the Hospital did not seek repayment from the Keweenaw Bay Indian Community. Baraga County contends that the Hospital should have known about the possibility of Indian Health Care for Chosa, but it provides no evidence in support of this assertion beyond the somewhat bizarre request for this Court to “take judicial notice of the fact that Plaintiff-appellant routinely bills the Keweenaw Bay Indian Community (KBIC) for reimbursement for medical services provided to tribal members.” Baraga County apparently bases its assertion on the additional contention that “while it may not be politically correct to say so it is objectively true that Mr. Chosa’s appearance in no way disguises his Native American heritage.” The Hospital, more reasonably, points out that Baraga County is effectively urging this Court to adopt a policy of acting on assumptions based on physical appearance. In any event, the evidence of record shows that Baraga County was aware of Chosa’s heritage and that Baraga County informed the Hospital of this in a letter dated September 26, 2006. The record contains no evidence whatsoever that the Hospital knew or should have known anything about Chosa’s heritage earlier than that date.

Michigan Court of Appeals Decides ICWA Notice Case

Matthew L.M. Fletcher

The case is In the Matter of Mayberry (unpublished opinion) and the proper notice went out to the Grand Traverse Band, the Muscogee (Creek) Nation, and the BIA. See how easy that was, California?

In this case, the trial court record shows that notice was given to the Grand Traverse Band of Ottawa and Chippewa Indians, the Muscogee (Creek) Nation, and the Midwest Bureau of Indian Affairs, requesting written verification of the tribal status of the minor child. Responses to these notices were received from the tribes. The Grand Traverse Band of Ottawa and Chippewa Indians noted that the minor child was a non-member and ineligible for Ottawa-Chippewa Indian status. The Muscogee (Creek) Nation stated that the tribal records were examined and the minor child was not considered an Indian child in relationship to the Muscogee (Creek) Nation as defined in the ICWA. These determinations were conclusive. See In re Fried, supra at 540, In re TM, supra 191-192, and 44 Fed Reg 67584 (1979).