Michigan Court of Appeals – Page 8

Michigan COA Decides ICWA Case — Conditional Remand

August 19, 2009Matthew 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Here is the unpublished opinion in In re Toia.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

May 31, 2009May 31, 2009Matthew 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

April 5, 2009Matthew 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).

Mich. COA Decides ICWA-Related Case

February 13, 2009Matthew L.M. Fletcher

The opinion in In the Matter of Coyle is here. The Court of Appeal concluded that ICWA’s tribal notice requirements did not apply. An excerpt:

Finally, respondent argues that petitioner should have notified the Cherokee tribe, and there was insufficient evidence that any tribe was notified. ***

In the present case, respondent stated during the preliminary hearing that her grandparents were Cherokee Indians. However, she never mentioned the Cherokee tribe again and never objected to references to the Chippewa Tribe of Sault Ste. Marie in several later hearings. Her statement that her father tried to get her grandparents’ tribe involved in 2003, followed by references to the Chippewa tribe trying to get involved in 2003, strongly indicated that her grandparents’ tribe was actually the Chippewa and she was mistaken when she called it Cherokee. Respondent did not give the trial court reason to believe her children might actually be members of a Cherokee tribe, in light of her repeated failure to object to references to the Chippewa and failure to request that another tribe or the Bureau of Indian Affairs be notified. Respondent also did not question petitioner’s assertions that the Chippewa tribe was contacted. Petitioner’s unchallenged assertions constitute sufficient evidence that notice occurred. The trial court did not commit any error requiring reversal.

Michigan Supreme Court Grants Leave to Appeal in In re Lee

December 23, 2008December 23, 2008Matthew L.M. Fletcher

This is an ICWA case involving the meaning of “active efforts” under Michigan law. The petitioner is the Michigan Dept. of Human Services, and tribe involved is the Sault Tribe. The docket number is 137653. Here are the opinions from the Michigan Court of Appeals:

in-re-lee-per-curiam-opinion

in-re-lee-partial-concurrence-dissent

From the order granting leave to appeal:

On order of the Court, the application for leave to appeal the October 16, 2008 judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall include among the issues to be briefed (1) whether the term “active efforts” in 25 USC 1912(d) requires a showing that there have been recent rehabilitative efforts designed to prevent the breakup of that particular Indian family; and (2) whether the “beyond a reasonable doubt” standard of 25 USC 1912(f) requires contemporaneous evidence that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child before parental rights may be terminated.

Continue reading →

Soo Tribe v. Bouschor et al. — Michigan Court of Appeals

November 19, 2008Matthew L.M. Fletcher3 Comments

The Michigan Court of Appeals affirmed, for the most part, the trial court’s decisions not to grant summary disposition of the various claims against former Sault Tribe chairman Bernard Bouschor and several others (Dan Green, Paul Shagen, Jim Jannetta, etc.) involving their severance packages in 2004. The claims against Miller Canfield appear to have been dismissed.

So I suppose the case will go to trial, unless settled. Interesting reading, to say the least….

Here is the opinion.

Bay Mills Resort & Casino v. Gerbig — Gambling Debt Suit

October 9, 2008Matthew L.M. Fletcher

The Michigan Court of Appeals held that Michigan law relating to accounting and cash handling does not apply to Indian gaming operations, the defense raised by a defendant in a claim by the casino for $23,000 in gambling debts. The trial court had awarded $4000. The COA raised that to the full amount. Here is the unpublished opinion.

Michigan Court of Appeals Ruling in ICWA Case

September 29, 2008September 29, 2008bnewland2 Comments

We are told that the following report contains numerous inaccuracies, so please take the description of the case with a grain of salt. The majority opinion is here. The concurring/dissenting opinion is here.

From MIRS:

Federal Law Keeps Indian Mother, Baby Together

A Native American mother with a history of dating abusive men will be allowed to keep her newborn daughter, despite the cries of state social workers that a reunification could put the baby in physical and emotional danger.

The Court of Appeals ruled today that [Mother] should be given custody of 11-month-old [Daughter] based on a strict federal law the stresses the preservation of Indian households.

A ruling signed by appellate judges William WHITBECK and Jane MARKEY reverses a lower court ruling by saying that social workers didn’t do everything it could have under the Indian Child Welfare Act (ICWA) to keep the family together. Continue reading →