At a pretrial hearing, the assistant attorney general, respondent’s attorney, and the trial court discussed whether one of the parties was of American Indian heritage for the purposes of the ICWA:
The Court: All right, the petition is authorized. The children have been placed with relatives. What else? I guess—is that it? Did anyone ever ask is there any . . . American Indian heritage in this family? American Indian heritage?
Ms. Safran (attorney for respondent): Do you have any Indian heritage in your family?
The Court: Cherokee, Chippewa.
Ms. Safran: There might be some grand—on the grandmother’s side, what was it? Some time—some type; attenuated.
Ms. Trott (attorney for petitioner): Ms. Topp was told no at the other—
Ms. Safran: Well, we didn’t have all the parties.
Ms. Topp (case worker): I talked to [respondent], as well, in the police station[,] and I was told no.
Ms. Safran: She doesn’t think—
The Court: You don’t have any kind—are you sure it’s American, or, any idea what we’re talking about? I mean, what kind of Indian? Cherokees, Chippewa? I mean, there’s a whole bunch.
Unidentified speaker: I don’t—I don’t know; I can ask.
The Court: And . . . what relative? Grandma? Great-grandma?
Ms. Safran: Your Honor, can we get a date because . . . they want me in [Judge] Slavens[’ courtroom] and I can’t believe it.
The Court: You’ve got to wait just one second. All right, you can investigate and see. That’s pretty distant; great-grandma is pretty far back. So, I’m not gonna demand that we send notice.
Ms. Trott: This is on the paternal side? Or maternal? Of which father?
The Court: On the mother’s side or father? It better be a maternal because right now—all right. You have the right to have this heard by a referee as to all the children . . . or by a judge with or without a jury, and, of course, continued right to an attorney at all hearings. We’re setting this for trial?
Ms. Trott: Yes.
It is clear from the record that the trial court had information, however slight, “suggesting that [a] child, a parent of [a] child, or members of a parent’s family are tribal members,” which was one of the five situations the Supreme Court listed as “sufficient to trigger tribal notice.” In re Morris, 491 Mich at 108 n 18. Specifically, respondent’s attorney informed the court that “there might be some [Indian ancestry] on the grandmother’s side.” Because it is for the tribes to determine a child’s eligibility for membership, In re Fried, 266 Mich App 535, 540; 702 NW2d 192 (2005), the trial court clearly erred when it found that the possibility of Indian heritage in a great-grandmother of one or more of the minor children was too remote to justify the notice required by the ICWA and MCL 712B.9(1).
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