Michigan Bar Journal Article on the Michigan Indian Family Preservation Act

Norika L. Kida Betti and Cameron Ann Fraser have published “Michigan Indian Family Preservation Act at Seven Years” in the November 2019 issue of the Michigan Bar Journal.

Michigan COA Reverses ICWA Notice: Casual Disregard of ICWA/MIFPA by Wayne County Court and State Workers/Attorney

Here is the opinion in In re Harrell/Harrell-Marls:

In re Harrell

An excerpt:

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).