Chapter 19: Child Custody Proceedings Involving Indian Children

In this chapter . . .

This chapter discusses the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq., as they apply to child protective proceedings. Through ICWA and the MIFPA, Congress and the Michigan Legislature have expressed a strong preference for keeping Indian children with their families and deferring to tribes on matters of child custody and placement. This preference is expressed in the ICWA’s and the MIFPA’s notice, transfer, intervention, and heightened evidentiary requirements.

The ICWA and the MIFPA also apply to delinquency, guardianship, and adoption proceedings. For discussion of these types of proceedings, see the Michigan Judicial Institute’s Juvenile Justice Benchbook, the Institute of Continuing Legal Education’s Michigan Probate Benchbook, and the Michigan Judicial Institute’s Adoption Proceedings Benchbook.

The Michigan Judicial Institute created quick reference materials on proceedings involving an Indian child to assist trial courts with the application of ICWA and MIFPA standards and procedures.

In an effort to “help Michigan judges learn about the federal Indian Child Welfare Act of 1978, the need for states to comply with the Act, and discuss its implementation in Michigan[,]” the State Court Administrative Office (SCAO) developed the Michigan Indian Family Preservation Act of 2013 and Indian Child Welfare Act of 1978: A Court Resource Guide.

The SCAO also created the Indian Child Welfare Act - Michigan Indian Family Preservation Act Reference Comparison Chart to “provide[] a [reference chart for] comparison between key provisions of ICWA and MIFPA.”

The SCAO also developed the State of Michigan ICWA/MIFPA Field Guide to provide trial courts with a quick practical guide through the process of applying the MIFPA and the ICWA standards and procedures for cases involving Indian children.

The Permanency Planning for Children Department of the National Council of Juvenile and Family Court Judges also created a series of checklists “to assist juvenile and family court judges in assuring that the necessary inquiries are being made to determine as early as possible in every case whether the [ICWA] applies.”

19.1Federal, State, and Tribal Collaboration

“Michigan is privileged to be the home of 12 federally recognized Indian tribes and tribal court systems. Michigan has also enjoyed a long history of collaboration between state and tribal courts. The first Tribal State Court Forum, which was created in 1992, resulted in the creation of the “Enforcement of Tribal Judgments” court rule, MCR 2.615, and, most recently, the passage of the Michigan Indian Family Preservation Act of 2012 (MIFPA).” AO 2014-12.

AO 2014-12 also established the Michigan Tribal State Federal Judicial Forum to “build[] on the past spirit of cooperation and [to] creat[e] a dialogue among the state, tribal, and federal judiciaries[.]”

A.Enactment of Michigan Court Rule 2.615

“In May 1996, the Michigan Supreme Court adopted Michigan Court Rule 2.615, which was prompted by proposals from the Indian Tribal Court/State Trial Court Forum and the State Bar of Michigan. MCR 2.615 provides for the enforcement of Indian tribal court judgments. Basically, the rule states that a tribal court judgment is recognized as long as the tribe or tribal court has enacted a reciprocal ordinance, court rule, or other binding measure that obligates the tribal court to enforce state court judgments, and that ordinance, court rule, or other measure has been transmitted to the State Court Administrative Office.” Michigan One Court of Justice Website, Native American Tribal Courts.

B.Michigan Tribal State Federal Judicial Forum

The Michigan Tribal State Federal Judicial Forum was established in 2014 and is comprised of judges from each of Michigan’s federally recognized tribes, state court judges and justices, federal judges, and other officials. See AO 2014-12.

“[The] Michigan Tribal State Federal Judicial Forum was created . . . to provide an ongoing venue for judges from [the tribal, state, and federal] jurisdictions to convene jointly [to] . . . improve working relations and communication. The work of the Forum is important to all Michigan citizens because it affects how our court systems best serve Michiganders: the ongoing issues regarding jurisdiction among the [tribal, state, and federal court systems] and how they can function cooperatively; enforcement of orders between them; and transferring cases to best serve the parties are some examples of what we are working on together.” Michigan Tribal State Federal Judicial Forum, Michigan’s Judicial Success Stories: How Tribal, State, and Federal Courts Are Collaborating to Benefit Michigan Families, p 2.

“Priorities for the Forum include addressing child welfare issues and ensuring that our respective court systems are meeting the needs of Native American children and families in a way that is culturally sensitive and appropriate. In particular, making certain that our courts are trained in the federal Indian Child Welfare Act (1978) and the Michigan Indian Family Preservation Act (2012) is one of our initiatives.” Michigan’s Judicial Success Stories: How Tribal, State, and Federal Courts Are Collaborating to Benefit Michigan Families, supra.

The Forum released a report highlighting their cooperative efforts to better meet the needs of Native American children and families. The report, Michigan’s Judicial Success Stories: How Tribal, State, and Federal Courts Are Collaborating to Benefit Michigan Families, highlights success stories to “spotlight the importance of judicial leadership and collaboration between courts, as well as the positive and lasting impact of these relationships on communities, families, and children across the state.” Michigan’s Judicial Success Stories: How Tribal, State, and Federal Courts Are Collaborating to Benefit Michigan Families, supra.