“The court in any voluntary or involuntary child-custody proceeding involving an Indian child must determine the residence and domicile[1] of the Indian child.”2 25 CFR 23.110(a).
State jurisdiction. A State court has jurisdiction over a child custody proceeding involving an Indian child in three situations:
(1) Concurrent jurisdiction where the Indian child is domiciled or resides off an Indian reservation3 and is not a ward of the Tribal court,4 see 25 USC 1911(b), MCL 712B.7(3);
(2) A Tribal-State agreement where the Tribe allocates jurisdiction to the state, 25 USC 1919(a), MCL 712B.31(1); and
Note: A Tribe or a State may revoke a Tribal-State agreement by providing a 180-day written notice to the other party. 25 USC 1919(b); MCL 712B.31(2)(a). Unless otherwise provided in the agreement, a revocation will not impact an action or proceeding over which the State court has already assumed jurisdiction. 25 USC 1919(b); MCL 712B.31(2)(b).
(3) Limited emergency jurisdiction where the State has removed the Indian child in an emergency situation to prevent imminent physical damage or harm to the Indian child (applicable to both reservation-resident Indian children temporarily off the reservation or non-reservation-resident Indian children).5 25 USC 1922; MCL 712B.7(2);MCR 3.974(C)(1); Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, C.1 (2016). See also 25 CFR 23.110; 25 CFR 23.113.
Note: The emergency jurisdiction terminates when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the Indian child. 25 USC 1922; MCL 712B.7(2); MCR 3.905(B); 25 CFR 23.113(a).
Tribal court6 jurisdiction. A Tribe has jurisdiction over a child custody proceeding in three situations:
(1) The Indian child is domiciled or resides on an Indian reservation where the Tribe exercises exclusive jurisdiction over child-custody proceedings (unless federal law provides otherwise), 25 USC 1911(a); MCL 712B.7(1); MCR 3.002(6); 25 CFR 23.110(a);
(2) The child is a ward of the Tribal court (regardless of the child’s domicile or residence, or subsequent change in the child’s residence or domicile), 25 USC 1911(a); MCL 712B.7(1); MCR 3.002(6); 25 CFR 23.110(b); and
(3) Concurrent jurisdiction where the Indian child is domiciled or resides off an Indian reservation and is not a ward of the Tribe’s court. 25 USC 1911(b); MCL 712B.7(3).
A.Mandatory Transfer of Case to Tribal Court
If an Indian tribe has exclusive jurisdiction over an Indian child involved in a child protective proceeding and the State’s involvement is not due to an emergency removal, the State court must notify the Tribe of the dismissal, dismiss the matter, and ensure that the Tribe is sent all information regarding the proceeding. MCR 3.905(A); 25 CFR 23.110(a)-(b).
“To ensure the well-being of the child, State officials should continue to work on the case until the State court officially dismisses the case from State jurisdiction.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, F.1 (2016).
1.Child’s Domicile or Residence is on an Indian Reservation
“If either the residence or domicile is on a reservation[7] where the Tribe exercises exclusive jurisdiction over child-custody proceedings, the State court must expeditiously notify the Tribal court of the pending dismissal based on the Tribe’s exclusive jurisdiction, dismiss the State-court child-custody proceeding, and ensure that the Tribal court is sent all information regarding the Indian child-custody proceeding, including, but not limited to, the pleadings and any court record.” 25 CFR 23.110(a). See also 25 USC 1911(a), MCL 712B.7(1), MCR 3.002(6), and MCR 3.905(A).
25 CFR 23.2 defines an Indian child’s domicile as “the domicile of the Indian child’s parents or Indian custodian or guardian. In the case of an Indian child whose parents are not married to each other, the domicile of the Indian child’s custodial parent.” A parent’s or Indian custodian’s domicile is “the place at which a person has been physically present and that the person regards as home; a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain indefinitely even though the person may be currently residing elsewhere.” Id.
2.Indian Child is a Ward of the Tribal Court
Regardless of the child’s domicile or residence (or subsequent change in the child’s residence or domicile), an Indian Tribe retains exclusive jurisdiction where an Indian child is a ward of the Tribal court.8 25 USC 1911(a); MCL 712B.7(1); MCR 3.002(6); 25 CFR 23.110(b).
“If the child is a ward of a Tribal court,[9] the State court must expeditiously notify the Tribal court of the pending dismissal, dismiss the State-court child-custody proceeding, and ensure that the Tribal court is sent all information regarding the Indian child-custody proceeding, including, but not limited to, the pleadings and any court record.” 25 CFR 23.110(b).
B.Non-Mandatory Transfer of Case to Tribal Court (Concurrent Jurisdiction)
When the Indian child is domiciled10 or resides off the Indian reservation11 and is not a ward of the Tribal court, the Tribal court and the State court have concurrent jurisdiction. 25 USC 1911(b); MCL 712B.7(3).
Note: If the Tribe does not have exclusive jurisdiction over the child custody proceeding, the court must ensure that the petitioner gave notice of the proceedings in accordance with MCR 3.920(C) to the interested parties listed in MCR 3.921.12 MCR 3.905(C).
However, if either parent, the Indian custodian, or the Indian child’s Tribe requests that the proceeding be transferred to the Tribal court,13 the court must transfer the case to the Tribal court unless either parent objects, the court finds good cause not to transfer the case to the Tribal court, or the Tribal court declines the transfer. 25 USC 1911(b); MCL 712B.7(3); MCR 3.905(C)(1); 25 CFR 23.117.
Note: The State court must not dismiss the case until the transfer has been accepted by the Tribal court. MCR 3.905(C)(2).
1.Request for Transfer of Case to Tribal Court Under MIFPA
A request to transfer the child protective proceeding to a tribal court may be made at any time in accordance with MCL 712B.7(3). MCR 3.905(C)(4).
a.Parental Objection to a Transfer
Either parent14 may prevent the state from transferring a case to the tribal court by objecting to the request that the proceeding be transferred. MCL 712B.7(3); MCR 3.905(C)(1).
The trial court must not transfer the proceeding to the tribal court if the trial court finds good cause not to transfer it. MCL 712B.7(3); MCR 3.905(C)(1).
Under the MIFPA, good cause may exist “only if the person opposing the transfer shows by clear and convincing evidence that either of the following applies:
(a) The Indian child’s tribe does not have a tribal court.
(b) The requirement of the parties or witnesses to present evidence in tribal court would cause undue hardship to those parties or witnesses that the Indian tribe is unable to mitigate.”15 MCL 712B.7(5). See also MCR 3.905(C)(1), which contains substantially similar requirements.
“By its plain language, good cause to not transfer an Indian child custody proceeding to a tribal court under MCL 712B.7(5)(b) has three components[: f]irst, there must be an undue hardship on the parties or witnesses that will be required to present evidence in the tribal court[;] . . . [s]econd, the undue hardship must stem from the requirement to present evidence in the tribal court[;] . . . [and t]hird, the Indian tribe must be unable to mitigate the undue hardships caused by the requirement of the parties or witnesses [to] present evidence in the tribal court.” In re Spears, 309 Mich App 658, 671-672 (2015) (trial court erred in finding good cause to not transfer the proceedings to the tribal court by “bas[ing] its decision on an undue hardship to the [Indian children] without determining whether the [Indian children] had any requirement to present evidence in the tribal court[,] . . . not identify[ing] any other parties or witnesses that would be required to present evidence in the tribal court[, a]nd . . . failing to explain why the tribal court would be unable to mitigate the anticipated undue hardships[]”).
The court is prohibited from considering the “adequacy of the tribe, tribal court, or tribal social services” when making a good cause determination. MCL 712B.7(4); MCR 3.905(C)(1).
The court must not transfer the proceeding to the tribal court if the tribal court declines the transfer of jurisdiction. MCL 712B.7(3); MCR 3.905(C)(2). On a declination of transfer, the court must continue to apply the MIFPA and applicable court rule provisions as they pertain to the Indian child. MCR 3.905(C)(3).
The state court must not dismiss the case until the transfer has been accepted by the tribal court. MCR 3.905(C)(2).
3.Request for Transfer of Case to Tribal Court Under ICWA
“Either parent,16 the Indian custodian, or the Indian child’s Tribe may request, at any time, orally on the record or in writing, that the State court transfer a foster-care or termination-of-parental rights proceeding to the jurisdiction of the child’s Tribe.” 25 CFR 23.115(a).
“The right to request a transfer is available at any stage in each foster-care or termination-of-parental-rights proceeding.” 25 CFR 23.115(b). The transfer provisions “apply to both involuntary and voluntary foster-care and [termination-of-parental-rights] proceedings[,] . . . includ[ing termination-of-parental-rights] proceedings that may be handled concurrently with adoption proceedings.”17 Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, F.2 (2016).
Once the court receives a request to transfer the proceeding to a Tribal court, the court “must ensure that the Tribal court is promptly notified in writing of the [request for transfer].”18 25 CFR 23.116. The court’s notification to the Tribal court “may request a timely response regarding whether the Tribal court wishes to decline the transfer.” Id.
a.Parental Objection to a Transfer
Either parent may prevent the state from transferring a case to the Tribal court by objecting to the request that the proceeding be transferred. 25 USC 1911(b); 25 CFR 23.117(a). “However, if a parent’s parental rights have been terminated and this determination is final, they would no longer be considered a ‘parent’ with a right under [25 CFR 23.117] to object.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, F.4 (2016).
The court must not transfer the proceeding to the Tribal court if it finds good cause not to transfer it. 25 USC 1911(b); 25 CFR 23.117(c).
“If the State court believes, or any party asserts, that good cause to deny transfer exists, the reasons for that belief or assertion must be stated orally on the record or provided in writing on the record and to the parties to the child-custody proceeding.” 25 CFR 23.118(a). “Any party to the child-custody proceeding must have the opportunity to provide the court with views regarding whether good cause to deny transfer exists.” 25 CFR 23.118(b).
In determining whether good cause exists, the court must not consider:
“(1) Whether the foster-care or termination-of-parental rights proceeding is at an advanced stage if the Indian child’s parent, Indian custodian, or Tribe did not receive notice of the child-custody proceeding until an advanced stage;
(2) Whether there have been prior proceedings involving the child for which no petition to transfer was filed;
(3) Whether [the] transfer could affect the placement of the child;
(4) The Indian child’s cultural connections with the Tribe or its reservation;[19] or
(5) Socioeconomic conditions or any negative perception of Tribal or [Bureau of Indian Affairs (BIA)] social services or judicial systems.” 25 CFR 23.118(c)(5).
“[N]othing prohibits the State court from considering[, where appropriate,] the [child’s or guardian ad litem’s] objection” when determining whether good cause exists. Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, F.4 (2016).
“The basis for any State-court decision to deny transfer should be stated orally on the record or in a written order.” 25 CFR 23.118(d).
The Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, supra at F.5, recommends the State courts apply a clear and convincing standard of evidence for the determination of whether there is good cause to transfer a proceeding to Tribal court.
The court must not transfer the proceeding to the Tribal court if the tribal court declines the transfer of jurisdiction. 25 USC 1911(b); 25 CFR 23.117(b).
Note: Upon a declination of transfer, the court must apply the MIFPA and applicable court rule provisions as they pertain to the Indian child. MCR 3.905(C)(3).
“[T]he State court [should] obtain documentation of the Tribal court’s declination to include in the record.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, F.4 (2016).
“If the Tribal court accepts the transfer, the State court should expeditiously provide the Tribal court with all records related to the proceeding, including, but not limited to, the pleadings and any court record.” 25 CFR 23.119(a).
Note: The state court must not dismiss the case until the transfer has been accepted by the Tribal court. MCR 3.905(C)(2).
”The State court should work with the Tribal court to ensure that the transfer of the custody of the Indian child and of the proceeding is accomplished smoothly and in a way that minimizes the disruption of services to the family.” 25 CFR 23.119(b).
1 “For an Indian child, [domicile is] the domicile of the Indian child’s parents or Indian custodian or guardian. In the case of an Indian child whose parents are not married to each other, the domicile of the Indian child’s custodial parent.” 25 CFR 23.2. “For a parent or Indian custodian, [domicile is] the place at which a person has been physically present and that the person regards as home; a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain indefinitely even though the person may be currently residing elsewhere.” Id.
2 For additional information on determining an Indian child’s status, see Section 19.4(A), and child-custody proceedings, see Section 19.4(B).
3 “‘Reservation’ means Indian country as defined in 18 USC 1151 and any lands, not covered under that section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation.” MCL 712B.3(t). See also 25 USC 1903(10), MCR 3.002(21), and 25 CFR 23.2, which contain substantially similar definitions of reservation.
4 Under MIFPA, MCL 712B.3(w) defines ward of tribal court as “a child over whom an Indian tribe exercises authority by official action in tribal court of by the governing body of the tribe.” See also MCR 3.002(24), which contains a substantially similar definition of ward of tribal court.
5 See Section 15.8 for a detailed discussion of emergency removals.
6 “‘Tribal court’ means a court with jurisdiction over child custody proceedings that is either a court of Indian offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe that is vested with authority over child custody proceedings.” MCL 712B.3(v). See also 25 USC 1903(12), MCR 3.002(23), and 25 CFR 23.2, which contain substantially similar definitions of Tribal court.
7 “‘Reservation’ means Indian country as defined in 18 USC 1151 and any lands, not covered under that section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation.” MCL 712B.3(t). See also 25 USC 1903(10), MCR 3.002(21), and 25 CFR 23.2 which contain substantially similar definitions of reservation.
8 For purposes of the MIFPA, MCL 712B.3(w) defines ward of tribal court as “a child over whom an Indian tribe exercises authority by official action in tribal court or by the governing body of the tribe.” See also MCR 3.002(24), which contains a substantially similar definition of ward of tribal court.
9 25 CFR 23.2 defines Tribal court as a court with jurisdiction over child-custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian Tribe, or any other administrative body of a Tribe vested with authority over child-custody proceedings.” For a discussion on child-custody proceedings, see Section 19.4(B).
10 “For an Indian child, [domicile is] the domicile of the Indian child’s parents or Indian custodian or guardian. In the case of an Indian child whose parents are not married to each other, the domicile of the Indian child’s custodial parent.” 25 CFR 23.2. “For a parent or Indian custodian, [domicile is] the place at which a person has been physically present and that the person regards as home; a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain indefinitely even though the person may be currently residing elsewhere.” Id.
11 “‘Reservation’ means Indian country as defined in 18 USC 1151 and any lands, not covered under that section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation.” MCL 712B.3(t). See also 25 USC 1903(10), MCR 3.002(21), and 25 CFR 23.2 which contain substantially similar definitions of reservation.
12 See Section 19.5 for information on notice requirements, and Section 5.2 for lists of interested parties under MCR 3.921.
13 25 CFR 23.2 defines Tribal court as “a court with jurisdiction over child-custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian Tribe, or any other administrative body of a Tribe vested with authority over child-custody proceedings.” For a discussion on child-custody proceedings, see Section 19.4(B).
14 For purposes of an Indian child, a “‘parent’ means any biological parent or parents of an Indian child or any person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. Parent does not include the putative father if paternity has not been acknowledged or established.” MCL 712B.3(s) (emphasis added). See also MCR 3.002(20), which contains a substantially similar definition of parent, except that, where the Indian child has been adopted, it requires the adopter to be an Indian. See Chapter 6 for information on establishing paternity.
15 “[T]he plain language of MCL 712B.7(5)(b) does not permit [a trial court] to consider the timeliness of the request or its possible effect on the child’s best interest in determining whether there exists ‘good cause not to transfer a case to tribal court.’” In re Spears, 309 Mich App 658, 670 (2015) (trial court erred by giving MCL 712B.7(5)(b) a “‘wider’ interpretation” that allowed for consideration of the timeliness of the transfer request and the minors’ bests interests where “the Michigan Legislature chose not to include timeliness of the request for transfer as a basis for finding good cause under MCL 712B.7(5)[]”).
16 For purposes of an Indian child, “[p]arent or parents means any biological parent or parents of an Indian child, or any Indian who has lawfully adopted an Indian child, including adoptions under Tribal law or custom. It does not include an unwed biological father where paternity has not been acknowledged or established.” 25 CFR 23.2 (emphasis added). See also 25 USC 1903(9), which contains a substantially similar definition of parent. See Chapter 6 for information on establishing paternity.
17 For a discussion of adoption proceedings involving an Indian child, see the Michigan Judicial Institute’s Adoption Proceedings Benchbook, Chapter 11.
18 “[I]n addition to the required written notification, State court personnel [should] contact the Tribe by phone as well.” Guidelines for Implementing the Indian Child Welfare Act, supra at F.3.
19 “‘Reservation’ means Indian country as defined in 18 USC 1151 and any lands, not covered under that section, title to which is held by the United States in trust for the benefit of any Indian Tribe or individual or held by any Indian Tribe or individual subject to a restriction by the United States against alienation.” 25 CFR 23.2. See also 25 USC 1903(10), which contains a substantially similar definition of reservation.