19.5Notice of Proceedings

Once the court knows or has reason to know that an Indian child is involved in a child custody proceeding, the child’s parent¹ or Indian custodian² and the Indian child’s tribe must be notified by the party seeking foster care placement or termination of parental rights.^3, 4 25 USC 1912(a); MCL 712B.9(1); 25 CFR 23.11(a). Note that 25 USC 1912(a) limits the notification requirement to involuntary proceedings, whereas MCL 712B.9(1) extends the notification requirement to both involuntary and voluntary proceedings.

“Notice must include the requisite information identified in [25 CFR 23.111⁵], consistent with the confidentiality requirement in [25 CFR 23.111(d)(6)(ix)].” 25 CFR 23.11(a). Copies of the notice must also be sent to the appropriate Regional Director, which for Michigan is the Midwest Regional Director. 25 CFR 23.11(a); 25 CFR 23.11(b)(2). “This notice is required in addition to the informal contacts made with the Tribe, such as those to verify Tribal membership and open the lines of communication.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, D.1 (2016).

Note: “Notice is required for a [termination of parental rights] proceeding, even if notice has previously been given for the child’s foster-care proceeding.” Guidelines for Implementing the Indian Child Welfare Act, supra at D.1.

25 CFR 23.111(a) requires the court, once it knows or has reason to know that an Indian child is involved in “an involuntary foster-care-placement or termination-of-parental rights proceeding[,]” to ensure that:

“(1) The party seeking placement promptly sends notice of each such child-custody proceeding (including, but not limited to, any foster-care placement or any termination of parental or custodial rights) in accordance with [25 CFR 23.111]; and

(2) An original or a copy of each notice sent under [25 CFR 23.111] is filed with the court together with any return receipts or other proof of service.”

The Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, supra at D.1, also recommends that “State agencies and/or courts provide notice to Tribes and parents or Indian custodians of:

[(1)] Each individual hearing within a proceeding;

[(2)] Any change in placement – the statute provides rights to parents, Indian custodians and Tribes (e.g., right to intervene) and a change in circumstances resulting from a change in placement may prompt an individual or Tribe to invoke those rights, even though they did not do so before;

[(3)] Any change to the child’s permanency plan or concurrent plan – a change in the ultimate goal may prompt an individual or Tribe to invoke their rights, even though they did not do so before;

[(4)] Any transfer of jurisdiction to another State or receipt of jurisdiction from another State.”

See Section 19.4 for a detailed discussion of an Indian child, how to determine an Indian child’s Tribe, and what constitutes a child custody proceeding, an Indian child’s parent, and an Indian custodian.

 “[S]ufficiently reliable information of virtually any criteria on which membership might be based is adequate to trigger the notice requirement of 25 USC 1912(a).” In re Morris (Morris III), 491 Mich 81, 108-109 (2012) (trial courts⁶ properly determined “that there existed sufficient indicia of Indian heritage to require tribal notice[]” where the trial court found in In re Morris that the tribal-notice requirement under 25 USC 1912(a) was triggered when the child’s parents informed the court during a preliminary hearing that they had Cherokee Indian heritage, and the trial court found in In re Gordon that the tribal-notice requirement under 25 USC 1912(a) was triggered when the child’s parent indicated “her family was part of the Saginaw Chippewa Indian Tribe, and the referee indicated that the DHHS would be required to notify the Saginaw Chippewa [T]ribe to conclusively resolve the issue”).

“A nonexhaustive list of indicia sufficient to trigger tribal notice includes situations in which (1) the trial court has information suggesting that the child, a parent of the child, or members of a parent’s family are tribal members, (2) the trial court has information indicating that the child has Indian heritage, even though no particular Indian tribe can be identified, (3) the child’s birth certificate or other official record indicates that the child or a parent of the child is of Indian descent, (4) the child, the child’s parents, or the child’s Indian custodian resides or is domiciled in a predominantly Indian community[,] and (5) the child or the child’s family has received services or benefits from a tribe or the federal government that are available to Indians.” Morris III, 491 Mich at 108 n 18. See also In re Johnson, 305 Mich App 328, 330, 332 (2014) (conditionally reversing the trial court’s order terminating the respondent-mother’s parental rights due to ICWA noncompliance and remanding to the trial court where the ICWA notice requirements were triggered following “the minor child’s father[’s] state[ment] [during the preliminary hearing] that his deceased grandmothers were both ‘full-blooded’ Native Americans, although he did not know to which tribe they belonged[,]” and “the [court] record contain[ed] no indication that notice was served under 25 USC 1912(a), nor [was] there any claim that such notice was ever served, apparently because there was a determination, or at least it was stated in court documents, that the minor child [was] not an Indian child[]”); In re Jones, 316 Mich App 110, 117-118 (2016) (conditionally reversing the trial court’s order terminating the respondent-mother’s parental rights due to ICWA and MIFPA noncompliance and remanding to the trial court where “the notice requirements of both 25 USC 1912(a) and MCL 712B.9(1) were triggered” when the respondent-mother, “although unsure, thought that [the child’s] father might have Cherokee heritage, and . . . told the trial court that [the child’s] father informed her that ‘he might be Cherokee[, and g]iven that the DHHS and the trial court had information that at least suggested the possibility of Cherokee heritage, absent mention of any other potential tribal affiliation, notice should have been sent to the Cherokee tribe for purposes of 25 USC 1912(a) and MCL 712B.9(1)[, but t]here [was] no indication in the record that such notice was sent[]”).

Once it becomes known that a child is possibly of Indian ancestry, notice becomes mandatory regardless of where the court is in its proceedings. In re TM (After Remand), 245 Mich App 181, 188 (2001), overruled on other grounds by In re Morris (Morris III), 491 Mich 81 (2012).⁷

A parent cannot waive a child’s status as an Indian child or a tribe’s right to notice under 25 USC 1912(a). Morris III, 491 Mich at 95-97, 110-111 (Court of Appeals erroneously held that a parent’s “clarification [of the child’s grandmother receiving direct notification from the tribe that indicated she and her son “‘don’t have enough heritage to get—to be part of the tribe’”] had relieved the trial court from making further tribal-notification efforts”). Specifically,

“We do not think that the purported communication from the tribe to [the child’s grandmother] about her eligibility for tribal benefits suffices for any purpose relevant to [the] ICWA. First, the purported letter to [the grandmother] had nothing to do with [the] ICWA or the child custody proceedings. Second, it is not clear that ineligibility for tribal benefits equates with ineligibility for tribal membership. Lastly, the trial court was correct to conclude that the tribe’s response to the notice of the child custody proceedings needed to be sent from the tribe or the Secretary of the Interior directly to the DHHS or the trial court. A communication from a tribe to a relative of a respondent about eligibility for tribal benefits is insufficient to support any conclusion that [the] ICWA does not apply to the child custody proceedings.” Morris III, 491 Mich at 111 n 20.

A.Identity and Location of Parents, Indian Custodians, or Tribe

“The first step in the [ICWA and the MIFPA notification] process is to send the appropriate notification to ‘the parent or Indian custodian and the Indian child’s tribe,’ if determinable[, and]” if “‘the identity or location of the parent or Indian custodian and the tribe cannot be determined[,]’” written notice must be sent to the tribe(s) in the county where the child is located and the Secretary of the Interior. In re Jones, 316 Mich App 110, 117-118 (2016) (conditionally reversing the trial court’s order terminating the respondent-mother’s parental rights due to ICWA and MIFPA noncompliance and remanding to the trial court where the court failed to send notice to the Cherokee tribe after “the DHHS and the trial court had information that at least suggested the possibility of Cherokee heritage[;]” although notice was sent to the Secretary of the Interior, “such notice only becomes obligatory when ‘the identity or location of the parent or Indian custodian and the tribe cannot be determined[]’”).

1.Identity and Location of Parents, Indian Custodians, or Tribe Can be Determined

In a child custody proceeding where the court knows or has reason to know that an Indian child is involved and where the identity and location of a child’s Indian parent(s), Indian custodian(s), or tribe(s) can be determined, “the petitioner shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending child custody proceeding and of the right to intervene.”⁸ MCL 712B.9(1). See also 25 USC 1912(a) and MCR 3.920(C)(1), which contain substantially similar language, and 25 CFR 23.11(a), which contains substantially similar language except that it requires registered or certified mail with return receipt requested.

In addition to requiring notice to be sent “by registered or certified mail with return receipt requested[, n]otice may also be sent via personal service or electronically, but such alternative methods do not replace the requirement for notice to be sent by registered or certified mail with return receipt requested.” 25 CFR 23.111(c).

a.Send Notification to Each Potential Tribe

Notice must be sent to “[e]ach Tribe where the child may be a member (or eligible for membership if a biological parent is a member)[.]” 25 CFR 23.111(b)(1).⁹

For purposes of providing notification to a Tribe,

•“[m]any Tribes designate an agent for receipt of ICWA notices.”¹⁰ 25 CFR 23.105(a). For a published list of current designated Tribal agents by region and alphabetically by Tribe within each region, see the Bureau of Indian Affairs, Indian Child Welfare Act; Designated Tribal Agents for Service of Notice, 83 Federal Register 25685, Part A (2018).

•“[f]or a Tribe without a designated Tribal agent for service of ICWA notice, contact the Tribe to be directed to the appropriate office or individual.” 25 CFR 23.105(b).

•“[i]f you do not have accurate contact information for a Tribe, or the Tribe contacted fails to respond to written inquiries, you should seek assistance in contacting the Indian Tribe from the BIA local or regional office or the BIA’s Central Office in Washington, DC[.]”¹¹ 25 CFR 23.105(c).

In addition to written contact, it is recommended that State agencies contact the Tribal ICWA agent by telephone and/or email. Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, B.6 (2016). “State agencies should document their conversations with the Tribal agents.” Id.

b.Forward Copies of Notices to Secretary of the Interior’s Regional Director

Copies of these notices must be sent “by registered or certified mail with return receipt requested or by personal delivery” to the Secretary of the Interior’s Regional Director, which for Michigan is the Midwest Regional Director. 25 CFR 23.11(a); 25 CFR 23.11(b)(2).

2.Identity or Location of Parents, Indian Custodians, or Tribe Cannot be Determined

When the identity or location of the Indian parent(s), Indian custodian(s), or Indian tribe cannot be determined,¹² but there is reason to know the child is an Indian child, notice of the pending child-custody proceeding must be by registered mail with return receipt requested to the Secretary of the Interior’s Regional Director,¹³ which for Michigan is the Midwest Regional Director.¹⁴ 25 USC 1912(a); MCL 712B.9(1); MCR 3.920(C)(1); 25 CFR 23.111(e). See In re Jones, 316 Mich App 110, 117 (2016) (“notice [to the Secretary of the Interior] only becomes obligatory when ‘the identity or location of the parent or Indian custodian and the tribe cannot be determined[]’”).

The contact information for the Midwest Region Office may be obtained at http://www.bia.gov/WhoWeAre/RegionalOffices/Midwest/index.htm.

Note: On receipt of notice, the Secretary must make “reasonable documented efforts to locate and notify the child’s Tribe and the child’s parent or Indian custodian.” 25 CFR 23.11(c). The Secretary has 15 days after receiving the notice to notify the child’s Tribe and parents or Indian custodians and to send a copy of the notice to the court. 25 USC 1912(a); MCL 712B.9(1); 25 CFR 23.11(c). If, within the 15-day period, the Secretary is unable to verify that the child meets the criteria of an Indian child, or is unable to locate the parents or Indian custodians, the Secretary must notify the court regarding the amount of additional time, if any, needed to complete the verification or the search. 25 CFR 23.11(c). The Secretary must complete all research efforts, even if the research cannot be completed before the child-custody proceeding begins. Id.

B.Notice Requirements

“Notice [provided to the Indian child’s parent(s), Indian custodian(s), and the Indian child’s Tribe] must include the requisite information identified in [25 CFR 23.111], consistent with the confidentiality requirement in [25 CFR 23.111(d)(6)(ix)].” 25 CFR 23.11(a). Copies of these notices must be sent to the Secretary and must “include the information required by [25 CFR 23.111].” 25 CFR 23.11(a).

Specifically, 25 CFR 23.111(d) requires “[n]otice to [be] in clear and understandable language and include the following:

“(1) The child’s name, birthdate, and birthplace;

(2) All names known (including maiden, married, and former names or aliases) of the parents, the parents’ birthdates and birthplaces, and Tribal enrollment numbers if known;

(3) If known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents;

(4) The name of each Indian Tribe in which the child is a member (or may be eligible for membership if a biological parent is a member);

(5) A copy of the petition, complaint, or other document by which the child-custody proceeding was initiated and, if a hearing has been scheduled, information on the date, time, and location of the hearing;

(6) Statements setting out:

(i) The name of the petitioner and the name and address of petitioner’s attorney.

(ii) The right of any parent or Indian custodian of the child, if not already a party to the child-custody proceeding, to intervene in the proceedings.

(iii) The Indian Tribe’s right to intervene at any time in a State-court proceeding for the foster-care placement of or termination of parental rights to an Indian child.

(iv) That, if the child’s parent or Indian custodian is unable to afford counsel based on a determination of indigency by the court, the parent or Indian custodian has the right to court appointed counsel.

(v) The right to be granted, upon request, up to 20 additional days to prepare for the child-custody proceedings.

(vi) The right of the parent or Indian custodian and the Indian child’s Tribe to petition the court for transfer of the foster-care-placement or termination-of-parental-rights proceeding to Tribal court as provided by 25 USC 1911 and [25 CFR 23.115].

(vii) The mailing addresses and telephone numbers of the court and information related to all parties to the child-custody proceeding and individuals notified under this section.

(viii) The potential legal consequences of the child-custody proceedings on the future parental and custodial rights of the parent or Indian custodian.

(ix) That all parties notified must keep confidential the information contained in the notice and the notice should not be handled by anyone not needing the information to exercise rights under ICWA.”

Where possible, notice should also include:

“[(1) g]enograms or ancestry/family charts for both parents;

[(2) a]ll known names of both parents maiden, married and former names or aliases), including possible alternative spellings;

[(3) c]urrent and former addresses of the child’s parents and any extended family;

[(4) b]irthdates and places of birth (and death, if applicable) of both parents;

[(5) a]ll known Tribal affiliation (or Indian ancestry if Tribal affiliation not known) for individuals listed on the ancestry/family charts; and

[(6) t]he addresses for the domicile and residence of the child, his or her parents, or the Indian custodian and whether this is on an Indian reservation or in an Alaska Native village.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, B.7 (2016).

“If there is a reason to know that a parent or Indian custodian possesses limited English proficiency and is therefore not likely to understand the contents of the notice, the court must provide language access services as required by Title VI of the Civil Rights Act[, 42 USC 2000d et seq.,] and other Federal laws. To secure such translation or interpretation support, a court may contact or direct a party to contact the Indian child’s Tribe or the local BIA office for assistance in locating and obtaining the name of a qualified translator or interpreter.”¹⁵ 25 CFR 23.111(f). See also MCL 712B.13(1)(b); MCL 712B.15(1)(a); MCL 712B.25(2); MCL 712B.27(2) (all requiring “[n]otice of the pending proceeding [to] be given as prescribed by [the Michigan Court Rules], the [ICWA], and [MCL 712B.9]”).

“There is no requirement under [the] ICWA, the BIA’s regulations, or Michigan caselaw that [requires the] petitioner [to] conduct independent research to obtain a parent’s detailed genealogical information[;]” rather, “[t]he BIA adopted regulations [under 25 CFR 23.11(a) and 25 CFR 23.111(d)¹⁶] requir[e] notice to include ancestry information if known.” In re Morris (Morris IV) (After Remand), 300 Mich App 95, 105 (2013)¹⁷ (where the petitioner receives a request for additional information from a tribe, whom the petitioner had notified of the proceedings, “it would be unreasonable to expect [the] petitioner to [locate the requested additional information regarding the respondent’s family]” when “[the] respondent could not obtain any additional information regarding his [or her] relatives[;]” “[i]mposing this burden on [the] petitioner would also encourage parents, who can best research their own ancestry, to delay the proceedings by providing limited information[, and] [b]ecause it would often take a long time to uncover ancestry details, a requirement that [the] ICWA tribal notices include every detail of a child’s ancestry would undermine [the] ICWA’s 10-day provision [under 25 USC 1912(a)], which prevents unreasonable delays[, and] [i]t would also jeopardize concepts of permanency and finality.”).

C.Procedures After Providing Notice

The court must wait a minimum of 10 days after the parents or Indian custodians and the Indian tribe or the Secretary of the Interior have received notice before going forward with a foster-care-placement or termination-of-parental-rights proceeding. 25 USC 1912(a); MCL 712B.9(2); 25 CFR 23.112(a). On request, the court must grant parents, Indian custodians, or an Indian tribe an additional 20 days to prepare for the proceeding.¹⁸ 25 USC 1912(a); MCL 712B.9(2); 25 CFR 23.112(a). “The parent, Indian custodian, and Indian child’s Tribe are entitled to one extension of up to 20 days for each proceeding. Any extension beyond the initial extension up to 20 days is subject to the State court’s rules and discretion.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, D.7 (2016).

Note: “If the petitioner or court later discovers that the child may be an Indian child, all further proceedings shall be suspended until notice is received by the tribe or the [Secretary of the Interior¹⁹] as set forth in [MCL 712B.9(2)]. If the court determines after a hearing that the parent or tribe was prejudiced by lack of notice, the prior decisions made by the court shall be vacated and the case shall proceed from the first hearing. The petitioner has the burden of proving lack of prejudice.” MCL 712B.9(2).

“Notice under [the] ICWA does not require the court or [the] petitioner to demand a response from the tribes notified.” In re Morris (Morris IV) (After Remand), 300 Mich App 95, 108 (2013).

“If proper notice is provided and a tribe fails to either respond or intervene in the matter, the burden shifts to the parties (i.e., the parents) to show that the ICWA still applies. In re TM (After Remand), 245 Mich App 181, 187 (2001), overruled on other grounds by In re Morris (Morris III), 491 Mich 81 (2012).²⁰ See also In re IEM, 233 Mich App 438, 449 (1999), overruled on other grounds by In re Morris (Morris III), 491 Mich 81 (2012)²¹ (“‘[o]nly after notice has been provided and a tribe has failed to respond or has intervened but is unable to determine the child’s eligibility for membership does the burden shift to the parties to show that the ICWA still applies.’”); Morris IV, 300 Mich App at 106 (respondent-father failed to meet his burden of proving the ICWA still applied where “[t]here [was] nothing in the [trial court] record to indicate that the minor child [was] eligible for membership in an Indian tribe, [] both [the] petitioner and the trial court satisfied their obligations under [the notice requirements of 25 USC 1912(a)][,]” and the respondent-father did not “show[] that any new information [beyond what the petitioner provided to the tribes] [was] available or would result in a different tribal determination”).

There was no due process violation where “[n]otice to the tribes was properly provided under [the] ICWA, no tribe sought a request for more time to prepare for the proceedings, and [the] respondent[-father] was given ample time to investigate, uncover, and provide any family information that he could. Morris IV, 300 Mich App at 108.

“If the Tribe does not respond to the notice, or responds that it is not interested in participating in the proceeding, the court or agency must still send the Tribe notices of subsequent proceedings for which notice is required (i.e., a subsequent [termination of parental rights] proceeding). In cases where the Tribe does not confirm receipt of the required notice or otherwise does not respond, the [Bureau of Indian Affairs] recommends following up telephonically. The Tribe may decide to intervene or otherwise participate at a later point even if it has previously indicated it is not interested in participating.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, D.10 (2016).

D.Recordkeeping Requirements to Show Compliance

“While [the] ICWA is silent regarding the recordkeeping requirements of 25 USC 1912(a) notice compliance, . . . it [is] essential that certain documents be included in the record.”²² Morris III, 491 Mich at 113. Specifically, the Michigan Supreme Court held that the “trial courts have a duty to ensure that the record includes, at minimum[:]

•(1) the original or a copy of each actual notice personally served or sent via registered mail pursuant to 25 USC 1912(a), and

•(2) the original or a legible copy of the return receipt or other proof of service showing delivery of the notice[, and]

•[i]n addition, it would be helpful—especially for appellate purposes—for the record to include any additional correspondence between the petitioner, the court, and the Indian tribe or other person or entity entitled to notice under 25 USC 1912(a).” Morris III, 491 Mich at 114 (bullets added).

“Congress may impose ancillary recordkeeping requirements related to state-court proceedings without violating the Tenth Amendment [powers not delegated to the federal government by the Constitution and not prohibited by it to the States, are reserved to the States or to the people].” Haaland v Brackeen, 599 US ___, ___ (2023). “[25 USC 1951(a)] requires the state court to transmit to the Secretary a copy of a court order along with basic demographic information. [25 USC 1915(e)] likewise requires the State to record a limited amount of information—the efforts made to comply with the placement preferences—and provide the information to the Secretary and to the child’s tribe. These duties are ‘ancillary’ to the state court’s obligation to conduct child custody proceedings in compliance with ICWA.” See Printz v United States, 521 US 898, 908 n 2 (1997). “Thus, ICWA’s recordkeeping requirements are consistent with the Tenth Amendment.” Haaland, 599 US at ___.