19.4When the ICWA and the MIFPA Apply

The ICWA and the MIFPA “apply whenever an Indian child^[1] is the subject of:

(1) A child-custody proceeding, including:^[2]

(i) An involuntary proceeding;^[3]

(ii) A voluntary proceeding^[4] that could prohibit the

parent^[5] or Indian custodian^[6] from regaining custody^[7] of the child upon demand; and

[Note: A parent or Indian custodian is prohibited from regaining custody of the child upon demand if he or she has to do more than make a simple verbal request for the child’s return.⁸ See 25 CFR 23.2, which defines upon demand as permitting “the parent or Indian custodian [to] regain custody [of the child] simply upon verbal request, without any formalities or contingencies.”]

(iii) A proceeding involving status offenses^[9] if any part of the proceeding results in the need for out-of-home placement of the child, including a foster-care, preadoptive, or adoptive placement, or termination of parental rights.

(2) An emergency proceeding.”¹⁰ 25 CFR 23.103(a). See also 25 USC 1903(1), (4); MCL 712B.3(b)(i)-(v); MCL 712B.3(k); MCL 712B.7(2); 25 CFR 23.2.

“In determining whether ICWA applies to a proceeding, the State court may not consider factors such as the participation of the parents or the Indian child in Tribal cultural, social, religious, or political activities, the relationship between the Indian child and his or her parents, whether the parent ever had custody of the child, or the Indian child’s blood quantum.” 25 CFR 23.103(c). See also In re Elliott, 218 Mich App 196, 203 (1996) (trial court erroneously made an independent determination as to whether the child was being removed from an existing Indian family in deciding whether the ICWA applied based on “the lack of involvement by the mother or minor child in Indian culture[;]” “an ‘existing Indian family’ exception would be in direct conflict with the concept of tribal sovereignty and the important public policy of improving tribal ties reflected in the ICWA”).

The MIFPA does not apply to:

(1) A Tribal court proceeding;

(2) A proceeding regarding a criminal act that is not a status offense;

(3) An award of custody of the Indian child to one of the parents in a divorce proceeding. See MCL 712B.3(b)(vi); MCL 712B.7(1).

“[The] ICWA does not apply to:

(1) A Tribal court proceeding;

(2) A proceeding regarding a criminal act that is not a status offense;

(3) An award of custody of the Indian child to one of the parents including, but not limited to, an award in a divorce proceeding;^[11] or

(4) A voluntary placement that either parent, both parents, or the Indian custodian has, of his or her or their free will, without a threat of removal by a State agency,^[12] chosen for the Indian child and that does not operate to prohibit the child’s parent or Indian custodian from regaining custody of the child upon demand.”¹³ 25 CFR 23.103(b). See also 25 USC 1903(1).

Note: MCL 712B.13 specifically extends the MIFPA’s application to certain voluntary placements. For a discussion on MIFPA’s application to voluntary placements, see Section 19.11.

“If [the] ICWA applies at the commencement of a proceeding, it will not cease to apply simply because the child reaches age 18 during the pendency of the proceeding.” 25 CFR 23.103(d).

“[A] parent cannot waive a child’s status as an Indian child or any right of the tribe that is guaranteed by [the] ICWA.” In re Morris (Morris III), 491 Mich 81, 111 (2012).

The court must inquire whether the child or either of the child’s parents is a member of an Indian tribe at the preliminary hearing.¹⁴ MCR 3.965(B)(2).

•“If the court knows or has reason to know the child is an Indian child, the court must determine the identity of the child’s tribe[.]” MCR 3.965(B)(2).

•“If the court knows or has reason to know the child is an Indian child, the court may adjourn the [preliminary] hearing for up to 21 days to ensure proper notice to the tribe or Secretary of the Interior as required by MCR 3.920(C)(1).”¹⁵ MCR 3.965(B)(11). See also MCR 3.965(B)(2).

Note: A petitioner must include in a petition for termination of parental rights a child’s membership or eligibility for membership in an Indian tribe, if known.¹⁶ MCR 3.961(B)(5).

For a checklist on when the ICWA applies, see http://www.ncjfcj.org/sites/default/files/ICWAChecklistFullDoc.pdf, p 15.

A.Determining Indian Child Status

An Indian child is “an unmarried person who is under the age of 18 and is either of the following:

(i) A member of an Indian tribe.

(ii) Eligible for membership in an Indian tribe as determined by that Indian tribe.” MCL 712B.3(k). See also MCR 3.002(12), which contains substantially similar language; 25 USC 1903(4), which contains substantially similar language except that it also requires that the Indian child “[be] eligible for membership in an Indian tribe and [be] the biological child of a member of an Indian tribe.”^{17, 18} (Emphasis added).

Note: “ICWA does not apply simply based on a child[’s] or parent’s Indian ancestry. Instead there must be a political relationship to the Tribe.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, B.1 (2016).

The court must determine whether the child involved in the emergency proceeding¹⁹ or child custody proceeding²⁰ is an Indian child. See 25 CFR 23.103 (applicability of ICWA arises “whenever an Indian child is the subject of” certain proceedings); 25 CFR 23.107 (requiring the court’s inquiry and verification of an Indian child’s status); Guidelines for Implementing the Indian Child Welfare Act, supra at B.7 (providing that “the court must ultimately determine whether the child is an Indian child for purposes of the child-custody proceeding[]”).²¹ 

MCL 712B.9(3) requires the DHHS to “actively seek to determine whether a child at initial contact is an Indian child[, and] [i]f the [DHHS] is able to make an initial determination as to which Indian tribe or tribes a child brought to its attention may be a member, the [DHHS] shall exercise due diligence to contact the Indian tribe or tribes in writing so that the tribe may verify membership or eligibility for membership. If the [DHHS] is unable to make an initial determination as to which tribe or tribes a child may be a member, the [DHHS] shall, at a minimum, contact in writing the tribe or tribes located in the county where the child is located and the [S]ecretary [of the Interior].”²² See In re Jones, 316 Mich App 110, 119 (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 there were “multiple references in the record to possible Cherokee heritage, the DHHS had adequate information to make an ‘initial determination’ that [the minor] ‘may be a member’ of the Cherokee tribe, implicating a duty [under MCL 712B.9(3)] to ‘exercise due diligence to contact’ the Cherokee tribe ‘in writing so that the tribe may verify membership or eligibility for membership[,]’” and, at a minimum, to contact in writing any tribe or tribes in the county where the child was located).

Note: In a child custody proceeding, MCL 712B.9(7) requires the “petitioner [to] document all efforts made to determine a child’s membership or eligibility for membership in an Indian tribe and [to] provide them, upon request, to the court, Indian tribe, Indian child, Indian child’s lawyer-guardian ad litem, parent, or Indian custodian.”

“It is recommended the agency document the requests to the Tribe to obtain information or verification of a child’s or parent’s Tribal citizenship and provide this information for the court file.” Guidelines for Implementing the Indian Child Welfare Act, supra at B.7.

Exclusivity of Indian Tribal membership. Generally, the Indian Tribe is exclusively responsible for determining whether a child is a member of the Tribe or is eligible for membership: “The Indian Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) determines whether the child is a member of the Tribe, or whether the child is eligible for membership in the Tribe and a biological parent of the child is a member of the Tribe, except as otherwise provided by Federal or Tribal law.” See 25 CFR 23.108(a).

The Tribe’s determination “is solely within the jurisdiction and authority of the Tribe, except as otherwise provided by Federal or Tribal law[, and t]he State court may not substitute its own determination regarding” an Indian child’s or parent’s membership in a Tribe or a child’s eligibility for membership. 25 CFR 23.108(b).

Court determines Indian child status for purposes of ICWA application. “While a Tribe is the authoritative and best source regarding Tribal citizenship information, the court must ultimately determine whether the child is an Indian child for purposes of the child-custody proceeding. Ideally, that determination would be based on information provided by the Tribe, but may need to be based on other information if, for example, the Tribe(s) fail(s) to respond to verification requests.” Guidelines for Implementing the Indian Child Welfare Act, supra at B.7.

“[I]f a Tribe fails to respond to multiple requests for verification regarding whether a child is in fact a citizen (or a biological parent is a citizen and the child is eligible for citizenship), and the agency has sought the assistance of the Bureau of Indian Affairs (BIA) in contacting the Tribe, [the] court may make a determination regarding whether the child is an Indian child for purposes of the child-custody proceeding based on the information it has available. Guidelines for Implementing the Indian Child Welfare Act, supra at B.7. “The State court may rely on facts or documentation indicating a Tribal determination of membership or eligibility for membership” when determining whether a child is an Indian child. 25 CFR 23.108(c). “An example of documentation indicating membership is a document issued by the Tribe, such as Tribal enrollment documentation.” Id.

“A [court’s] finding that a child is an ‘Indian child’ applies only for purposes of the application of ICWA to that proceeding and does not establish that child’s membership in a Tribe or eligibility for any Federal programs or benefits for any other purpose. If new evidence later arises, the court will need to consider it and should alter the original determination if appropriate.” Guidelines for Implementing the Indian Child Welfare Act, supra at B.7.

1.Is There Reason to Know the Child Is an Indian Child?

“State courts must ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child. The inquiry is made at the commencement of the proceeding and all responses should be on the record. State courts must instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.” 25 CFR 23.107(a). “Even if a party fails to assert that [the] ICWA may apply, the court has a duty to inquire as to [the] ICWA’s applicability to the proceeding.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, B.1 (2016).

“[25 CFR 23.107(a)] does not require an inquiry at each hearing within a proceeding; but, if a new child-custody proceeding (such as a proceeding to terminate parental rights or for adoption) is initiated for the same child, the court must make a finding as to whether there is ‘reason to know’ that the child is an Indian child. In situations in which the child was not identified as an Indian child in the prior proceeding, the court has a continuing duty to inquire whether the child is an Indian child.” Guidelines for Implementing the Indian Child Welfare Act, supra at B.1.

“If there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an ‘Indian child,’ the court must:

(1) Confirm, by way of a report, declaration, or testimony included in the record that the agency^[23] or other party used due diligence to identify and work with all of the Tribes of which there is reason to know the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership);^[24] and

[Note: “[W]ritten verification from the Tribe(s) . . . [and a] Tribal representative’s testimony at a hearing regarding whether the child is a citizen (or a biological parent is a citizen and the child is eligible for citizenship) [are] appropriate method[s] of verification by the Tribe.” Guidelines for Implementing the Indian Child Welfare Act, supra at B.7. Other methods may also be appropriate. Id.]

(2) Treat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child’ in this part.”²⁵ 25 CFR 23.107(b).

Note: “The State court may rely on facts or documentation indicating a Tribal determination of membership or eligibility for membership in making a judicial determination as to whether the child is an ‘Indian child.’ An example of documentation indicating membership is a document issued by the Tribe, such as Tribal enrollment documentation.” 25 CFR 23.108(c). “However, for the court’s determination as to whether the child is an Indian child, the best source is a contemporaneous communication from the Tribe.” Guidelines for Implementing the Indian Child Welfare Act, supra at B.1.

The court “has reason to know that a child involved in an emergency or child-custody proceeding is an Indian child if:

(1) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization,^[26] or agency^[27] informs the court that the child is an Indian child;

(2) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child;

(3) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child;

(4) The court is informed that the domicile or residence of the child, the child’s parent, or the child’s Indian custodian is on a reservation^[28] or in an Alaska Native village;^[29]

(5) The court is informed that the child is or has been a ward of a Tribal court; or

(6) The court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe.” 25 CFR 23.107(c). See also MCL 712B.9(4), which, except as otherwise noted above, contains substantially similar language.

“If, based on feedback from the relevant Tribe(s) or other information, the court determines that the child is not an ‘Indian child,’ then the State may proceed under its usual standards.” Guidelines for Implementing the Indian Child Welfare Act, supra at B.1.

2.Determining an Indian Child’s Tribe

“Indian child’s Tribe means:

(1) The Indian Tribe in which an Indian child is a member or eligible for membership; or

(2) In the case of an Indian child who is a member of or eligible for membership in more than one Tribe, the Indian Tribe described in [25 CFR 23.109].”³⁰ 25 CFR 23.2.³¹ 

Generally, the Indian Tribe is exclusively responsible for determining whether a child is a member of the Tribe or is eligible for membership: “The Indian Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) determines whether the child is a member of the Tribe, or whether the child is eligible for membership in the Tribe and a biological parent of the child is a member of the Tribe, except as otherwise provided by Federal or Tribal law.” 25 CFR 23.108(a). The Tribe’s determination “is solely within the jurisdiction and authority of the Tribe, except as otherwise provided by Federal or Tribal law.” 25 CFR 23.108(b).

Note: “A written determination or oral testimony by a person authorized by the Indian tribe to speak on its behalf, regarding a child’s membership or eligibility for membership in a tribe, is conclusive as to that tribe.” MCL 712B.9(6).³² “If the Indian child is a member or eligible for membership in only one Tribe, that Tribe must be designated as the Indian child’s Tribe.” 25 CFR 23.109(a). If the Indian child may be a member or eligible for membership in more than one Tribe, see Section 19.4(A)(2)(b).

“The State court may not substitute its own determination regarding a child’s membership in a Tribe, a child’s eligibility for membership in a Tribe, or a parent’s membership in a Tribe.” 25 CFR 23.108(b). Tribes set their own eligibility requirements, and there is no specific degree of Indian ancestry that qualifies a child for Tribal membership. In re Elliott, 218 Mich App 196, 201-206 (1996) (trial court erroneously made an independent determination as to whether the child was being removed from an existing Indian family in deciding whether the ICWA applied based on “the lack of involvement by the mother or minor child in Indian culture[;]” “an ‘existing Indian family’ exception would be in direct conflict with the concept of tribal sovereignty and the important public policy of improving tribal ties reflected in the ICWA[]”).

However, “[t]he State court may rely on facts or documentation indicating a Tribal determination of membership or eligibility for membership in making a judicial determination as to whether the child is an ‘Indian child.’ An example of documentation indicating membership is a document issued by the Tribe, such as Tribal enrollment documentation.”³³ 25 CFR 23.108(c). Enrollment documentation is merely an example of the type of proof that may indicate tribal membership. See In re IEM, 233 Mich App 438, 445-446 (1999), overruled on other grounds by In re Morris (Morris III), 491 Mich 81 (2012)³⁴ (finding that tribes do not always have written rolls, and thus, a parent’s enrollment in an Indian Tribe is not necessarily a prerequisite to application of the ICWA); In re NEGP, 245 Mich App 126, 133 (2001), overruled on other grounds by In re Morris (Morris III), 491 Mich 81 (2012)³⁵ (“The lack of enrollment in a Native American tribe is not . . . conclusive of the issue whether a child qualifies as an ‘Indian child’”).

a.Determining Indian Tribal Status

An “‘Indian tribe’ or ‘tribe’ means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the [S]ecretary [of the Interior]^[36] because of their status as Indians, including any Alaska native village as defined in . . . [43 USC 1602(c)].” MCL 712B.3(o). See also 25 USC 1903(8), MCR 3.002(17), and 25 CFR 23.2, which contain substantially similar definitions of Indian tribe.

The court determines whether a tribe is an Indian tribe. In re NEGP, 245 Mich App 126, 133-134 (2001), overruled on other grounds by In re Morris (Morris III), 491 Mich 81 (2012).³⁷

Note: The Bureau of Indian Affairs, Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 81 Federal Register 5019 (2016),  contains a list of federally recognized Indian Tribes. However, the list is not all-inclusive because the Secretary may federally recognize an Indian Tribe after the list of federally recognized Tribes was last posted.

The ICWA does not apply to an Indian tribe that is not federally recognized. In re Fried, 266 Mich App 535, 540 (2005) (finding that “because the tribe to which [the] respondent[-father] belongs is not a tribe recognized as eligible for services provided to Indians by the Secretary of the Interior, it is not an ‘Indian tribe’ within the meaning of the ICWA[,] 25 USC 1903(8) and [25 USC 1903](11)”). See also Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, B.4 (2016) (providing that the ICWA applies “only if the Tribe is a federally recognized Indian Tribe”).

b.Designation of Indian Child’s Tribe

“A written determination or oral testimony by a person authorized by the Indian tribe to speak on its behalf, regarding a child’s membership or eligibility for membership in a tribe, is conclusive as to that tribe.” MCL 712B.9(6).

One Tribe. “If the Indian child is a member or eligible for membership in only one Tribe, that Tribe must be designated as the Indian child’s Tribe.” 25 CFR 23.109(a).

Multiple Tribes. “If the Indian child meets the definition of ‘Indian child’ through more than one Tribe, deference should be given to the Tribe in which the Indian child is already a member, unless otherwise agreed to by the Tribes.”³⁸ 25 CFR 23.109(b). “If [the] Indian child meets the definition of ‘Indian child’ through more than one Tribe because the child is a member in more than one Tribe or the child is not a member of but is eligible for membership in more than one Tribe, the court must provide the opportunity in any involuntary child-custody proceeding^[39] for the Tribes to determine which should be designated as the Indian child’s Tribe.” 25 CFR 23.109(c). “

•“If the Tribes are able to reach an agreement, the agreed-upon Tribe should be designated as the Indian child’s Tribe.” 25 CFR 23.109(c)(1).

•“If the Tribes are unable to reach an agreement, the State court designates, for the purposes of [the] ICWA, the Indian Tribe with which the Indian child has the more significant contacts as the Indian child’s Tribe, taking into consideration:

(i) Preference of the parents^[40] for membership of the child;

(ii) Length of past domicile^[41] or residence on or near the reservation^[42] of each Tribe;

(iii) Tribal membership of the child’s custodial parent or Indian custodian;^[43]

(iv) Interest asserted by each Tribe in the child-custody proceeding;^[44]

(v) Whether there has been a previous adjudication with respect to the child by a court of one of the Tribes; and

(vi) Self-identification by the child, if the child is of sufficient age and capacity to meaningfully self-identify.” 25 CFR 23.109(c)(2).

“A determination of the Indian child’s Tribe for purposes of [the] ICWA and the regulations in this subpart do not constitute a determination for any other purpose.” 25 CFR 23.109(c)(3).

3.Confidentiality Concerns

“If court records contain a statement of identifying information of the biological parent or parents that their identity remains confidential, the court shall include the statement of identifying information with the other information sent to the [S]ecretary [of the Interior]^[45] and the tribal enrollment officer of the appropriate Indian tribe described in [MCL 712B.35(1)].” MCL 712B.35(2).

Moreover, “[i]n seeking verification of the child’s status in a voluntary proceeding^[46] where a consenting parent evidences, by written request or statement in the record a desire for anonymity, the court must keep relevant documents pertaining to the inquiry required under this section confidential and under seal.”⁴⁷ 25 CFR 23.107(d). Note, however, that a parent’s request for anonymity “does not relieve the court, agency,^[48] or other party from any duty of compliance with [the] ICWA, including the obligation to verify whether the child is an ‘Indian child.’” Id.

25 USC 1915(c) and 25 CFR 23.129(b) require the court to give weight to a consenting parent’s desire for anonymity when applying placement preferences.⁴⁹

B.Child Custody Proceedings

The ICWA and the MIFPA apply whenever an Indian child is the subject of a child custody proceeding. See 25 USC 1903(1); MCL 712B.3(b); 25 CFR 23.2; 25 CFR 23.103(a). The child custody proceedings include actions involving foster care, guardianship, juvenile guardianship,⁵⁰ preadoptive placements, termination of parental rights, and adoptive placements. 25 USC 1903(1)(i)-(iv); MCL 712B.3(b)(i)-(iv); MCR 3.002(2)(a)-(d); 25 CFR 23.2.

Under MIFPA, “‘[c]hild custody proceeding’ includes, but is not limited to, 1 or more of the following:

(i) Foster care placement. Any action removing an Indian child from his or her parent^[51] or Indian custodian,^[52] and where the parent or Indian custodian cannot have the Indian child returned upon demand^[53] but parental rights have not been terminated, for temporary placement in, and not limited to, 1 or more of the following:

(A) Foster home or institution.^[54]

(B) The home of a guardian or limited guardian under . . . the [E]states and [P]rotected [I]ndividuals [C]ode, . . . MCL 700.5201 to [MCL] 700.5219.

(C) A [J]uvenile [G]uardianship under [MCL 712A.19a or MCL 712A.19c].

(ii) Termination of parental rights. Any action resulting in the termination of the parent-child relationship.^[55]

(iii) Preadoptive placement. Temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but before or in lieu of adoptive placement.

(iv) Adoptive placement. Permanent placement of an Indian child for adoption, including an action resulting in a final decree of adoption.

(v) An Indian child is charged with a status offense^[56] in violation of [MCL 712A.2(a)(2)-(4)] or [MCL 712A.2(d)].

(vi) Child custody proceeding does not include a placement based on an act that, if committed by an adult, would be a crime or based on an award, in a divorce proceeding, of custody to 1 of the parents.” See also 25 USC 1903(1) and MCR 3.002(2), which contain substantially similar definitions of child custody proceedings; 25 CFR 23.2, which contains a substantially similar definition of child custody proceedings except that it uses the phrase “may culminate in one of the following outcomes[,]” rather than the phrase “includes” and specifically excludes emergency proceedings⁵⁷ from the definition.⁵⁸

Note: See Section 19.11 for voluntary proceedings, and Section 19.12 for involuntary proceedings.