11.10Jurisdiction

“The court in any voluntary or involuntary child-custody proceeding involving an Indian child must determine the residence and domicile of the Indian child.”¹ 25 CFR 23.110(a). This will help guide the court in determining whether it has jurisdiction over the proceeding. Jurisdiction types include exclusive, concurrent, limited due to an emergency, and agreed-upon.

State court jurisdiction. A State court has jurisdiction over an Indian child-custody proceeding in the following situations:

(1) Concurrent jurisdiction where the Indian child is domiciled or resides off an Indian reservation and is not a ward of the Tribal court, 25 USC 1911(b), MCL 712B.7(3); and

(2) 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).² 25 USC 1922; MCL 712B.7(2); MCR 3.974(C)(1); Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act,³ 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 court jurisdiction. A Tribe has jurisdiction over an Indian child-custody proceeding in the following situations:

(1) Exclusive jurisdiction where the Indian child is domiciled or resides on an Indian reservation where the Tribe exercises exclusive jurisdiction over child-custody proceedings, 25 USC 1911(a), MCL 712B.7(1), MCR 3.002(6), 25 CFR 23.110(a);

(2) Exclusive jurisdiction where 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).

Tribal-State agreements regarding jurisdiction. The state may enter into agreements with tribes regarding, among other things, jurisdiction over child-custody proceedings.⁴ 25 USC 1919(a), MCL 712B.31(1). The agreements “may provide for transfer of jurisdiction on a case-by-case basis” and “concurrent jurisdiction between the state and Indian tribes.” MCL 712B.31(1); see also 25 USC 1919(a), which contains substantially similar language.

A.Mandatory Transfer of Case to Tribal Court

If an Indian Tribe has exclusive jurisdiction over an adoption proceeding, the State court must dismiss the matter, notify the Tribe of the pending dismissal, and ensure that the Tribe is sent all information regarding the proceeding. MCR 3.807(B)(1); 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,⁵ 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 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 3.807(B)(1).

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. 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, 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 domiciled or resides off the Indian reservation 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 adoption proceeding, the court must ensure that the petitioner gave notice of the proceedings to the interested parties. MCR 3.807(B)(2). See MCL 710.24a and MCR 3.800(B) for lists of the interested parties. For information on notice requirements, see Section 11.8.

If either parent, the Indian custodian, or the Indian child’s Tribe requests that the proceeding be transferred to the Tribal court, 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 3.807(B)(2)(a); 25 CFR 23.117.

Note: The State court must not dismiss the case until the transfer has been accepted by the Tribal court. MCR 3.807(B)(2)(b).

1.Request for Transfer of Case to Tribal Court

Either parent, the Indian custodian, or the Indian child’s Tribe may request a transfer of the adoption proceeding to a Tribal court at any time. MCL 712B.7(3); MCR 3.807(B)(2)(d). See also 25 CFR 23.115(a), which permits “[e]ither parent, the Indian custodian, or the Indian child’s Tribe [to] 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.”

Note: “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.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act,⁶ 81 Federal Register 96476, F.2 (2016).

Once the court receives a request to transfer the adoption proceeding to a Tribal court, the court “must ensure that the Tribal court is promptly notified in writing of the [request for transfer].”⁷ 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.

2.Parental Objection to 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); MCL 712B.7(3); MCR 3.807(B)(2)(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,⁸ 81 Federal Register 96476, F.4 (2016).

3.Good Cause Not to Transfer

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); MCL 712B.7(3); MCR 3.807(B)(2)(a).

“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).

Under MIFPA, good cause may exist “only if the person opposing the transfer shows by clear and convincing evidence^[9] 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.” MCL 712B.7(5). See also MCR 3.807(B)(2)(a), which contains substantially similar requirements.

“[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)”).

“By its plain language, good cause not to transfer an Indian child custody proceeding to a tribal court under MCL 712B.7(5)(b) has three components. First, there must be an undue hardship on the parties or witnesses that will be required to present evidence in the tribal court. . . . Second, the undue hardship must stem from the requirement to present evidence in the tribal court. . . . Third, 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 at 671-672 (trial court erred in finding good cause not to 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] were required 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 any anticipated undue hardship”).

“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;^[10] 

(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; 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) (emphasis added). See also MCL 712B.7(4) and MCR 3.807(B)(2)(a), which prohibit the court from considering the “adequacy of the tribe, tribal court, or tribal social services” when making a good cause determination.

“[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,¹¹ 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).

4.Declination of Transfer

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); MCL 712B.7(3); MCR 3.807(B)(2)(b). On a declination of transfer, the court must apply MIFPA and applicable court rule provisions as they pertain to the Indian child. MCR 3.807(B)(2)(c).

“[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,¹² 81 Federal Register 96476, F.4 (2016).

5.Acceptance of Transfer

“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 3.807(B)(2)(b).

”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).