2.15Transfer of Jurisdiction in Status Offense and “Wayward Minor” Cases Involving Indian Children
The Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., mandates that state courts adhere to certain minimum procedural requirements before removing an Indian child54 from his or her home. 25 USC 1902. To this end, the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq., sets out requirements and procedures that apply in child custody proceedings55 involving an Indian child56 or a child whom the court knows or has reason to know may be an Indian child.
Neither the ICWA nor the MIFPA applies to a placement based upon an act which, if committed by an adult, would constitute a crime. 25 USC 1903(1); MCL 712B.3(b)(vi). Thus, the requirements of the ICWA and the MIFPA, as relevant to juvenile offenders, apply only to Indian children who are accused of status offenses (running away from home, incorrigibility, truancy, or status as a so-called “wayward minor”). See MCL 712B.3(b)(v) (providing that the term “[c]hild custody proceeding” includes a proceeding in which “[a]n Indian child is charged with a status offense in violation of [MCL 712A.2(a)(2)-(4)] or [MCL 712A.2(d)][]”).57
“An Indian tribe has exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of that tribe[]” or who “is a ward of a tribal court[.]” MCL 712B.7(1); see also 25 USC 1911(a); MCR 3.002(6). Moreover, “for an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer [a child custody] proceeding to the Indian tribe’s jurisdiction, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe, provided that the transfer is subject to declination by the tribal court of the Indian tribe.” MCL 712B.7(3). Additionally, in any child custody proceeding involving an Indian child, “the Indian custodian of the child and the Indian child’s tribe have a right to intervene at any point[,]” and “[o]fficial tribal representatives have the right to participate in any proceeding that is subject to the [ICWA] and [the MIFPA].” MCL 712B.7(6)-(7). In any such proceeding, if the court knows or has reason to know that a juvenile who is charged with a status offense is an Indian child “and an Indian tribe does not have exclusive jurisdiction as defined in MCR 3.002(6)[,]” the petitioner must notify the Indian child’s parent, Indian custodian, and tribe of any pending proceedings. MCR 3.920(C)(1); 25 CFR 23.11(a); see also MCL 712B.9(1). Notice must be made by registered mail with return receipt requested. MCR 3.920(C)(1); see also MCL 712B.9(1). Copies of the notices must be sent to the Minneapolis Regional Director of the Bureau of Indian Affairs by registered mail with return receipt requested. See MCL 712B.9(1); MCR 3.920(C)(1); 25 CFR 23.11(a); 25 CFR 23.11(b)(2); see also In re Morris, 491 Mich 81, 104 n 14 (2012).
Accordingly, if there is any indication that a juvenile accused of a status offense is, or may be, an Indian child, the court must comply with the jurisdictional and procedural requirements of the ICWA and the MIFPA. For a thorough discussion of these requirements, see the Michigan Judicial Institute’s Child Protective Proceedings Benchbook, Chapter 19.
. The ICWA “requires a state court to place an Indian child with an Indian caretaker, if one is available,” and applies “even if the child is already living with a non-Indian family and the state court thinks it in the child’s best interest to stay there.” Haaland v Brackeen, 599 US 255, 264 (2023). “This case arises from three separate child custody proceedings governed by ICWA,” wherein “a birth mother, foster and adoptive parents, and the State of Texas challenge the Act on multiple constitutional grounds . . . argu[ing] that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race.” Id. at 264, 268. The United States Supreme Court rejected “all of petitioners’ challenges to the statute,” and affirmed “Congress’s constitutional authority to enact ICWA.” Id. at 264, 296 (upholding the validity of ICWA).
See the Michigan Judicial Institute’s Child Protective Proceedings Benchbook, Chapter 19, for a thorough discussion of the ICWA and of jurisdiction over proceedings involving Indian children.
54. Under the ICWA, an “Indian child” is “any unmarried person who is under age 18 and is either (a) a member of an Indian tribe, or (b) is [sic] eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 USC 1903(4); see also MCL 712B.3(k); MCR 3.002(12), which contain substantially similar language except that they do not require the child to be the biological child of a tribal member. Rather, the child must be eligible for membership “as determined by that Indian tribe.”
55. 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). In Michigan, the term “child custody proceeding” includes situations where “[a]n Indian child is charged with a status offense[,]” MCL 712B.3(v), and “[a]ny action removing an Indian child from his or her parent or Indian custodian, and where the parent or Indian custodian cannot have the Indian child returned upon demand but parental rights have not been terminated, for temporary placement in” an institution or elsewhere, MCL 712B.3(b)(i).” See also 25 CFR 103(a)(1)(iii) and 25 CFR 23.2, the corresponding ICWA regulations.
56. Under the MIFPA, “‘Indian child’ means an unmarried person who is under the age of 18 and is either . . . (i) [a] member of an Indian tribe[ or] (ii) [e]ligible for membership in an Indian tribe as determined by that Indian tribe.” MCL 712B.3(k); see also MCR 3.002(12). Unlike the definition of “‘Indian child’” in the ICWA, 25 USC 1903(4), there is no requirement that a child who is not a member of an Indian tribe be “the biological child of a member of an Indian tribe[]” in order to qualify as an “‘Indian child’” under the MIFPA or MCR 3.002(12).
57. The MIFPA and the Michigan Court Rules refer to the “wayward minor” provisions of MCL 712A.2(d) as “status offenses.” See MCL 712B.3(b)(v); MCR 3.903(F); MCR 3.905(B); MCR 3.905(C); MCR 3.935(B)(5). See Section 2.3 for additional discussion of jurisdiction over status offenders, including wayward minors.