3.10Required Procedures for Placement of Indian Children in Status Offense Cases
The Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq.,45 generally require state courts to adhere to certain minimum procedural requirements before removing an Indian child46 from his or her home. 25 USC 1902; MCL 712B.7(2); MCL 712B.9. Except for cases of emergency removal, an Indian child must not be removed from the home, or remain removed from the home pending further proceedings, unless there is clear and convincing evidence, including the testimony of at least one qualified expert witness,47 that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 25 USC 1912(e); MCL 712B.15(2).
For a detailed discussion of placement of Indian children, 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).
For a detailed discussion of placement of Indian children, see the Michigan Judicial Institute’s Child Protective Proceedings Benchbook, Chapter 19. See Section 2.15 for a brief discussion of jurisdictional and procedural rules applicable to Indian children charged with status offenses.
45. 2012 PA 565, effective January 2, 2013.
46. 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); 25 USC 1903(4).
47. Under the MIFPA, the qualified expert witness must have “knowledge of the child rearing practices of the Indian child’s tribe[.]” MCL 712B.15(2).