In re Morris
491 Mich. 81
| Mich. | 2012Background
- ICWA notice requirements (25 USC 1912(a)) at issue in two Michigan termination cases.
- Cases involve indeterminate tribal status but sufficient indicia of Indian heritage to trigger tribal notice.
- Trial courts failed to determine notification adequacy and to maintain ICWA-related documentary records.
- Court weighs whether a parent can waive tribal rights and how to document compliance.
- Court chooses conditional-reversal as the remedy for ICWA-notice violations and outlines recordkeeping needs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether notice was triggered under 25 USC 1912(a). | Morris/Gordon: indicia showed possible Indian child requiring notice. | Morris/Gordon: despite indicia, proper notice not shown in record. | Notice triggered; records prevented proper determination. |
| Whether a parent can waive tribal rights or notice. | Parent cannot waive tribe’s rights or notice. | Waiver could extinguish tribal rights via misconceived assumption. | Waiver invalid; tribes retain independent rights under ICWA. |
| What recordkeeping is required for 25 USC 1912(a) compliance. | Record should reflect notices and return receipts; DHS duties exist. | Recordkeeping was incomplete but substantial compliance possible. | Court requires: original notices and legible return receipts; additional correspondence advisable. |
| What remedy is appropriate for ICWA-notice violations. | Adopt conditional-affirmance or automatic reversal as remedy. | Prefer conditional reversal to preserve resources; avoid automatic reversal. | Conditional reversal is the proper remedy; overrules prior IEM approach. |
| Impact of ICWA applicability on ongoing proceedings when notice is unresolved. | If ICWA applies, restart proceedings under ICWA; otherwise terminate under state law. | Proceedings may continue if ICWA not applicable or tribal response timely. | Remand to determine ICWA applicability; if not applicable, reinstatement of state-term orders; if applicable, vacate and restart under ICWA. |
Key Cases Cited
- Mississippi Band of Choctaw Indians v Holyfield, 490 U.S. 30 (U.S. Supreme Court 1989) (ICWA objectives and tribal rights highlighted)
- In re MCP, 571 A.2d 627 (Vt. 1989) (illustrative in ICWA context as to caution in tribal-notice)
- In re Antoinette S, 104 Cal. App. 4th 1401 (Cal. App. 4th 2002) (minimal showing to trigger notice; ‘may be Indian child’ standard)
- In re Elizabeth W, 120 Cal. App. 4th 900 (Cal. App. 2004) (conditional notice/notice repercussions in ICWA context)
- In re IEM, 233 Mich. App. 438 (Mich. Ct. App. 1999) (addressed remedy for ICWA-notice violations)
- In re NAH, 418 N.W.2d 310 (S.D. 1988) (automatic reversal under ICWA-notice depends on sovereignty/eligibility)