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Michigan Supreme Court honors ICWA
Michigan SCT Adopts
“Conditional Reversal” Rule for Indian Child Welfare Act (ICWA) Notice Violations
An excerpt from Justice Cavanagh’s unanimous opinion:
While it is impossible to articulate a precise rule that will encompass every
possible factual situation, in light of the interests protected by ICWA, the
potentially high costs of erroneously concluding that notice need not be sent,
and the relatively low burden of erring in favor of requiring notice, we think
the standard for triggering the notice requirement of 25 USC 1912(a) must be a
cautionary one. Therefore, we hold first that sufficiently reliable information
of virtually any criteria on which tribal membership might be based suffices to
trigger the notice requirement. We hold also that a parent of an Indian child
cannot waive the separate and independent ICWA rights of an Indian child’s tribe
and that the trial court must maintain a documentary record including, at
minimum, (1) the original or a copy of each actual notice personally served or
sent via registered mail pursuant to 25 USC 1912(a) and (2) the original or a
legible copy of the return receipt or other proof of service showing delivery of
the notice.1
Finally, we hold that the proper remedy for an ICWA-notice
violation is to conditionally reverse the trial court and remand for resolution
of the ICWA-notice issue.
HAPPY HAPPY HAPPY - this protects Indian children - so let's have all the other states do this and follow ICWA rules in every case! Trace
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