Applicability of the Indian Child Welfare Act (ICWA) & Michigan Indian Family Preservation Act (MIFPA); “Indian child” (25 USC § 1903(4)); § 1914

Holding that the ICWA and the MIFPA did not apply, the court affirmed the trial court’s order terminating respondents’ parental rights. They argued on appeal that “they were denied due process because the ICWA is unconstitutional and denied them the right to participate in proceedings.” However, the court noted that the “the Cherokee Nation, United Keetoowah Band of Cherokee Indians, and the Eastern Band of Cherokee Indians each determined that” respondents’ children were “not members of their respective tribe or eligible for membership. These determinations were provided in written correspondence to” a CPS investigator (R) in 2017, and again in early 2021, when the Cherokee Nation resolved its omission of one of the children from its 2017 correspondence to R. As a result, the children “are not ‘Indian’ children as defined in” § 1903(4). Thus, § 1914 did not apply to the facts here. Respondents contended that the ICWA is flawed, and questioned “the thoroughness of the search conducted by the Cherokee Tribes to determine” the children’s membership eligibility. They also asserted “that under ICWA, a parent is afforded the right to petition an Indian tribe. But respondents premise this assertion on the false notion that their minor children have Native American heritage.” Further, they failed to “cite any mandatory or persuasive authority in support of this alleged procedural right of parents claiming Native American heritage.” The court added that the record did not support their “claim that the tribes did not engage in a meaningful review of” the children’s possible tribal membership. “Respondents’ representation that the tribes merely confirmed receipt of [R’s] correspondence advising the tribes of the pending child protective proceedings is untrue. The Cherokee Nation, United Keetoowah Band of Cherokee Indians, and the Eastern Band of Cherokee Indians each acknowledged receipt of [R’s] notice, stated that they had examined their tribal records, enrollment records, and tribal registries, and concluded that” the children were not Indian children.