Rule 3.807.Indian Child

MCR 3.807 is the adoption subchapter's Indian child rule. It answers the jurisdictional question first, then handles notice, transfer, and intervention, and closes with a records provision that reaches decades past the decree. Every step turns on the same threshold: whether an Indian child, as defined by the Michigan Indian Family Preservation Act, MCL 712B.3, is the subject of the proceeding.

One vocabulary

Subrule (A) does not write its own definitions. When an Indian child, as defined by the Michigan Indian Family Preservation Act, MCL 712B.3, is the subject of an adoption proceeding, the definitions in MCR 3.002 control. Terms the rest of the rule leans on take their meaning from that rule rather than from anything stated here.

Exclusive tribal jurisdiction ends the state case

Subrule (B)(1) is short and absolute. If an Indian child is the subject of an adoption proceeding and an Indian tribe has exclusive jurisdiction as defined in MCR 3.002(6), the matter shall be dismissed. There is no balancing and no discretion.

Notice when jurisdiction is not exclusive

If the tribe does not have exclusive jurisdiction, subrule (B)(2) puts a supervisory duty on the court: it must ensure that the petitioner has given notice of the proceedings to the persons prescribed in MCR 3.800(B). The petitioner performs, but the court is answerable for confirming that it happened.

Transfer to tribal court

Subrule (B)(2)(a) sets a strong presumption in favor of transfer. Either parent, the Indian custodian, or the Indian child's tribe may petition, and the court shall transfer unless either parent objects or the court finds good cause not to transfer. One parent's objection is enough to stop it. Good cause is tightly cabined. When the court makes a good-cause determination under MCL 712B.7, adequacy of the tribe, tribal court, or tribal social services shall not be considered. Beyond that, the person opposing transfer carries the burden, and must show by clear and convincing evidence one of only two things:

• the Indian tribe does not have a tribal court; or
• requiring the parties or witnesses to present evidence in tribal court would cause undue hardship to them that the tribe is unable to mitigate.

The mechanics follow. Under subrule (B)(2)(b) the court shall not dismiss the matter until the tribal court has accepted the transfer, which prevents a gap where no court holds the case. Under subrule (B)(2)(c), if the tribal court declines transfer, the Michigan Indian Family Preservation Act still applies, as do the provisions of these rules that pertain to an Indian child, with MCL 712B.3 and MCL 712B.5 cited for the point. Under subrule (B)(2)(d), a petition to transfer may be made at any time in accordance with MCL 712B.7(3), so the request is not lost by delay.

Intervention

Subrule (B)(3) gives the Indian custodian, the Indian child's tribe, and the Indian child a right to intervene at any point in the proceeding under MCL 712B.7(6). The rule frames it as a right rather than a request the court weighs.

Tribal affiliation after the decree

Subrule (C) looks forward. On application by an Indian individual who has reached the age of 18 and who was the subject of an adoption placement, the court that entered the final decree shall inform that individual of the tribal affiliation, if any, of the biological parents, and provide such other information as may be necessary to protect rights flowing from the tribal relationship. The rule points to 25 USC 1917 for the source of the duty.