Rule 3.905.Indian Children; Jurisdiction, Notice, Transfer, Intervention

MCR 3.905 governs the jurisdictional questions that come first when an Indian child is the subject of a protective proceeding or is charged with a status offense in violation of MCL 712A.2(a)(2)-(4) or (d). The rule is built around a single division: whether an Indian tribe has exclusive jurisdiction as defined in MCR 3.002(6).

Exclusive tribal jurisdiction

Where the tribe has exclusive jurisdiction and the matter is not before the state court as a result of an emergency removal under MCL 712B.7(2), subrule (A) requires dismissal. There is no balancing to do.

Subrule (B) covers the emergency case. Where the tribe has exclusive jurisdiction and the child came before the state court on an emergency removal, the state court holds the matter only as long as the emergency lasts. It shall dismiss once either of two things happens: the tribe notifies the state court that it is exercising its jurisdiction, or the emergency no longer exists.

Notice and transfer when jurisdiction is not exclusive

If the tribe does not have exclusive jurisdiction, subrule (C) puts a verification duty on the court. It shall ensure that the petitioner has given notice of the proceedings to the persons described in MCR 3.921 in accordance with MCR 3.920(C). The court checks the notice rather than assuming it.

Subrule (C)(1) then sets the transfer framework. Either parent, the Indian custodian, or the Indian child's tribe may petition to transfer the proceeding to tribal court, and the court shall transfer unless either parent objects or the court finds good cause not to transfer. Two limits shape that finding:

• The adequacy of the tribe, the tribal court, or tribal social services shall not be considered.
• Good cause exists only if the person opposing transfer shows by clear and convincing evidence that the tribe does not have a tribal court, or that requiring the parties or witnesses to present evidence in tribal court would cause them undue hardship that the tribe is unable to mitigate.

Timing is open. Subrule (C)(4) says a petition to transfer may be made at any time in accordance with MCL 712B.7(3), so the rule sets no cutoff of its own.

Completing or declining the transfer

Subrule (C)(2) closes the gap that would otherwise leave a child in neither forum: the court shall not dismiss the matter until the transfer has been accepted by the tribal court. If the tribal court declines the transfer, subrule (C)(3) keeps the case in state court, where the Michigan Indian Family Preservation Act and the provisions of these rules that pertain to an Indian child continue to apply.

Subrule (D) is separate from transfer. The Indian custodian, the Indian child's tribe, and the Indian child have a right to intervene at any point in the proceeding under MCL 712B.7(6).