american indian law section public policy...
TRANSCRIPT
Position Adopted: January 15, 2018 1
AMERICAN INDIAN LAW SECTION
AMERICAN INDIAN LAW SECTION
Public Policy Position
Case Number 155994, In re Williams
The American Indian Law Section Supports the Submission of an Amicus Brief in In re
Williams.
Contact Person: Tanya Gibbs Email: [email protected]
The American Indian Law Section is a voluntary membership section
of the State Bar of Michigan, comprised of 254 members. The
American Indian Law Section is not the State Bar of Michigan and the
position expressed herein is that of the American Indian Law Section
only and not the State Bar of Michigan. To date, the State Bar does not
have a position on this item.
The American Indian Law Section has a public policy decision-making
body with 10 members. On January 15, 2018, the Section adopted its
position after discussion and vote at a scheduled meeting. 7 members
voted in favor of the Section’s position on In re Williams, 0 members
voted against the position, 3 members abstained from voting.
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STATE OF MICHIGAN IN THE SUPREME COURT
APPEAL FROM THE MICHIGAN COURT OF APPEALS J. Sawyer, presiding
In re WILLIAMS, Minors. __________________________________ /
Supreme Court No. 155994 Court of Appeals No. 335932 Macomb CC Family Div. File Nos. 2012-000291-NA 2012-000292-NA
ORAL ARGUMENT NOT REQUESTED
AMICUS CURIAE BRIEF
BY THE AMERICAN INDIAN LAW SECTION OF THE STATE BAR OF MICHIGAN
IN SUPPORT OF THE MICHIGAN INDIAN FAMILY PRESERVATION ACT
Dated: January 16, 2018
/s/ Tanya Gibbs Tanya Gibbs (P78619)
Rosette, LLP On behalf of AILS Amicus Curiae as Chairperson 25344 Red Arrow Highway
Mattawan, MI 49071 Telephone: (269) 283-5005 Fax: (517) 913-6443 [email protected]
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TABLE OF CONTENTS
INDEX OF AUTHORITIES .......................................................................................................... ii STATEMENT OF JUDGMENT / ORDER APPEAL FROM AND RELIEF SOUGHT .............. v
STATEMENT OF JURISDICTION ............................................................................................. vi STATEMENT OF INTEREST BY AMICUS CURIAE .............................................................. vii QUESTION PRESENTED .......................................................................................................... viii Statement of Facts and Procedural History ......................................................................................... 1
ARGUMENT ................................................................................................................................... 3
A. Background on the Indian Child Welfare Act and the Michigan Indian Family Preservation Act. .......................................................................................................................... 3
B. Over two centuries, courts have adopted canons of construction to interpret Indian treaties and laws enacted for the benefit of Indians. .................................................................... 5
C. State courts have applied the Indian law canons of construction, including in cases involving the Indian Child Welfare Act. ..................................................................................... 7
D. As applied to this case, MIFPA’s language is ambiguous; and, this Court should rely upon the Indian law canons of construction to interpret MIFPA’s ambiguous provisions. ............... 10
CONCLUSION.............................................................................................................................. 13
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INDEX OF AUTHORITIES
Cases
Bryan v Itasca Cty Minn 426 US 373; 96 SCt 2102 (1995) .................................................................................................... 8 Cabazon Band of Mission Indians v Smith 34 F Supp 2d 1195, n 7 (CD Cal 1998) ........................................................................................... 7 Empson-Laviolette v Crago 280 Mich App 620; 760 NW2d 793 (2008) ............................................................................. 10, 13 Grand Traverse Band of Ottawa and Chippewa Indians v United States Attorney 369 F3d 960 (6th Cir 2004) .............................................................................................................. 7 In re JJW 320 Mich App 88, 902 NW 2d 901 (2017) .................................................................................... 11 In re Kiogima 189 Mich App 6; 472 NW2d 13 (1991) ........................................................................................... 5 In re Project Cost & Special Assessment Roll for Chappel Dam 282 Mich App 142; 762 NW2d 192 (2009) ................................................................................... 12 In re RS 805 NW2d 44, 50 (Minn 2011) ....................................................................................................... 9 In re Sanders
495 Mich 394; 852 NW2d 524 (2014) ............................................................................................ 1 In re Welfare of the Child of RS 793 NW2d 752 (Minn App 2011) ............................................................................................. 8, 12 In re Williams 320 Mich App 88; 902 NW2d 901 (2017) ........................................................................................... 3 Keweenaw Bay Indian Community v Naftaly 452 F3d 514 (6th Cir 2006) .............................................................................................................. 7 Mayor of Cadillac v Blackburn 306 Mich App 512; 857 NW2d 529 (Mich App 2014) ................................................................. 11
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Michigan v Bay Mills Indian Community
572 US ___; 134 S Ct 2024, 2038 (2014) ....................................................................................... 7 Mississippi Band of Choctaw Indians v Holyfield 490 US 30; 109 SCt 1597 (1989) .................................................................................................... 4 Montana v Blackfeet Tribe 471 US 759, 766; 105 SCt 2399 (1985) .......................................................................................... 6 Native Village of Venetie v State of Alaska 944 F2d 548 (9th Cir 1991) .............................................................................................................. 7 Oneida Indian Nation of New York v Burr 522 NYS2d 742; 132 AD2d 402 (NY App Div 1987) .................................................................... 8 People v Jondreau 384 Mich 539; 185 NW2d 375 (1971) ...................................................................................... 9, 12 People v LeBlanc 399 Mich 31; 248 NW2d 199 (1976) .................................................................................. 9, 10, 12 People v. McIntire 461 Mich 147; 599 NW2d 102 (1999) .......................................................................................... 12 State ex rel CD 200 P3d 194; 2008 UT App 477 (2008) .......................................................................................... 8 State v Eriksen 166 Wash2d 953; 216 P3d 382 (2009) ............................................................................................ 8 State v Jim 156 Wash App 39; 230 P3d 1080 (2010) ........................................................................................ 8 State v McCormack 793 P2d 682; 117 Idaho 1009 (Id 1990) .................................................................................... 8, 12 United States v Michigan 471 F Supp 192 (WD Mich 1979) ................................................................................................... 7 Worcester v Georgia 31 US 515 (1832) ........................................................................................................................... 10 Worcester v Georgia 31 US 515; 8 LEd 483 (1830) .......................................................................................................... 6
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Statutes 12 U.S.C. § 1913(a) ......................................................................................................................... 1 25 U.S.C. § 1901.............................................................................................................................. 3 25 U.S.C. § 1902 ....................................................................................................................... 1, 3, 8 MCL 712B.1 ........................................................................................................................... passim MCL 712B.13 ................................................................................................................................ 11 MCL 712B.13(1) ............................................................................................................................. 4 MCL 712B.13(1)(a) ...................................................................................................................... 1, 2 MCL 712B.13(3) ............................................................................................................... 2, 5, 10, 13 MCL 712B.15 .................................................................................................................................. 5 MCL 712B.3(k) ............................................................................................................................... 4
Rules MCR 7.205(F) ................................................................................................................................... 2
Other Sources Cohen’s Handbook of Federal Indian Law, 2005 Ed. ..................................................................... 7 Michigan Indian Family Preservation Act of 2013 and Indian Child Welfare Act of 1978: A
Court Resource Guide ........................................................................................................ 4, 5, 12
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STATEMENT OF JUDGMENT /
ORDER APPEAL FROM AND RELIEF SOUGHT
On June 8, 2017, the Court of Appeals affirmed the Macomb County Circuit Court’s denial
of Appellant-father’s withdrawal of consent to terminate his parental rights.
The American Indian Law Section of the State Bar of Michigan (“AILS”) respectfully
requests that this Court reverse and remand to the Court of Appeals and apply the Indian law
canons of construction to resolve ambiguous language in the Michigan Indian Family Preservation
Act in favor of Indians.
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STATEMENT OF JURISDICTION
This Court has jurisdiction over this matter pursuant to MCR 7.303(B)(1). This Court
invited AILS to file this amicus curiae brief by Order on September 27, 2017.
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STATEMENT OF INTEREST BY AMICUS CURIAE
AILS was formed for the purpose of furthering the development and improvement of
American Indian law by advocating on proposed state and federal legislation, judicial rules, and
public policy. Further, AILS provides support and assistance to attorneys in their relationships
with any individual, group or other lawful entity involved with issues of concern to American
Indians. As such, AILS has, on several occasions, been asked to submit an amicus curiae brief in
cases that directly impact the rights of American Indians and their tribes.
The Court of Appeals’ decision in this case will affect the ability of the twelve federally-
recognized American Indian tribes located in Michigan and their tribal members (“Michigan
Tribes” or “tribal members”) to exercise their rights afforded under the MIFPA. Further, the
Court of Appeals’ decision is contrary to the centuries old interpretation of Indian statutes and
treaties under the Indian law canons of construction.
AILS members have litigated numerous cases, both within and outside of Michigan,
relying on the scope and application of ICWA and MIFPA. Additionally, AILS members
represent or work regularly with Michigan Tribes and tribal members. Therefore, AILS
members’ collective experience and expertise in American Indian law puts AILS in a unique
position to inform this Court of the practical import of the Court of Appeals opinion on Michigan
Indian Law. AILS urges this Court to realize the detrimental effect the Court of Appeals’ opinion
will have on American Indian statutory interpretation, beyond the interests of the litigants here.
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QUESTION PRESENTED
1. Under the Michigan Indian Family Preservation Act, MCL 712B.1 et seq., was the respondent-father entitled to withdraw his consent to the termination of his parental rights for the purpose of adoption at any time before entry of a final order of adoption?
Appellee’s answer: No. Appellant’s answer: Yes. The trial court’s answer: No. The Court of Appeals answer: No. AILS’ answer: Yes.
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Statement of Facts and Procedural History
The facts in this case are both complex and vexing. The parties have set forth the relevant facts
and the AILS relies upon the Appellant’s representation of those facts for purposes of this brief.
This case is about how the Court will interpret the Michigan Indian Family Preservation Act
(MIFPA), MCL 712B.1 et seq. regarding the voluntary release of parental rights. The children at issue
in this case are Indian children as defined by both the federal Indian Child Welfare Act (ICWA), 25
U.S.C. 1902 et seq., and MIFPA, MCL 712B.1-41. Appellant Jack Williams, father of the children in
this case, is a member of the federally recognized Sault Ste. Marie Tribe of Chippewa Indians. Both
children are eligible for membership in the Sault Ste. Marie Tribe of Chippewa Indians. Therein, both
children and the Appellant qualify for the protections afforded to them under MIFPA.
Respondent-Appellant's children were removed from the care of their mother and "placed
with/returned to the Department of Human Services for care and supervision" by an ex parte order
of the Macomb County Circuit Court on September 9, 2012, 2012-291-NA and 2012-292-NA.
Preliminary, adjudication, disposition, and disposition review hearings were held. On August 14,
2014, Appellant Williams became a respondent in the case after making a plea to the second
amended petition in accordance with In re Sanders, 495 Mich 394; 852 NW2d 524 (2014).
On May 15, 2015, Appellant Williams executed a release for adoption under Sections 28 and
29 of the Adoption Code. May 15, 2015, Transcript at page 6, lines 6-7.1 Appellant Williams
voluntarily relinquished his parental rights, not in front of a judge as required by both ICWA, 12 U.S.C.
1913(a) and MIFPA, MCL 712B.13(1)(a), but instead in front of Referee George Keller (May 15, 2015
Transcript at page 4). This clear error brings us before the Court to determine whether the plain
language of ICWA and MIFPA requiring such releases to occur before a judge invalidates the
Appellant’s consent. The Referee also chose to use State Court Administrative Office (SCAO) release
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form PCA 305 instead of the required form, PCA 305-I. The Court must also determine whether failure
to use PCA 305-I invalidates consent under MCL 712B.13(1)(a).
That same day, Appellant Williams also signed a Statement to Accompany Release for both
cases, attached as Exhibits D and E. Paragraph one of each Statement recites "I am the parent or
guardian of the adoptee and I intend to sign a release of the child for purposes of adoption."
(emphasis supplied). On May 15, 2015, the Macomb County Circuit Court entered an Order
Terminating Parental Rights After Release or Consent, in both cases. The parental rights to both
biological parents were terminated on that date.
The couple, Michele Austin and Tamara Gabourie, a married, same-sex couple and the foster
parents at the time Appellant Williams signed a release of his parental rights, sought to adopt the two
children in Oakland County, 2015-837756-AM, 2015-837757-AM. Their application was denied. On
July 11, 2016, after the foster parents' application was denied but before the children were removed from
the then-foster parents, Appellant Williams filed a Notice and Demand with the Macomb County Circuit
Court revoking his voluntary relinquishment of parental rights and asking for the return of his children as
he is allowed under the plain language of MIFPA at 712B.13(3). Appellant Williams wanted the foster
parents caring for his children to adopt his children. When the trial court denied the foster parents’
application for adoption, he decided to withdraw his consent to the termination of his parental rights.
"Once a demand is filed with the court, the court shall order the return of the Indian child." MCL
712B.13(3). Instead of returning the children, the lower court ordered briefing and issued its Opinion and
Order denying his withdrawal on October 12, 2016.
A direct appeal of the October 12, 2016 Opinion and Order was filed with the Court of Appeals
on October 28, 2016, in COA No 335497. On November 8, 2016, the Court of Appeals dismissed that
appeal for lack of jurisdiction. Accordingly, the Court of Appeals proceeded under MCR 7.205(F) and
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granted leave to appeal on December 19, 2016. The adoption appeal and the revocation of parental
rights cases were consolidated at the Court of Appeals. In a published decision, the Court of Appeals
affirmed the trial court’s decision. In re Williams, 320 Mich App 88; 902 NW2d 901 (2017). The Court,
however, rejected the trial court’s reasoning, finding that “[c]ontrary to the circuit court’s reasoning in
this case, respondent father could have consented . . . without consenting to a particular adoptive
placement and by consenting to the termination of his parental rights for the express purpose of
adoption” and that a “specific adoptive placement was not required.” Id. at 917. Nevertheless, the Court
still ruled that even though Appellant Williams had consented to terminate his parental rights by
executing a release of his rights under the Adoption Code, he could not withdraw that consent because
he had not taken an additional step the Court determined was required under MIFPA. 111a. The Court,
however, did not specify what exactly that step required or what provision in MIFPA, the Juvenile
Code, or the Adoption Code mandated such an additional step. Instead, it summarily concluded that
“[b]ecause the requirements of MCL 712B.13(3) were not satisfied, any withdrawal provision in that
subsection does not apply to this particular case.” Id. at 916.
ARGUMENT
A. Background on the Indian Child Welfare Act and the Michigan Indian Family
Preservation Act.
Congress enacted the Indian Child Welfare Act, Pub L 95-608, 25 U.S.C. §§ 1901 et seq
(“ICWA”) in 1978 to promote the stability of Indian families, establish uniform national standards
governing the removal of Indian children from their families, and to preserve tribal jurisdiction
over certain proceedings involving Indian children. See 25 U.S.C. § 1902. ICWA was enacted in
response to a crisis in which Indian children were being removed from their families and tribal
communities en masse. 25 U.S.C. § 1901. ICWA ensures that tribal courts retain exclusive
jurisdiction over cases involving Indian children who live on the reservation, allows for concurrent
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jurisdiction in state and tribal courts over certain other cases, and establishes an order of preference
for the placement of Indian children that is intended to maintain tribal familial connections and a
connection between the child and his or her tribe. See Mississippi Band of Choctaw Indians v
Holyfield, 490 US 30; 109 SCt 1597 (1989).
In 2009, the Michigan Court Improvement Program recommended to this Court that the
Michigan Court Rules be amended to expressly address ICWA’s mandates in all rules applicable
to child abuse and neglect cases, guardianships, and adoptions. See Michigan Indian Family
Preservation Act of 2013 and Indian Child Welfare Act of 1978: A Court Resource Guide, at 1,
State Court Administrative Office (the “2017 Court Resource Guide”).1 The Court Improvement
Program’s Tribal Court Relations Committee later drafted proposed state legislation to address
Indian child welfare proceedings in Michigan’s state courts. Id. The Legislature adopted the Court
Improvement Program’s draft legislation in 2013, which was titled the Michigan Indian Family
Preservation Act, 2012 PA 565, MCL 710.21 et seq (“MIFPA”).
MIFPA establishes state law standards for child welfare and adoption proceedings
involving Indian children.2 MIFPA was largely enacted to implement the Indian Child Welfare
Act, fill gaps in the federal law, and to preserve Indian families. See Court Resource Guide at 3.
Under MIFPA, a parent may consent to the termination of parental rights or to adoptive
placement of Indian children. A parent may also consent to the termination of their parental rights
“for the express purpose of adoption….” MCL 712B.13(1). A parent may withdraw their consent
1 Available at http://courts.mi.gov/Administration/SCAO/OfficesPrograms/CWS/CWSToolkit/Documents/2017_MIFPA_ICWA_Court_Resource_Guide_July2017.pdf (last accessed on January 8, 2018). 2 An “Indian child” is defined as “an unmarried person who is under the age of 18 and is either of the following: (i) A member of an Indian tribe[;] (ii) Eligible for membership in an Indian tribe as determined by that Indian tribe.” MCL 712B.3(k).
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to placement of an Indian child for purposes of adoption at any time prior to the entry of a final
order of adoption. See MCL 712B.13(3)(“A parent who executes a consent under this section may
withdraw his or her consent at any time before entry of a final order of adoption by filing a written
demand requesting the return of the Indian child.”). The parent seeking to withdraw consent to
adoption is not required to give a reason for withdrawal of that consent – it may be made for any
reason, so long as the withdrawal is made prior to entry of a final order of adoption. See, Court
Resource Guide at 48 (“Under ICWA and MIFPA parents may withdraw consent to adoptive
placement for any reason at any time prior to the entry of a final decree of adoption.”) (citing In re
Kiogima, 189 Mich App 6; 472 NW2d 13 (1991)).3
MIFPA does not expressly address the withdrawal of a parent’s voluntary consent to the
termination of parental rights. The Court Resource Guide addresses this fact, noting “a voluntary
consent to termination of parental rights under the threat of termination by the state should still
follow MCL 712B.15, and the court should make the required findings.”
B. Over two centuries, courts have adopted canons of construction to interpret Indian
treaties and laws enacted for the benefit of Indians.
The United States Congress routinely enacts special statutes applicable to Indian tribes,
their members, and their lands. These statutes include the trade and intercourse acts adopted in
the earliest sessions of Congress,4 as well as the Indian Child Welfare Act of 1978, Pub L 95-608,
25 U.S.C. §§ 1901 et seq (“ICWA”). Title 25 of the United States Code is simply titled “Indians,”
and consists entirely of statutes enacted to administer Indian affairs. In addition to those statutes,
3 In re Kiogima involved the interpretation of ICWA, rather than MIFPA (which was not yet adopted). But, MIFPA preserved the ability to withdraw consent. 4 Congress adopted several statutes governing trade and intercourse with Indian tribes between 1790 and 1834. Collectively, these statutes are known as the “Non-Intercourse Act,” and are found at 25 U.S.C. § 177.
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the United States Senate has also ratified a large number of treaties between the United States and
various Indian tribes. Those treaties also carry the force of law under the United States
Constitution. See US Const Art VI (“…all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the land[.]”).
The federal courts have adopted special canons of construction to interpret Indian statutes
and treaties. The Indian law canons of construction were first applied by the U.S. Supreme Court
in Worcester v Georgia, 31 US 515; 8 LEd 483 (1830), where Chief Justice Marshall explained:
The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense. To contend that the word "allotted," in reference to the land guarantied to the Indians in certain treaties, indicates a favour conferred, rather than a right acknowledged, would, it would seem to me, do injustice to the understanding of the parties. How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction.
Id at 582. More recently, the U.S. Supreme Court explained, “the standard principles of statutory
construction do not have their usual force in cases involving Indian law…[and] statutes are to be
construed liberally in favor of the Indians, with ambiguous provisions interpreted to their
benefit[.]” Montana v Blackfeet Tribe, 471 US 759, 766; 105 SCt 2399 (1985).
Cohen’s Handbook of Federal Indian Law describes the Indian law canons of construction
as including four specific canons: 1) courts should interpret Indian treaties as the Indians would
have understood them at the time the treaties were negotiated; 2) courts should construe statutes
and treaties liberally in favor of the Indians; 3) ambiguities in statutes and treaties should be
resolved in favor of the Indians; and, 4) statutes should be interpreted in a manner that preserves
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tribal property rights and sovereign authority unless a contrary intent is clearly expressed in the
statute. Cohen’s Handbook of Federal Indian Law §2.02 n 6 [2005 Ed].5
The Indian law canons of construction are firmly rooted in American jurisprudence and
have been applied to Indian statutes and treaties for nearly two centuries. Federal courts routinely
apply these canons to resolve cases involving Indian statutes. See Keweenaw Bay Indian
Community v Naftaly, 452 F3d 514 (6th Cir 2006) (applying Indian law canons of construction to
preempt application of Michigan General Property Tax Act); Grand Traverse Band of Ottawa and
Chippewa Indians v United States Attorney, 369 F3d 960 (6th Cir 2004) (applying the Indian law
canons of construction to resolve ambiguity in Indian Gaming Regulatory Act); and United States
v Michigan, 471 F Supp 192 (WD Mich 1979) (applying the Indian law canons of construction to
affirm tribal treaty right to hunt and fish in Michigan). These canons have been applied to the
Indian Child Welfare Act. See Native Village of Venetie v State of Alaska, 944 F2d 548 (9th Cir
1991). In Venetie, the Ninth Circuit held, “we conclude that Public Law 280 and the Indian Child
Welfare Act are, at best, ambiguous as to whether states have exclusive or concurrent jurisdiction
over child custody determinations where the tribe has not petitioned for exclusive or referral
jurisdiction. Of course, ambiguities are to be resolved to the benefit of Indians.” Id at 811.
C. State courts have applied the Indian law canons of construction, including in cases
involving the Indian Child Welfare Act.
While the Indian law canons of construction originated in federal jurisprudence, many state
courts have applied the canons in state court litigation. For example, the Idaho Supreme Court has
5 Felix Cohen’s Handbook of Federal Indian Law was first published in 1941, and has been described as the leading treatise on federal Indian law. See, eg, Cabazon Band of Mission Indians
v Smith, 34 F Supp 2d 1195, n 7 (CD Cal 1998). Cohen’s Handbook has been cited by federal and state courts in numerous Indian law decisions, See, eg, Michigan v Bay Mills Indian Community,
572 US ___; 134 S Ct 2024, 2038 (2014).
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held, “[w]hen addressing issues of state jurisdiction in Indian Country, we are guided by the canon
of construction that state and federal legislation passed for the benefit of Indians is to be construed
in the Indians' favor. State v McCormack, 793 P2d 682, 684; 117 Idaho 1009 (Id 1990) (emphasis
added). Similarly, the New York’s appellate courts have adopted “the 'eminently sound and vital
canon' of liberal construction of statutory ambiguities in favor of expansion of Indian rights.”
Oneida Indian Nation of New York v Burr, 522 NYS2d 742, 745; 132 AD2d 402 (NY App Div
1987) (citing Bryan v Itasca Cty Minn, 426 US 373, 392; 96 SCt 2102 (1995)). Washington’s
Court of Appeals has also followed suit, noting that “[t]reaties, agreements, and statutes must be
liberally construed in favor of the tribe, and all ambiguities are to be resolved in its favor.” State v
Jim, 156 Wash App 39, 41; 230 P3d 1080 (2010) (citing State v Eriksen, 166 Wash2d 953, 959;
216 P3d 382 (2009)).
A number of state courts have similarly adopted and applied the Indian law canons of
construction to cases under the Indian Child Welfare Act and state statutes intended to implement
the Indian Child Welfare Act. For example, the Utah Court of Appeals has explained that ICWA
should be construed “liberally and in favor of the Indians….” State ex rel CD, 200 P3d 194; 2008
UT App 477 (2008).
The Minnesota Court of Appeals took a similar approach, with respect to a state law statute
intended to implement the Indian Child Welfare Act – the Minnesota Indian Family Preservation
Act. See In re Welfare of the Child of RS, 793 NW2d 752 (Minn App 2011). That case addressed
whether a state court is authorized to transfer jurisdiction over a preadoptive placement proceeding
to tribal court where it involves an Indian child who is not domiciled on a reservation. Id. The
Court determined that ICWA and its state-law counterpart were ambiguous regarding this
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authority, and applied the Indian law canons of construction to resolve ambiguities in the statutes
in favor of the Indians. The Court explained:
We are persuaded by the above authority, and are persuaded that the policy behind the ICWA, including Congress's intent to achieve uniformity among the states, compels the conclusion that the ICWA's “active efforts” standard requires more than the “reasonable efforts” standard in non-ICWA cases. Initially, this interpretation is consistent with the principle that statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit. This interpretation is also in accord with the overall purpose and scheme of ICWA and [MIFPA], which responded to the large-scale removal of Indian children from Indian families and tribes and their placement in non-Indian families and communities by establishing statutory schemes that favor tribal decision-making in child-custody determinations regarding Indian children. Finally, this interpretation comports with the long-standing understanding that ICWA and MIFPA establish "concurrent, but presumptively tribal jurisdiction" over child custody proceedings involving Indian children who are not domiciliaries or residents of the tribal reservation. We therefore conclude that section 1911(b) and section 260.771, subdivision 3, leaves a gap with regard to the transfer of preadoptive placement proceedings. That gap, in turn, is to be filled by other state sources of law which could authorize the transfer of preadoptive placement proceedings to Indian tribes with concurrent jurisdiction.
RS, 793 NW2d at 759–60 (internal citations omitted). The Minnesota Supreme Court ultimately
reversed the Minnesota Court of Appeals in that case, but on the grounds that the statutory
language was not ambiguous. See In re RS, 805 NW2d 44, 50 (Minn 2011). It did not reject the
application of the Indian law canons of construction.
This Court has applied the Indian law canons of construction, insofar as the canons help to
interpret Indian treaties. See People v Jondreau, 384 Mich 539; 185 NW2d 375 (1971); and People
v LeBlanc, 399 Mich 31; 248 NW2d 199 (1976). Jondreau involved the criminal prosecution of
a tribal member for violating state fishing laws. The tribal member defendant asserted the right to
fish under a treaty between his tribe and the United States. This Court relied upon Justice
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McLean’s opinion Worcester, stating, “'The language used in treaties with the Indians should never
be construed to their prejudice. * * * How the words of the treaty were understood by this
unlettered people, rather than their critical meaning, should form the rule of construction.”
Jondreau, 384 Mich at 544 (quoting Worcester v Georgia, 31 US 515 (1832)). LeBlanc involved
a similar question; and, again, this Court applied the Indian law canons of construction to interpret
the treaty at issue: “Given this inequitable bargaining situation, fairness demands that any
ambiguity be resolved in favor of the Indians.” LeBlanc, 399 Mich at 41. The Court explained
that “the United States Supreme Court has directed that ambiguities found in Indian treaties are to
be resolved in favor of the Indians.” Id.
While not squarely addressing the Indian law canons of construction, the Michigan Court
of Appeals has applied a similar principle of statutory construction to the Indian Child Welfare
Act. See, Empson-Laviolette v Crago, 280 Mich App 620, 629; 760 NW2d 793 (2008) (“We
liberally construe remedial statutes in favor of the persons intended to be benefited. The ICWA is
a remedial statute designed to protect Indian children and the stability and security of Indian tribes
and families. Accordingly, we are to construe the ICWA in favor of Empson, as she is the intended
beneficiary of the ICWA.”) (internal citations omitted).
D. As applied to this case, MIFPA’s language is ambiguous; and, this Court should rely
upon the Indian law canons of construction to interpret MIFPA’s ambiguous
provisions.
It is beyond dispute that MIFPA allows a parent to withdraw his or her consent to adoption
prior to the entry of a final order of adoption. See MCL 712B.13(3) (“A parent who executes a
consent under this section may withdraw his or her consent at any time before entry of a final order
of adoption by filing a written demand requesting the return of the Indian child.”). The question
of whether this provision applies to the facts in this case is less clear.
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Both of the parties in this appeal have argued that applicable Michigan statutes are
unambiguous and clearly support their respective positions. See Appellant’s Br at 3 (“The plain
language of MIFPA is unambiguous.”); and Appellee’s Br at 6 (“The unambiguous language of
MIFPA read as a whole indicates that subsection 3 relied upon is not even applicable to Appellant’s
release of parental rights in this Child Protective Proceeding.”). Simply declaring statutory
language to be clear and unambiguous does not make it so; statutory language will be deemed
ambiguous if it is reasonably susceptible to more than one meaning. See, eg, Mayor of Cadillac v
Blackburn, 306 Mich App 512, 516; 857 NW2d 529 (Mich App 2014) (“A statutory provision is
ambiguous only if it conflicts irreconcilably with another provision or it is equally susceptible to
more than one meaning.”).
While MIFPA expressly allows a parent to withdraw consent to adoption at any time prior
to the entry of a final order of adoption, it does not expressly provide for the withdrawal of consent
(or “release”) under the circumstances in this case. See MCL 712B.13. The Appellees assert that
the lack of express language in MIFPA authorizing withdrawal under these circumstances means
that the statute unambiguously prohibits withdrawal – relying on Michigan’s Adoption Code for
support. See Appellee’s Br at 10. The law is not as clear as the Appellees would assert. The
parties’ arguments indicate that MIFPA is susceptible to more than one meaning, making it
ambiguous.
The Court of Appeals’ opinion itself establishes that MIFPA is ambiguous, as applied to
the complex facts in this case:
Because MIFPA does not specifically provide whether a parent who executed a release under MCL 710.28 and MCL 710.29 during a child protective proceeding under MCL 712A.2(b) can withdraw a release, we consult ICWA and the Adoption Code, which relate to the same subject matter and share a common purpose.
In re JJW 320 Mich App 88, 902 NW 2d 901, 918 (2017) (citing In re Project Cost & Special
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Assessment Roll for Chappel Dam, 282 Mich App 142, 148; 762 NW2d 192 (2009). The Court of
Appeals would not have looked to other statutes for guidance if MIFPA’s own language was clear
and unambiguous. See People v. McIntire, 461 Mich 147, 152–53; 599 NW2d 102 (1999) (“When
a Legislature has unambiguously conveyed its intent in a statute, the statute speaks for itself and
there is no need for judicial construction; the proper role of a court is simply to apply the terms of
the statute to the circumstances in a particular case.”).
MIFPA was adopted to implement the Indian Child Welfare Act, fill gaps in the federal
law applicable to Indian child welfare cases, and to preserve Indian families. See Court Resource
Guide at 3. It is undoubtedly a statute enacted for the benefit of Indians.
The Indian law canons of construction offer a well-worn path to resolve ambiguities in
these types of statutes. This Court has already adopted and applied those canons of construction
to interpret ambiguous treaty language in favor of Indians. See Jondreau, 384 Mich 539; and
LeBlanc, 399 Mich 31. Other state courts have adopted and applied those canons of construction
to resolve ambiguities in state laws, including laws applicable to Indian child welfare cases. See
State v McCormack, 793 P2d 682, 684; 117 Idaho 1009 (Id, 1990); and In re Welfare of the Child
of RS, 793 NW2d 752 (Minn App 2011).6
Rather than looking to other state laws like the Michigan Adoption Code – which was not
adopted for the benefit of Indians – to understand ambiguities in MIFPA, the Court should simply
apply the canons of construction that have been applied to special Indian statutes for two centuries.
Abandoning those canons of construction here would be a departure from established
jurisprudence.
6 The Minnesota Court of Appeals reversed on the grounds that the statute was not ambiguous. See, In re RS, 805 NW2d 44, 50 (Minn 2011).
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The Indian law canons of construction offer a useful tool for understanding MIFPA, which,
as this case sadly demonstrates, when applied to vexing facts. MIFPA’s ambiguities should be
resolved in favor of the Indian litigants. Resolving MIFPA’s ambiguities in this manner is also
consistent with the Court of Appeals’ earlier decision in Empson-Laviolette, where it explained:
“We liberally construe remedial statutes in favor of the persons intended to be benefited. The
ICWA is a remedial statute designed to protect Indian children and the stability and security of
Indian tribes and families. Accordingly, we are to construe the ICWA in favor of Empson, as she
is the intended beneficiary of the ICWA.” Empson-Laviolette v Crago, 280 Mich App at 629
(internal citations omitted). Perhaps most importantly, applying the Indian law canons of
construction to resolve ambiguities in MIFPA will support one of the Law’s overriding purposes:
the preservation of Indian families.
Section 13 of MIFPA makes it clear that an Indian parent may withdraw consent to
adoption “at any time before entry of a final order of adoption….” MCL 712B.13(3) (emphasis
added). This language is indicative of the Legislature’s intent to ensure that parents have the ability
to preserve the existence of Indian families up until the very point at which an adoption becomes
final. It only makes sense to apply that same logic and reasoning to cases like this; and, application
of the Indian law canons of construction support that reasoning.
CONCLUSION
The AILS appreciates the Court’s invitation to file this brief as amicus curiae. For the
foregoing reasons, the AILS respectfully urges the Court to apply the Indian law canons of
construction to resolve ambiguous language in the Michigan Indian Family Preservation Act in
favor of the purpose of the law.
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Dated: January 16, 2018
/s/ Tanya Gibbs Tanya Gibbs (P78619)
Rosette, LLP On behalf of AILS Amicus Curiae as Chairperson 25344 Red Arrow Highway
Mattawan, MI 49071 Telephone: (269) 283-5005 Fax: (517) 913-6443 [email protected]
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