Michigan Guardianship and the Indian Child Welfare Act (ICWA)

If the child in your guardianship case is a member of or eligible for membership in a federally recognized Indian tribe, ask the court which ICWA and Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq., safeguards apply. A guardianship can be a covered child-custody proceeding when the child is removed from a parent or Indian custodian and cannot be returned on demand.

If required tribal notice is missed and the parent or tribe is prejudiced, prior court decisions can be vacated.

The Tribal Inquiry Is Not Optional

Every guardianship petition in Michigan — PC 651 (full) and PC 650 (limited) — includes a question asking whether the child is or may be an Indian child. This is not a formality. The court is required to make an inquiry at the earliest point in the proceeding.

An "Indian child" under ICWA is any unmarried person under 18 who is either (a) a member of a federally recognized Indian tribe or (b) eligible for membership and has a biological parent who is a member. Tribal enrollment criteria vary — some tribes enroll based on blood quantum, others on lineage — so even if you are unsure, you must disclose any known tribal connection.

If there is reason to know an Indian child may be involved in a covered proceeding, the parent or Indian custodian and the tribe must receive formal notice; the Secretary of the Interior is notified when their identity or location cannot be determined.

Specialized SCAO Forms

When ICWA applies, Michigan courts require specialized versions of the standard guardianship forms:

• PC 650-I: Limited Guardianship petition (ICWA version)
• PC 651-Ia: Full Guardianship petition — voluntary (ICWA version)
• PC 651-Ib: Full Guardianship petition — involuntary (ICWA version)
• PC 653-I: Order Regarding Appointment of Guardian (ICWA version)

These forms include the additional findings and certifications required for a covered proceeding. Use the ICWA version when the court determines it applies.

Formal Tribal Notice

Notice to the parent or Indian custodian and the tribe must be sent by registered mail with return receipt requested — standard first-class mail or personal service is not sufficient. If their identity or location cannot be determined, notice must be sent to the Secretary of the Interior as required by law.

For a covered foster-care placement or termination proceeding, the court must wait at least 10 days after the parent or Indian custodian and the tribe (or the Secretary when required) receive notice before holding the proceeding. If the parent or Indian custodian or the tribe requests additional time to prepare, the court must grant up to 20 additional days. A tribe may intervene; transfer to tribal court is a separate jurisdiction decision, and intervention alone does not transfer the case.

This waiting period is separate from the standard notice timelines in Michigan Court Rules. You cannot shorten it by agreement.

Higher Evidentiary Standard

For an involuntary foster-care placement of an Indian child, ICWA imposes a higher standard of proof than the standard guardianship proceeding:

• The petitioner must prove the case by clear and convincing evidence — and the evidence must include testimony from a qualified expert witness who can speak to the specific cultural and social standards of the tribe.
• MIFPA adds Michigan-specific requirements for active efforts to prevent the breakup of the Indian family, which go beyond the "reasonable efforts" standard used in other cases.

Placement Preferences

For a covered foster-care placement, ICWA establishes a preference order for the placement of an Indian child:

1. A member of the child's extended family
2. A foster home approved by the child's tribe
3. An Indian foster home approved by an authorized non-Indian agency
4. A facility approved by the tribe or operated by an Indian organization

If you are an extended family member under the child's tribe's law or custom, you fall within the first preference. If you are not, the court must consider whether an extended-family placement is available before choosing another placement.

The tribe can establish its own placement preferences that supersede the federal defaults.

Why This Matters for Kinship Caregivers

In many kinship cases, ICWA actually strengthens the relative caregiver's position — the law's entire framework prioritizes keeping Indian children with family and within their tribal community. A grandparent, aunt, uncle, or other relative filing for guardianship aligns with ICWA's goals.

The challenge is procedural compliance. An otherwise straightforward guardianship petition can be overturned years later if ICWA notice requirements were not met. Take the extra steps, use the correct forms, and give the tribe the notice and time the law requires.

Our Michigan Guardianship and Custody Court Process Guide covers the ICWA and MIFPA requirements as part of the full guardianship filing process, including which forms to use and how to handle tribal notice.

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