FILED MAY 4, 2012
S T A T E O F M I C H I G A N
SUPREME COURT

In re C. I. MORRIS, Minor. No. 142759

In re J. L. GORDON, Minor. No. 143673

BEFORE THE ENTIRE BENCH
C AVANAGH , J. These combined cases require us to examine the Indian Child Welfare Act (ICWA), 25 USC 1901 through 1963. In par ticular, we must decide several issues relating to ICWA’s notice provision, 25 US C 1912(a), which mandates that notice of certain involuntary child custody proceedings be sent to the appropriate Indian tribe or to the Secretary of the Interior “where the court knows or has reason to know that an Indian child is involved . . . .” Because the question whether notice violations occurred in the instant cases begins with de termining whether the tribal- notice requirement of 25 USC 1912(a) was triggered, we must first consider the indicia of Indian heritage that will Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra2 suffice to trigger the notice requirement. We must also consider whether a parent can waive the rights granted by ICWA to an Indian child’s tribe and determine the appropriate recordkeeping requirements necessary to document the trial court’s efforts to comply with ICWA’s notice provision. Fina lly, we must determine the proper appellate remedy for violations of ICWA’s notice provision. While it is impossible to articulate a pr ecise rule that will encompass every possible factual situation, in li ght of the interests protected by ICWA, the po tentially high costs of erroneously concluding that noti ce need not be sent, and the relatively low burden of erring in favor of re quiring notice, we think the standard for triggering the notice requirement of 25 USC 19 12(a) must be a cautionary on e. Therefore, we hold first that sufficiently reliable inform ation of virtually any criteri a on which tribal membership might be based suffices to trigger the notice re quirement. We hold also that a parent of
an Indian child cannot waive the separate and independent ICWA rights of an Indian
child’s tribe and that the tria l court must maintain a documentary record including, at minimum, (1) the original or a copy of each actual notice personally served or sent via registered mail pursuant to 25 USC 1912(a) and (2) th e original or a legible copy of the return receipt or other proof of se rvice showing deliv ery of the notice. 1 Finally, we hold that the proper remedy for an ICWA-notice violation is to conditionally reverse the trial
court and remand for resolution of the ICWA-notice issue.

1 As noted in part IV(C), a complete re cord should also in clude any additional correspondence between the Department of Human Services, the trial court, and the Indian tribe or other person or entity entitled to notice.3 In both the instant cases ther e existed sufficient indici a of Indian heritage to trigger the notice requirement of 25 USC 1 912(a), yet neither trial court determined whether tribal notice had been properly made. Thus, in neither case did the trial courts
determine whether—in addition to state law— the substantive and pr ocedural protections of ICWA applied to the child custody proceedings. Therefore, in In re Morris we reverse the judgment of the Court of Appeals with regard to the use of the c onditional-affirmance remedy, c onditionally reverse the trial court’s termination of parental rights, and re mand to the trial court for resolution of the ICWA-notice issue. In In re Gordon we reverse the judgment of the Court of Appeals, conditionally reverse the trial court’s termina tion of parental rights, and remand to the
trial court for resolution of the ICWA-notice issue.
I. FACTS AND PROCEDURAL HISTORY In both cases, parental rights were termin ated pursuant to Mi chigan law, even though the trial courts never conclusively determined whether ICWA applied to the proceedings. 2

2 Assuming ICWA does not appl y to these child custody proceedings, we conclude that neither Court of Appeals panel in the instant cases clearly erred in holding that parental rights were properly terminated pu rsuant to Michigan law. See In re Morris , unpublished opinion per curiam of the Court of Appeal s, issued May 19, 2 011 (Docket Nos. 299470 and 299471) (readopting the court’s Februa ry 17, 2011 op inion with regard to termination under state law); In re Gordon , unpublished opinion per curiam of the Court of Appeals, issued August 11, 2011 (Docket No. 301592).4 A. In re MORRIS C. I. Morris is the daughter of N. Brum ley and D. Morris. The Department of Human Services (DHS) became involved in December 2008 when the newborn child tested positive for cocaine. Brumley admitted using cocaine and enga ging in prostitution while pregnant. D. Morris admitted that he knew about Brumley’s cocaine use and prostitution. The DHS filed a temporary-cust ody petition for jurisdic tion over the infant and to remove her from her mother’s custody. At the December 11, 2008 preliminary hear ing, both parents indicated that they had Indian heritage. The father stated that his great-grandmother wa s Indian and that he
believed she was a member of the Cherokee trib e. The mother stated that her heritage also included Cherokee Indian . Without further addressing the child’s Indian heritage,
the trial court ordered the child placed into foster care. The order entered after the preliminary hearing included a checked box fo r the following statem ent: “The child is a member of or eligible for membership in an American Indian tribe or band named
CHEROKEE (complete and mail form JC48).” Immediately following that statement, the order provided, “The findings requir ed by MCR 3.980 have been made on the
record.” 3 It appears, however, that tribal notice was never made. At the April 7, 2009 adjudication trial, the referee found that one or more of the allegations in the petition were substantia ted and that it was proper to exercise

3 At the time of these proceed ings, MCR 3.980 was still in effect and required the trial court to ensure that notice of the proceedings was given to the child’s tribe and the child’s parents. As of May 1, 201 0, MCR 3.980 has been repl aced by MCR 3.905 and MCR 3.967.5 jurisdiction over the ch ild. The referee further ordered both parents to comply with parent–agency agreements (PAA), with the go al being reunification. Approximately one year later, the trial court ordered the DHS to file a supplemental petition seeking termination of both parents’ parental rights because they had failed to substantially comply with their PAAs and had failed to benef it from the services that were offered. On July 21, 2010, the referee found that the child could not safely be returned to the parents
within the foreseeable future and the court terminated both parents’ parental rights, finding that the cited statutory grounds we re demonstrated by clear and convincing evidence and that termination was in the child’s best interests. 4 Brumley and D. Morris appeal ed, but did not raise the I ndian-heritage issue in the Court of Appeals. Instead, th e DHS raised sua sponte the in sufficiency of notice to the Indian tribe under ICWA. In its response to the parents’ consolidated appeals, the Attorney General admitted that the record did not disclose whether ICWA notification had been completed. Rather than reverse the trial court, the Attorney General urged the Court of Appeals to conditionally affirm the termination but remand so that proper notice could be provided to any interest ed tribe. The Court of Appe als affirmed the termination, however, without addressing the ICWA-notice issue or petitioner’s ad mission of error.
See In re Morris , unpublished opinion per curiam of the Court of Appeals, issued February 17, 2011 (Docket Nos. 299470 and 299471).

4 The statutory grounds for terminati on relied on by the trial court were MCL 712A.19b(3)(c)( i ), (g), (j), and (m).6 D. Morris alone applied for leave to appeal in this Court. In lieu of granting leave to appeal, we vacated that po rtion of the Court of Appeals judgment resolving the father’s appeal and remanded to the Cour t of Appeals for resolution of the ICWA-notice issue. In doing so, we expressly re tained jurisdiction. In re Morris , 489 Mich 877 (2011). On remand, the Court of Appeals readopted its Fe bruary 17, 2011 opinion with regard to termination of D. Morris’s parental rights , conditionally affirmed the termination of parental rights with regard to both parents, and remanded to the trial court for resolution
of the ICWA-notice issue. In re Morris , unpublished opinion per curiam of the Court of Appeals, issued May 19, 2 011 (Docket Nos. 299470 and 299471). We granted D. Morris’s application for leave to appeal, “limited to the issue whether the Court of Appeals ‘conditional affirmance’ remedy is an appropriate method of resolving an ICWA violation.” In re Morris , 489 Mich 957 (2011). We now reve rse, but only with regard to the use of the conditional-affirmance remedy.
B. In re GORDON C. Hinkle gave birth to J. L. Gordon in May 2007. 5 When JL was just a few months old, Shiawassee County Child Protec tive Services (CPS) received a referral for neglect and improper supervision. Hinkle and JL were living in a condemned house with no electricity or running water, and Hinkle admitted being in an abusive relationship with a gang member and her own in volvement with the gang. Hinkle also admitted that she fed the baby adult table food, that she did not regularly bath e him or change his diapers, and that she sometimes shook him and threw him to other persons. Shiawassee County

5 The father’s iden tity remains unknown.7 CPS referred Hinkle for services, but she fa iled to participate and eventually went missing with JL. In November 2007, while Hink le was in jail on an unrelat ed conviction, she placed JL in a guardianship with Hi nkle’s maternal aunt, a Sagina w Chippewa tribal member.
But when Hinkle was released from jail, the guardianship was terminated and JL returned to Hinkle’s care. In May 2008, Hinkle re surfaced in Oakland County, and CPS again became involved after receiving a referral alle ging that JL had been treated for seconddegree burns to his hands after falling into a fireplace and that Hinkle had failed to bring
the child back to th e hospital’s burn unit for follow-up care. When CP S found Hinkle,
the caseworker ordered Hinkle to take JL to the hospital for trea tment of his burned hands. Hinkle apparen tly did not do so. The child was taken into pr otective custody. Caseworker Nina Bailey filed a petition on behalf of the DHS, seeking temporary jurisdicti on over JL, which was granted on May 22, 2008. On July 21, 2008, Hinkle pl eaded no contest to the allegations in the petition, and the court ordered Hinkle to comp ly with a PAA. Following a dispositional hearing in September 2 008, JL was placed back with Hi nkle’s maternal aunt, the Saginaw Chippewa tribal member who had previ ously served as JL’s guardian. By April 2010, Hinkle had made little progress toward reunification. Her compliance with the PAA was sporadic and incomplete, she had been arrested on an unrelated criminal charge, she was requestin g shorter and less frequent visitations with JL, and she continued to mainta in inappropriate living conditio ns. At an April 8, 2010 permanency planning hearing, the court re commended that the DHS file a supplemental petition seeking terminati on of Hinkle’s parental rights. After a three-day bifurcated8 hearing concluding on November 1, 2010, th e court terminated Hinkle’s parental rights, finding that each of the statut ory grounds alleged in the petiti on had been prov en by clear and convincing evidence and that termin ation was in JL’s best interests. 6
The facts relevant to the ICWA-notice issue developed over the course of numerous hearings. At the May 21, 2008 hearing during which the DHS sought emergency custody of JL, Bailey indicated that neither Hinkle nor JL was a member of an Indian tribe and that they were not eligib le for tribal membership. However, at the preliminary hearing on May 22, 2008, Hinkle stated that her family was part of the Saginaw Chippewa Indian Tribe in Mt. Pleasa nt. Hinkle seemed to indicate that she was not a member of the tribe, but the referee di d not conclusively determine Hinkle’s tribal
status. Without further clarif ication from Hinkle, the refere e stated: “That’s okay, don’t worry about it. So I will orde r DHS to do an investigation regarding that and notify the tribe for us and see if they want to respond to this case.” Th e order issued after a June 3, 2008 hearing indicates “ICWA ha s been notified.” At a hear ing held on July 21, 2008, Bailey was asked about the status of the tribal notification. Bailey responded that she had sent a certified letter to the Saginaw Chippe wa Indian Tribe and wa s notified by return receipt that the letter had been received, but she had not heard back from the tribe regarding membership or elig ibility for me mbership. At a September 2008 dispositional review hearing, Hinkle clarified that her biological mother was not a member of the tribe, but her mother’s siblings were. Hinkle’s mother was present in the courtroom and confirmed that there was Indian

6 The statutory grounds for term ination were MCL 712A.19b(3)(c)( i ), (g), and (j).9 heritage on her side of the family and that she was “waiting on that ,” which apparently meant that she was waiting to hear from the tribe about her own eligibility for membership. The assistant prosecutor reiterate d that notice had been sent to the Saginaw Chippewa Indian Tribe, but no response had been received . The court directed the prosecutor to place a copy of the notice in the court file, and she agreed to do so, but the record does not include a copy of the notice. At a hearing held on January 5, 2009, DHS caseworker Lisa Smith stated that an ICWA representative had request ed more family history information from Hinkle, that the requested information had been provided, and that the DHS was awaiting a response.
The court directed Smith to not ify it when a response was re ceived and place a copy in the court file. Smith agreed to do so, but again, the record in cludes no such ICWA
documentation. At an April 21, 2009 hear ing, Smith told the court that Hinkle’s mother had
received direct notice from the tribe that the fa mily was not eligible for tribal benefits. Hinkle’s mother was present and stated th at she had been notified that she and her
descendents were not entitled to tribal benef its or money. Hinkle then attempted to clarify for her mother, stating, “My son and I don’t have enough heritage to get—to be part of the tribe in other words.” The co urt stated that it was looking for “a letter” directly from the tribe. JL’s fo ster mother stated that she is a tribal member and had tried
to obtain information regarding JL’s status from the trib e, but the tribe had refused to release the information to anyo ne but the DHS or the court. Smith reiterated that she had10 “sent papers to ICWA.” 7 The court notified Smith that she needed to “contact them to see why they haven’t re sponded because we need the response di rectly from ICWA. And they’re not going to se nd it to anybody else, they’re going to send it to the [DHS] because you’re the one that’s making the request.” Smith agreed to contact the tribe. On April 6, 2009, the court entered an order following a hearing, which noted, “Nothing received from ICWA—w orker contacted ICWA again.” This is the last reference to ICWA that appears in the record. The record includes no copies of the actual notices purportedly sent to either the Saginaw Chippewa Indian Tribe or the Secretary of the Interior. There are no postal return re ceipts indicating whether notice was received and, if so, by whom. Lastly , the record includes no documentation of any tribal response or other subsequent communications documen ting the court’s and the DHS’s efforts to ensure compliance with ICWA. Hinkle appealed the Nove mber 2010 termination decision, and the Court of Appeals affirmed. In re Gordon , unpublished opinion per cu riam of the Court of Appeals, issued August 11, 2011 (Docket No . 301592). The Court of Appeals noted that Hinkle had objected to neither the manner no r the insufficiency of tribal notice pursuant to ICWA and concluded that, even in the ab sence of documentation, the record showed

7 A review of the transcripts reveals that the repeated references to notifying “ICWA” are apparently references to notifica tions sent directly to the Secr etary of the Interior. We are unclear why notice would be sent to the Secret ary of the Interior in this case. Section 1912(a) only requires th at notice be sent to the secretary if “the identity or location of the parent or Indian custodian and the tribe cannot be determined . . . .” Hinkle specifically stated that some of her relatives were memb ers of the Saginaw Chi ppewa Indian Tribe. Thus, the appropriate trib e had been determined.11 that the DHS had co mplied with ICWA. Id . at 4. Further, the Court of Appeals concluded that by stating that she and her son were not elig ible for tribal membership, Hinkle had relieved the trial court from maki ng further tribal-notification efforts. Id. Hinkle applied for leave to appeal in this Court, and pursuant to MCR 7.302(H)(1), we directed the clerk to schedule oral argument on whether to grant the application or take
other action. In re Gordon , 490 Mich 917 (2011). Having heard oral arguments, we now

reverse. II. STANDARD OF REVIEW Issues involving the applic ation and interpretation of ICWA are questions of law that are reviewed de novo

. In re JL , 483 Mich 300, 318; 770 NW2d 853 (2009). A court’s factual findings underlying the applica tion of legal issues are reviewed for clear

error. People v LoCicero (After Remand) , 453 Mich 496, 500; 5 56 NW2d 498 (1996).
III. THE INDIAN CHILD WELFARE ACT In 1978, Congress enacted ICWA in respon se to growing concerns over “abusive child welfare practices that re sulted in the separation of la rge numbers of Indian children
from their families and tribes through adoption or foster care placement, usually in nonIndian homes.” Mississippi Band of Choctaw Indians v Holyfield , 490 US 30, 32; 109 S Ct 1597; 104 L Ed 2d 29 (1989). Senate hearings conducted be tween 1974 and 1978
considered the harm of these child welfare practices, not onl y to the Indian children and their parents, but also to the Indian tribes. Id. at 32-34. In its statement of findings, Congress expressed the importance of protecti ng and preserving Indian families, Indian tribes, and tribal culture, stating the following:12 (3) that there is no resource that is more vital to the continued existence and integrity of Indian tr ibes than their children . . . ; (4) that an alarmingly high percen tage of Indian families are broken up by the removal, often unwarrant ed, of their children from them by nontribal public and private agen cies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and (5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings th rough administrative and judicial bodies, have often failed to recognize th e essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and familie s. [25 USC 1901.] In response to these finding s, Congress declared that th e policy of our nation is to protect the best interests of Indi an children and to promote the stability and security of Indian tribes and fam ilies by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such ch ildren in foster or ad optive homes which will reflect the unique values of Indian culture . . . . [25 USC 1902.] Thus, reflected in ICWA is a profound recogn ition of the separate a nd distinct rights of
Indian tribes to their childre n, the most critical resource n ecessary to preserve not only tribal culture, but the tribes themselves. To address the probl ems identified in the hearings, ICWA establishes various substan tive and procedural pr otections intended to govern child custody proceedi ngs involving Indian children. 8 Two provisions define the ex clusive or presumptive jurisd iction of the tribal courts over Indian children. First, if an Indian child “resides or is domiciled within the

8 Four types of proceedings ar e included in the definition of “child custody proceeding” found in 25 USC 1903(1)(i) throu gh (iv): foster care placements , terminations of parental rights, preadoptive placements, and adoptiv e placements. See also MCR 3.002(1)(a) through (d). As discussed within this opi nion, “Indian child” is defined by 25 USC 1903(4).13 reservation of such tribe” or is a “ward of a tribal court,” the child’s tribe has exclusive jurisdiction “over any child custody proceed ing.” 25 USC 1911(a). Second, in state court foster care or termination of parental rights proceedings involving Indian children
who are not wards of the tribal court and ar e not residents of or domiciled within a reservation, the parent, the Indian custodian of the child, or the In dian child’s tribe may petition for the proceedings to be transferred to the tribal cour t. 25 USC 1911(b). In the absence of good cause to the co ntrary or declination by the tribal court, the state court “shall transfer” the proceedings to the tribal court. Id. Further, if the child is an Indian child and jurisdiction is not transferred to the tr ibal court, the child’s tribe retains the right to intervene in any state court foster care placement or terminati on of parental rights proceeding. 25 USC 1911(c)

. Regardless of whether the tr ibe intervenes, if the child involved in the child custody proceeding is an Indian child, stat e courts must still conform to the heightened pr otections afforded by ICWA. 9 Therefore, before a state court can determine whether ICWA applies to the proceedings, the court must first make
the critical determinati on whether the child is an “Indian child.”

9 The various protections afforded by ICWA in proceedings involving Indian children include the appointment of counsel, 25 USC 1912(b); the duty to show that “active efforts have been made to provide remedial services and rehabilita tive programs designed to prevent the breakup of the Indian family” in foster care placement or termination of parental rights proceedings, 25 USC 1912(d); a “determination, su pported by clear and convincing evidence, including testimony of qualifie d expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child” in foster care placement proceedings, 25 USC 1912(e); a “determination, supporte d by evidence beyond a reasonable doubt, including testimony of qualified expert witnesse s, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child” in term ination of parental rights pr oceedings, 25 USC 1912(f); and adoptive, preadoptive, and foster care placement preferences, 25 USC 1915.14 As defined by ICWA, an “Indian child” is “any unmarried pe rson who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 USC 1903(4) (emphasis added). 10 Aside from the age and marital-status components, both subparts (a) and (b) require a determination of tribal membership or eligibility for tribal membership, and it is well established that only the Indian tribe can determine its membership. In re Shawboose , 175 Mich App 637, 639; 438 NW2d 272 (1989). Therefore, when there are sufficient indications that the child may be an Indian child, the ultimate determination requires that the tribe receive notice of the child custody proceedings, so that the tribe may advise the court of the ch ild’s membership status. And thus, ICWA includes 25 USC 1912(a), the notice provision. Before turning to the specifi cs of the notice provision, however, we must briefly discuss ICWA’s enforcement provision, 25 USC 1914, which provides a powerful collateral remedy for violations of ICWA’s key provisions. That section provides: Any Indian child who is the subjec t of any action for foster care placement or termination of parental rights under St ate law, any parent or Indian custodian from whose cust ody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a show ing that such action violated any provision of [25 USC 1911, 1912, or 1913]. [25 USC 1914 (emphasis added).]

10 “Indian tribe” is defined as “any Indian trib e, band, nation, or ot her organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] b ecause of their status as Indians . . . .” 25 USC 1903(8).15 Pursuant to this provision—and with no ap parent time limitation on when the collateral action may be brought—the Indian child, a pare nt, an Indian custodian of the child, or the child’s tribe may petition a court to invalidate foster care placements and terminations of parental rights if the state court violated any provision included in 25 USC 1911, 1912, or 1913. The import of this po werful remedy is that such an action to invalidate the proceedings could be brought even after the children had es tablished permanency with a new family. 11 Accordingly, the availability of th e 25 USC 1914 remedy for violations of ICWA’s key provisions must inform our decisi on, compelling us to decide this case in a way that urges our trial courts to ensure compliance with ICWA, including compliance with the notice provision. 12

11 For example, in Holyfield , the Indian tribe of twin chil dren over which it had exclusive jurisdiction successfully used 25 USC 1914 to challenge a voluntary adoption two months after the entry of the final decree of adoption. Holyfield , 490 US at 38, 53. By the time the United States Supreme Court deci ded the case—holding that the chancery court had no jurisdiction to enter the adopt ion decree—the children had been with their adoptive parents for more than three years. Id. at 53.

12 We point out why 25 USC 1914 is not an available remedy in either of the instant cases. That provision gives standing to th e Indian child, the parents and the Indian custodians of the Indian child, and the Indian child’s tribe. See also 25 USC 1903(9) (defining “parent”). Thus, while any one or more of the four parties may bring an action pursuant to 25 USC 1914, any such action is prefaced on the condition that the child meets the definition of an “Indian child” found in 25 USC 1903(4). Because only the Indian tribe can determine me mbership or eligib ility for membership, an action brought under 25 USC 1914 must necessarily include a tribal determination of membership or eligibility for membership , even though the tribe itself need notintervene in the statecourt proceedings. See In re Kreft , 148 Mich App 682, 684, 687-689; 384 NW2d 843 (1986) (holding that the resp ondent-mother in a termina tion action had standing to challenge the termination under 25 USC 1914, ev en though the Indian child’s tribe, after intervening in the probate court, did not join the respondent in the appeal). In the instant cases, there have been no determ inations that the children ar e Indian children, and thus, 25 USC 1914 is not available.16 IV. THE NOTICE PROVISION OF ICWA, 25 USC 1912(a) The notice provision of ICWA provides: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail w ith return receipt requested, of the pending proceedings and of their right of interven tion. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice sh all be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requ isite notice to the parent or Indian custodian and the tr ibe. No foster care placement or termination of parental ri ghts proceeding shal l be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided , That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding. [25 USC 1912(a).] Several requirements can easily be extracted from the plain text of the statute. First, 25 USC 1912(a) applies only to involuntary foster care placements and involuntary termination of parental rights proc eedings occurring in state courts. 13 Second, if the “knows or has reason to know” notice condition is triggered, the party seeking foster care placement or termination of pare ntal rights has a duty to send notice of the proceedings to (1) the parent or Indian custodian and (2) the Indian child’s tribe. Third, the notice must be sent by registered mail with return receip t requested. Fourth, the contents of the notice must advise, at minimum, of both the pendi ng proceedings and the right of the party receiving the notice to intervene. Fifth, if the party seeking termin ation cannot ascertain the identity of either (1) the parent or Indi an custodian of the ch ild or (2) the Indian

13 Voluntary foster care placements, voluntary termination of parental rights proceedings, and voluntary adoptive placements are governed by 25 USC 1913.17 child’s tribe, then notice must be sent to the “Secretary,” meaning the Secretary of the
Interior. 14 Sixth, once the party seeking foster ca re placement or termination of parental rights receives the return receipt showing that delivery of notice ha s been made, a clock begins to run from the date of delivery shown on the return r eceipt. The tribe, parent, or Indian custodian has 10 days beginning on the date of receipt to respond to the notice, but may request up to an additional 20 days. Seventh, the trial court may hold no foster care placement or termination of pare ntal rights proceedings until after the stated time periods have elapsed. 15 Thus, if the notice condition is trigge red, the requisite notice must be sent and—other than necessary temporary orders pending resolution of the ICWA matter—the trial court may not hold any proceedings regarding either foster care placement or termination of parental rights until after passa ge of the requisite wa iting periods: 10 days, or up to an additional 20 days if requested. The application of the requirements of 25 USC 1912(a), ho wever, is conditioned on whether the notice requirement is even triggered by indicia of Indian heritage sufficient to give the court actual knowledge or a “reason to know” th at the child at issue
is an Indian child.

14 “Secretary” is defined as “the Secretary of the Interior.” 25 USC 1903(11). Pursuant to 25 CFR 23.11(b) and (c)(2), when notice to the Secretary of the Interior is required under 25 USC 1912(a) fo r proceedings in Michigan, it is actually sent to the Minneapolis Area Director, Bureau of Indian Affairs.

15 This does not mean that if the notic e condition is triggere d the children must automatically be return ed to the home. As discussed in part V, until the ICWA-notice issue is resolved, the trial c ourt need not change, and may or der, temporary placements of the children because the mere triggering of 25 US C 1912(a) notice does not divest the court of jurisdiction.18 A. THE MEANING OF “REASON TO KNOW” As we have noted, the requirements of 25 USC 1912(a) apply only when “the
court knows or has reason to know that an Indian child is invo lved . . . .” There is no difficulty in a situation where the court knows an Indian child is involved. In that case, the court would be privy to sufficient informa tion to determine that the child satisfies the
definition of “Indian child” set forth in 25 USC 1903(4) (i.e., th e child is unmarried, under age 18, and either [a] a member of an Indian tribe or [b] el igible for membership and the biological child of a member of an Indi an tribe). The diffic ulty arises when the
court “has reason to know that an Indian child is involved . . . .” Specifically, how much information suggesting th e child has or may have Indian heritage suffices to give the court “reason to know” that an Indian child is involved?
We think the “reason to know” standard for purposes of the notice requirement in 25 USC 1912(a) should se t a rather low bar. First, we find instructive the Bureau of Indian Affairs (BIA) guidelines, whic h suggest a permissive standard:
Circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an I ndian include but are not limited to the following: (i) Any party to the case, Indian tr ibe Indian organi zation or public or private agency inform s the court that the child is an Indian child. (ii) Any public or state-licensed ag ency involved in child protection services or family support has discovered information which suggests that the child is an Indian child

. (iii) The child who is the subject of the proceeding gives the court reason to believe he or she is an Indian child. (iv) The residence or the domicile of the child, his or her biological parents, or the Indian custodian is know n by the court to be or is shown to be a predominantly Indian community.19 (v) An officer of the court involve d in the proceeding has knowledge that the child may be an Indian child . [Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings, B.1(c), 44 Fed Reg 67584, 67586 (November 26, 1979) (BIA Guidelines) (emphasis added).] By using the terms “reason to believe,” “sugge sts,” and “may be an Indian child,” this nonexhaustive list adopts a perm issive standard we find co nsistent with the purposes animating ICWA. Further, our State Court Ad ministrative Office recently adopted the BIA standards, with some slight va riations, in its ICWA resource guide. 16 Second, we also find instructive BH v People ex rel XH , 138 P3d 299, 303 (Colo, 2006), in which the Colorado Supreme Cour t examined this sa me issue and noted: Precisely what constitutes “reason to know” or “reason to believe” in any particular set of circumstances will necessarily evade meaningful description. As in other contexts , reasonable grounds to believe must depend upon the totality of the circum stances and include consideration of not only the nature and specificity of available informa tion but also the credibility of the source of that information and th e basis of the source’s knowledge. In light of the purpose of [ICWA], however, to permit tribal involvement in child-cust ody determinations whenev er tribal members are involved, the threshold re quirement for notice was clearly not intended to be high.
The court examined the BIA Guidelines and cases from ot her jurisdictions before concluding that “[b]ecause me mbership is peculiarly within the province of each Indian tribe, sufficiently reliable information of virtually any criteria upon which membership might be based must be considered adequate to tri gger the notice provisions of the Act.”

16 See ICWA Special Committee, Indian Child Welfare Act of 1978: A Court Resource Guide (State Court Administrative Office, 2011), p 22 (hereinafter “SCAO ICWA Resource Guide”), available at <http://courts.michigan.gov/ scao/resources/publications/ manuals/cws/ICWACtResourceGuide.pd f> (accessed April 27, 2012).20 Id. at 304 (emphasis added); see also In re Antoinette S , 104 Cal App 4t h 1401, 1407; 129 Cal Rptr 2d 15 (2002) (“[T]he ‘minimal show ing’ required to trigger notice under the ICWA is merely evidence ‘ suggest [ ing ]’ the minor ‘may’ be an Indian child . . . .”), quoting Dwayne P v Superior Court , 103 Cal App 4th 247, 258; 126 Cal Rptr 2d 639 (2002) (second altera tion in original). Third, we think the burden on the trial court and the DHS of complying with the notice requirement is minimal when compar ed to the potential costs of erroneously failing to send notice. At most, complyin g with 25 USC 1912(a) will extend the proceedings by some 30 days after the date the tribe or the Secretary of the Interior
receives notice. If those entitled to notice do not re spond within 10 da ys, the trial court may conduct the foster care placement or termin ation of parental rights proceedings. If the tribe replies to the notice, indicating that the child is not a member of the tribe and is not entitled to membership th en, again, proceedings may resume. Finally, if those entitled to notice request an addi tional 20 days, then the court may have to wait a total of 30 days beyond the date the notice was rece ived, as shown by the return receipt. An additional 30 days seems a co mparatively low burden on th e trial court and the DHS, especially when child custody cases genera lly take well over a year and the Indian heritage question will normally be raised at le ast by the time of the preliminary hearing. MCR 3.965(B)(2). 17 However, if the trial court e rrs by concluding that no notice is

17 MCR 3.965(B)(2) requires that the court inquire about Indian heritage at the preliminary hearing. We recognize that MCR 3.965(B)(2) is not entirely consistent with this opinion because the court rule incorporates the definiti on of “Indian child” into the trial court’s initial determination of whet her notice must be sent to the tribe:21 required and proceeds to place the child into fo ster care or terminate parental rights, the purposes of ICWA are frustrated and the Indian child, the parent or Indian custodian, or the Indian child’s tribe may pe tition to have the proceeding s invalidated pursuant to 25 USC 1914. Thus, the cost of making 25 USC 1912(a) notice is far less than the potential cost of incorrectly deciding that no notice is required. For the foregoing reasons, we adopt the permissive standard articulated by the Colorado Supreme Court and hold that suffici ently reliable information of virtually any criteria on which membership might be ba sed is adequate to trigger the notice requirement of 25 USC 1912(a). 18 Once sufficient indicia of Indian heritage are

The court must inquire if the child or either parent is a member of an Indian tribe. If the child is a membe r, or if a parent is a member and the child is eligible for memb ership in the tribe, the court must determine the identity of the child ’s tribe, notify the tribe . . . . [MCR 3.965(B)(2).] Only after the appropriate trib e responds can it be determined whether a parent, the child, or both are tribal members or are eligib le for membership. And only with that information can the trial court determine whether the child me ets the definition of “Indian child.” Instead, the court rule should likely reflect a standard of “knows or has reason to know” or “knows or has reas on to believe.” This Cour t is considering opening an administrative file for the purpo se of amending MCR 3.965(B)(2).

18 A nonexhaustive list of indicia sufficient to tr igger tribal notice includes situations in which (1) the trial court has in formation suggesting that the ch ild, a parent of the child, or members of a parent’s family are tribal me mbers, (2) the trial court has information indicating that the child has Indian heritage, ev en though no particular Indian tribe can be identified, (3) the child’s birth certificate or other official re cord indicates that the child or a parent of the child is of Indian descen t, (4) the child, the ch ild’s parents, or the child’s Indian custodian resides or is domic iled in a predominantly Indian community and (5) the child or the child’s fa mily has received services or benefits from a tribe or the federal government that are available to Indi ans. The state of California has codified a similarly permissive standard. See Cal Welf & Inst Code 224.3(b). While we recognize that California law is not bi nding on Michigan courts, we find California’s codified22 presented to give the court a reason to believ e the child is or may be an Indian child, resolution of the child’s and pare nt’s tribal status requires no tice to the trib e or, when the appropriate tribe cannot be dete rmined, to the Secretary of th e Interior. If there must be error in determining whether tribal notice is required, let it be on the side of caution. 19
See In re MCP , 153 Vt 275, 289; 571 A2d 627 (1989) (“To maintain stability in placements of children in juvenile proceedings, it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child.”). In the instant cases, we agr ee with the trial courts’ initial determinations that there
existed sufficient indicia of Indian her itage to require tribal notice. In Morris , both parents informed the court at the December 11, 2 008 preliminary hear ing that they had Cherokee Indian heritage. An d while the record does not re flect whether any attempt to provide notice was made at that time, the order entered after the preliminary hearing indicates that “[t]he child is a member of or eligible for member ship in an American
Indian tribe or band named CHEROKEE . . . .” Likewise in Gordon , Hinkle informed

standard an instructive templa te for this opinion’s nonexhaustiv e list of sufficient indicia of Indian heritage. See also BI A Guideline B.1(c), quoted earlier.

19 There exist numerous possible scenarios in which a child may not appear to meet the ICWA definition of “Indian chil d” early in the proceeding, ye t satisfy those conditions at some point during the pendency of the proceed ings. For example, a tribe could determine that both a parent and the child are eligible for memb ership. In that case, if the parent accepts tribal membership, the ch ild would meet ICWA’s defin ition of “Indian child.” It is likewise possible for a parent to be a trib al member since birth or early childhood, yet not be aware of her or his membership status until the tribe is contacted. See, e.g., In re Termination of Parental Rights to Arianna RG , 2003 WI 11, ¶ 17; 259 Wis 2d 563, 575; 657 NW2d 363 (2003) (noting that while many tr ibes require enrollment or registration, some automatically include descendents of members).23 the court at the May 22, 2008 pr eliminary hearing that her fam ily was part of the Saginaw Chippewa Indian Tribe, and the referee in dicated that the DHS would be required to notify the Saginaw Chippewa tribe to conclusively resolve the issue. Thus, in both cases, we agree that the tribal-notice requirement of 25 USC 1912(a) was triggered because sufficient indicia of Indian heritage were pres ented to give the cour ts reason to believe that the children might be Indian children.
B. PARENTAL WAIVER OF TH E TRIBAL RIGHT TO NOTICE
In Gordon , we asked the parties to address whether a parent can waive a minor
child’s status as an Indian child or waive complia nce with ICWA. Th is issue is easily resolved in the negative: a pare nt cannot waive either a child’s status as an Indian child or any of the tribe’s separate and distinct ri ghts, as guaranteed by ICWA—including the right to notice under 25 USC 19 12(a). The act makes clear that Indian tribes have “an interest in the child which is distinct from but on a parity with the interest of the parents.” In re Adoption of Halloway , 732 P2d 962, 969 (Uta h, 1986), quoted in Holyfield , 490 US
at 52. In Holyfield , the United States Supreme Court stated: The numerous prerogativ es accorded the tribes through the ICWA’s substantive provisions . . . must, ac cordingly, be seen as a means of protecting not only the interests of in dividual Indian children and families, but also of the trib es themselves. [ Holyfield , 490 US at 49.] In recognition of the tribe’s prot ected interests in its children, the Court held that “[t]ribal jurisdiction under § 1911(a) was not meant to be defeated by the ac tions of individual members of the tribe,” id. at 49, and allowing a parent to avoid the tribe’s right to exclusive jurisdiction over reservation domiciliaries woul d “nullify the purpose the
ICWA was intended to accomplish,” id. at 52. While the Holyfield case is framed within24 the tribal right to exclusive jurisdiction, we c onclude that the same principles hold true in the context of the tribal right to notice. Pr oviding notice is a critica l step to determining whether the separate and distinct tribal in terests protected by ICWA are implicated. Tribes must be afforded the “opportunity to participate in determining whether the child
is an Indian and to be heard on the issue of ICWA applicability.” BH , 138 P3d at 303 (citations omitted). Therefore, we hold that a parent cannot wa ive a child’s status as an Indian child or any right of the tribe that is guaranteed by ICWA. See id. at 304 (“Because the protection of a separate tribal interest is at the core of the ICWA, . . . otherwise sufficiently reliable information cannot be ov ercome by the statements, actions, or waiver of a parent . . . .”), citing Holyfield , 490 US at 49, 52; In re Marinna J , 90 Cal App 4th 731, 733; 109 Cal Rptr 2d 267 (2001) (“Because the notice requirement is intended, in part, to protect the interests of Indian tribes, it cannot be waived by the parents’ failure to raise it.”). The Court of Appeals in Gordon clearly erred by holding that Hinkle’s clarification had relieved the trial court from making further tribal-notification efforts. 20

20 We do not think that the purported communi cation from the tribe to Hinkle’s mother about her eligibility for tribal benefits suffices for any purpose relevant to ICWA. First, the purported letter to Hinkle’s mother had nothing to do w ith ICWA or th e child custody proceedings. Second, it is not clear that in eligibility for tribal benefits equates with ineligibility for tribal me mbership. Lastly, the trial court was correct to conclude that the tribe’s response to the notice of the child custody proceedings needed to be sent from the tribe or the Secretary of the Interior dir ectly to the DHS or the trial court. A communication from a tribe to a relative of a respondent about eligibility for tribal benefits is insufficient to support any conclu sion that ICWA does no t apply to the child custody proceedings.25 C. 25 USC 1912(a) RECORDKEEPING REQUIREMENTS
In Gordon , 490 Mich 917, we asked the parties to address “whether the Department of Human Services and the family court are under a duty to make a complete record of their complian ce with the notice requirements of the ICWA . . . .” 21 While the DHS personnel and the prosecutor made numer ous assertions at various hearings that
notice had been sent , the record in Gordon is devoid of any documentation of the DHS’s efforts to notify either the Saginaw Chippe wa Indian Tribe or the Secretary of the Interior. There are no copies of the actual notice purportedly sent. Nor does the record include any original or copy of a registered mail return receipt, which is necessary to show not only that no tice was received, but also to de termine when the 25 USC 1912(a) waiting period begins. 22 Lastly, while caseworker Smith stated to the trial court on January 5, 2009, that she had received and responded to a request for mo re family-history

21 This issue was not raised in Morris because, by all accounts, there were no efforts to comply with 25 USC 1912(a) after the Dece mber 11, 2008 preliminary hearing, during which the trial court found th at 25 USC 1912(a) was trigge red but apparently did not otherwise comply with its requirements. However, our ruling regarding recordkeeping requirements applies equally to Morris on remand.

22 We are unable to dete rmine from the record in Gordon whether the notice referred to was sent via registered or certified mail . However, the text of 25 USC 1912(a) specifically requires registered mail . See also MCR 3.920(C)(1) (requiring notice to parents and tribes “by personal service or by registered mail with return receipt requested”). We note that there are differences between certified and registered mail, the latter of which is more secure. Additionall y, the BIA recommends that only personal service—which affords greater protections—m ay substitute for re gistered mail. BIA Guidelines B.5(e), 44 Fed Re g at 67588. Because the tr ial court did not determine whether tribal notice had been made, we need not opine at this time on whether actual notice achieved via certified mail instead of re gistered mail would be subject to harmless error review. See, e.g., In re Alexis H , 132 Cal App 4th 11, 16; 33 Cal Rptr 3d 242 (2005); Nicole K v Superior Court , 146 Cal App 4th 7 79, 784; 53 Cal Rptr 3d 251 (2007).26 information, no documentation of that correspondence appears in the record. This is so even though the court re peatedly instructed both the pros ecutor and Smith to ensure that copies of the ICWA-related documents were place d in the court file. It is thus impossible
to discern from the record in Gordon whether notice was actua lly sent, to whom it was sent, and whether the notices were rece ived by the appropriate recipients. While ICWA is silent regarding the r ecordkeeping requirem ents of 25 USC 1912(a) notice compliance, we fi nd it essential that certain do cuments be included in the record. First, our State Court Administ rative Office recently adopted the BIA recommendation that “[t]he original or a copy of each notice sent pursuant to this section shall be filed with the court together with any return receipts or other proof of service.” BIA Guidelines B.5(d) , 44 Fed Reg at 67588. 23 Second, without bein g able to review the return receipt, the trial court cannot determ ine whether the proper party actually received the notice sent by registered mail. Third, th e trial court cannot determine the date on which the 25 USC 1912(a) waitin g period begins to run wi thout knowing the date on which the tribe or the Secretar y of the Interior received the notice, as shown by the registered-mail return receipt. Fourth, with no co py of the actual notic e in the record, the
trial court cannot determine if the contents of the notice provided sufficient, accurate
information to enable th e tribal authorities to determine tr ibal status of the child and the child’s parents. Finally, appellate courts cannot fulfill their appellate function without
documentation in the record suffi cient to allow review of a tr ial court’s efforts to comply with 25 USC 1912(a).

23 See SCAO ICWA Resource Guide, p 25 (“The original or a copy of each notice along with return receipts or other proofs of service must be filed with the court.”).27 Indeed, Gordon illustrates the necessity for a docum entary record of the attempts to comply with the notice re quirements of 25 USC 1912(a). The lack of documentation
in the record in Gordon prevents us from determining if the contents of the notice were sufficient to apprise the intended recipient of the pending child custody proceeding. We
likewise are unable to determine to whom the notices were sent, even though the transcript includes references to both th e Saginaw Chippewa Indian Tribe and to “ICWA,” the latter of which presumably means the Secretary of the Interior. 24 Further, there is an assertion in the January 5, 2009 hearing transcript that a notice recipient had requested additional family-back ground information, but we are unable to review either the purported request or any responses made to the request because the record includes neither. Lastly, we cannot dete rmine when or if the notices were actually received by the Saginaw Chippewa Indian Tribe, which would allow us to determine when and if the 25 USC 1912(a) waiting period began to run. Therefore, we hold that trial courts have a duty to ensu re that the record includes, at minimum, (1) the original or a copy of each ac tual notice personally served or sent via registered mail pursuant to 25 USC 1912(a), and (2) the original or a legible copy of the return receipt or other proof of service show ing delivery of the notice. In addition, it would be helpful—especially for appellate purposes—for the reco rd to include any additional correspondence between the petitioner, the court, and the Indian tribe or other person or entity entitled to no tice under 25 USC 1912(a).

24 See n 7 of this opinion.28 Having determined that the notice requi rement of 25 USC 1912(a) was triggered
in both cases before us and that the trial courts did not fully comply with that statute, we are left to consider the proper remedy for ICWA-notice violations.
V. THE PROPER REMEDY : CONDITIONAL REVERSAL Despite the best efforts of child-protection authorities and our trial courts, there will inevitably be the occasional, unintentional tribal-no tice error. In neither of the instant cases did the trial courts conclusive ly resolve whether the children were Indian children, and therefore whether the act’s substantive and procedural protections applied to the child custody proceed ings was not determined. Although the trial court in Morris determined that tribal notice was required, it appears that notic e was not made. And while there were apparently attempts in Gordon to comply with 25 USC 1912(a), the documentary record is insufficient to dete rmine whether the Saginaw Chippewa Indian Tribe actually received the requisite notice.
Because ICWA and our court rules are s ilent regarding the proper remedy for 25 USC 1912(a) notice violations, we must choose the best of three remedies suggested by the parties and the amici curiae. 25 The first suggestion is to automatically reverse any proceedings occurring after th e tribal-notice condition of 25 USC 1912(a) was triggered. The second proffered remedy is to conditiona lly reverse the trial court and remand for resolution of the ICWA-notice issue. The third possibility, which is substantively very

25 Recent amendments of our court rules incor porate many ICWA standards. See, e.g., MCR 3.002; MCR 3.905; MCR 3.920(C); MC R 3.921; MCR 3.961(B)(5) and (6); MCR 3.965(B)(2) and (12)(b); MCR 3.967; MCR 3. 977(A)(1). None of the relevant court rules, however, provides a reme dy for ICWA-notice violations.29 similar to the second, is to conditionally a ffirm the trial court and remand for resolution
of the ICWA-notice issue. In In re IEM , 233 Mich App 438, 449-450; 592 NW2d 751 (1999), our Court of Appeals adopted the cond itional-affirmance remedy, and it has since been applied in mo re than 20 cases. 26 We are guided in ou r assessment of these three po ssible remedies by the following considerations: (1) deference to tribal inte rests, as expressed by ICWA, (2) the best interests of the children, both Indian and non-Indian, in establishing and maintaining permanency, (3) the need to encourage compliance with IC WA, especially in light of the potential effects of the 25 US C 1914 remedy when errors occur, and (4) the conservation of judicial resources. We must first reject the automatic-revers al remedy. The primary argument offered in support of automatic reversal is that on ce the 25 USC 1912(a) notice requirement is triggered, the court has no jurisdiction to enter any foster care or termination of parental rights orders pending resolution of the tribal- notice issue. Therefore, it is argued, any proceedings occurring after the notice require ment was triggered must be automatically
reversed. The main case cited in support of this argument is In re NAH , 418 NW2d 310, 311 (SD, 1988), in which the South Dakota Supreme Court concluded that “inadequate

26 See, e.g., In re TM (After Remand) , 245 Mich App 181, 187; 628 NW2d 570 (2001); In re NEGP , 245 Mich App 126, 133-13 4; 626 NW2d 921 (2001); In re Amyx/AmyxHolmes , unpublished opinion per curiam of the Co urt of Appeals, issued July 21, 2011 (Docket No. 301648); In re Toia , unpublished opinion per curiam of the Court of Appeals, issued August 13, 2009 (Docket Nos. 289465 and 289469). As we will explain, we overrule all Michigan cases applying the conditional-affirmance remedy to ICWAnotice violations.30 notice to the tribes divests the trial court of jurisdiction to terminate parental rights to these Indian children; c onsequently, this court has no juri sdiction to address the merits of
the case.” The critical difference in NAH , however, was that the mo ther was a member of the Oglala Sioux Tribe and th e court was able to positivel y conclude that the children
were “Indian children en titled to the benefits and protections of [ICWA].” Id. Thus, because the court knew that ICWA applied to the proceedings, it was appropriate to automatically reverse the term ination of parental rights. 27 The situation in NAH is not present in either of the in stant cases, however, because it has yet to be determined whether the children in volved are Indian children, whether ICWA applies, and whether the tribal court or the state court has jurisdiction. Although the automatic-reversal remedy woul d be the most deferential to tribal interests and would be the most effective in stressing to c ourts the imperative need to comply with ICWA, we decline to adopt the ar gument that the mere triggering of notice pursuant to 25 USC 1 912(a) strips the state court of jurisdiction over the matter and requires immediate return of the children to the home from wh ich they were removed. Several ICWA provisions indicate that Congre ss did not intend for state courts to lose

27 However, the NAH opinion does not includ e enough information for us to determine whether the Oglala Sioux Tribe had exclusiv e jurisdiction over the children pursuant to 25 USC 1911(a) or merely presumptive jurisd iction pursuant to 25 USC 1911(b). When a tribe has exclusive jurisdictio n, then of course the state court has no jurisdiction to terminate parental rights. When a tribe mere ly has presumptive jurisdiction, however, we do not think that inadequate tribal notice automatically divests a state court of jurisdiction. Moreover, the merits of NAH have been questioned. See In re Kerby , 170 Or App 263, 268; 13 P3d 523 (2000) (“There is some question whet her the South Dakota Supreme Court’s jurisdictional ruling in [ NAH ] is correct.”).31 jurisdiction once the 25 USC 19 12(a) notice requirement is triggered. For example, pursuant to 25 USC 1922, a state court may conduct an emergency removal and arrange temporary foster care placement of even a child over whom the tribal court has exclusive jurisdiction when an Indi an child “who is a resident of or is domiciled on a reservation” is “temporarily located off the reservation . . . .” While ICWA does not address those children not explicitly covered by 25 USC 1922 , it would make no sense for Congress to allow for emergency removal and temporary pl acement of Indian children over whom the Indian tribe has exclusive jurisdiction pursu ant to 25 USC 1911(a), yet preclude those emergency and temporary measures for all ot hers, especially when it has yet to be determined if the child qualifies as an I ndian child and whether the tribal court has exclusive jurisdiction over, the right to intervene in, or no interest in the matter. See, e.g.,
DED v State , 704 P2d 774, 779 (Alas, 1985) (holding that the notice requirements of 25 USC 1912(a) do not apply to emergency custod y proceedings held pursuant to 25 USC 1922); In re SB , 130 Cal App 4th 1148 , 1162-1164; 30 Cal Rptr 3d 726 (2005) (recognizing the absurdity of applying vari ous ICWA provisions to temporary detention proceedings and holdi ng that Congress intended 25 US C 1922 “to apply to emergency removals and placements of all Indian children,” not just those domiciled or residing within the reservatio n), citing HR Rep No. 95-1386, 2d Sess, p 25 (1978), reprinted in 1978 US Code Cong & Admin News, pp 7530, 7548. Further, even when a petitioner has imprope rly removed an Indian child from the home or improperly retained custody, the child need not be returned to her or his parent or Indian custodian if doing so “would subj ect the child to a substantial and immediate danger or threat of such danger.” 25 USC 1920 . Finally, our conclu sion is reinforced by32 the fact that 25 USC 19 12(a) contains no reference to juri sdiction. It seems unlikely that Congress would have intended the triggering of tribal no tice under 25 USC 1912(a) to divest a court of jurisdiction, yet would ch oose not to include the word “jurisdiction” within the provision. The c onspicuous absence of any refe rence to jurisdiction in 25 USC 1912(a) becomes especially meaningful when one consider s that other ICWA provisions provide detailed treatment of ju risdiction. See 25 USC 1911(a) (exclusive tribal jurisdiction); 25 US C 1911(b) (presumptive tribal jurisdiction); 25 USC 1918 (tribal reassumption of jurisdiction); 25 USC 19 19 (authorization for states and tribes to enter into jurisdictional agreem ents). We thus conclude th at Congress was well aware of the jurisdictional issues central to ICWA, yet chose not to ma ke the mere triggering of the notice requirement in 25 USC 1912(a) a jurisdictional issue. See Antoinette S , 104 Cal App 4th at 1410-1411 (holding that violations of the 25 USC 1912(a) waiting period are not jurisdictional and reasoning that “if [t he] error were to strip a court of its jurisdiction . . . , then the juvenile court wo uld lose all authority over the dependent child in its care, requiring immediate return of th e child to parents who have demonstrated at least temporary unfitness”). Whether the tribal court has exclusive, presumptive, or no jurisdiction over the matter cannot even be determined in the absence of proper notice to
the tribal authorities. Therefore, we conclude that the mere tr iggering of the notice requirement does not strip the trial court of jurisdiction over th e children and does not mandate automatic reversal of all proceedings occurring after the notice requirement was triggered. The requirement to provide tribal no tice under 25 USC 1912(a) is the means by which a court determines its jurisdiction, but is no t itself a divestiture of jurisdiction.33 We also do not believe that automatic revers al would be in the be st interests of the children. In the majority of cases involving ICWA-notice violations that were conditionally affirmed by the Mi chigan Court of Appeals, it was eventually determined
that the children were not Indian children and thus that ICWA did not apply. An automatic-reversal rule would require new term ination proceedings in even the cases not involving Indian children, and this would disr upt or delay the permanent placement of the child. It would be counterp roductive and nonsensical to di srupt the permanent placement
of a child before it is determined whether th e child is an Indian child. Additionally, an automatic-reversal rule would not conserve judicial resources because it would require
the invalidation of all orders entered when th ere was an ICWA-notice violation, even if it
is later determined that the ch ild is not an Indian child. Finally, the automatic-reversal remedy would be inconsistent with our longstanding disfavor of automatic reversals. See In re Osborne , 459 Mich 360, 369; 589 NW2d 763 (1999). Therefore, without a showing that ICWA even applies to the foster care or termination of parental rights proceeding s, i.e., that the child is an Indian child,
we decline to ad opt a rule of automatic reversal. 28
Our choices thus narrow to either the conditional-reversal or the conditionalaffirmance remedy. Other jurisdictions have employed one or the other remedy to ICWA tribal-notice violations. See, e.g., In re Elizabeth W , 120 Cal App 4th 900, 908; 16 Cal

28 However, when an appellate court can concl ude from the record properly before it that a child is an Indian child entitled to the benefits and protectio ns of ICWA, an outright reversal may be an appropriate remedy if the trial court failed to apply ICWA’s standards.34 Rptr 3d 514 (2004) (conditional reversal); In re REKF , 698 NW2d 147, 151 (Iowa, 2005) (conditional affirmance). From a practical perspective, we realiz e there is little difference between the conditional remedies: both require a rema nd to remedy the notice violation. A conditional affirmance merely st ates that the lower court ru ling is affirmed unless ICWA applies, whereas a conditional reversal states that the ruling is reversed unless ICWA does not apply. Under either remedy, if the ch ild is determined to be an Indian child, then the foster care or termination proceedi ngs are invalidated and the proceedings begin anew under ICWA’s standards. If no Indian child is involved, however, or the tribe given proper notice does not respond within the times allotted by 25 USC 1912(a), any notice
violation is harmless.
As far as the best interests of the child ren, there is again little difference between
the conditional-affirmance and conditional-revers al remedies. Under either remedy, the children will likely stay in their current plac ements until the notice violation is resolved, and thus their permanency is no t unduly affected in the interim. Add itionally, there is no
difference between these remedies as far as conserving judicial resources. Both require a remand to remedy the notice violation. Nevertheless, in other ways, substan tial differences exist between the two remedies. First, we think the use of a conditiona l reversal is more consistent with the text of 25 USC 1912(a), which mandates that “[n]o foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary . . . .” Second, between the two remedies, conditional reversal is more deferen tial to tribal interests, as expressed by35 ICWA, and is more likely to ensure these inte rests are protected by the trial courts. The
term “conditional reversal” sends a clearer si gnal to the lower courts and the DHS that they must pay closer attenti on when ICWA is implicated. In sum, we think that the conditional-reversal remedy is more emphatic, mo re consistent with the text and purposes animating ICWA, and more likely to encourage complian ce with ICWA. Therefore, we overrule IEM and its progeny and hold th at conditional reversal is the proper remedy for viol ations of 25 USC 1912(a). 29
VI. CONCLUSION We hold that the proper remedy for ICWA-notice viol ations is to conditionally reverse the trial court and remand for resolutio n of the ICWA-notice i ssue. In addition, we hold that virtually any criteria on which tr ibal membership might be based suffices to trigger the 25 USC 1912(a) notice requirement. We hold also that a parent of an Indian child cannot waive the separate and independent rights of an Indian child’s tribe, as

29 We also clarify another aspect of IEM . The Court of Appeals quoted with approval a Vermont case for the proposition that after rema nding to the trial court for proper notice to the Indian tribe, “‘[i]f the tribe does not seek to intervene, or after intervention the trial court still concludes that the ICWA does not apply, the orig inal orders will stand.’” IEM , 233 Mich App at 450, quoting In re MCP , 153 Vt 275, 289; 571 A2d 627 (1989). This language has since been repeated in ICWA-notice cases. See, e.g., In re BJ & GH , unpublished opinion per curiam of the Court of Appeals, issued June 10, 2003 (Docket No. 242892); In re Burgett , unpublished opinion per curiam of the Court of Appeals, issued March 11, 2008 (Docke t No. 280642). The above-quoted language erroneously implies that even if the child is determined to be an Indian child, it would be proper to affirm an involuntary foster care placeme nt or termination of parental rights determination made under state law—in th e absence of ICWA’s protections—if the Indian tribe chose not to inte rvene. If the child meets th e definition of Indian child, ICWA applies, regardless of whether the Indi an tribe chooses to in tervene in the statecourt proceedings.36 guaranteed by ICWA. Lastly, we hold that the trial court must maintain a documentary record including, at minimum, (1) the original or a copy of each ac tual notice personally served or sent via registered mail pursuant to 25 USC 1912(a), and (2 ) the original or a legible copy of the return receipt or other pr oof of service showing delivery of the notice.
In In re Morris we reverse the judgment of the Co urt of Appeals with regard to the use of the conditional-affirmance remedy, conditionally reverse the trial court’s termination of parental rights, and remand to the trial court for resolution of the ICWAnotice issue. In In re Gordon we reverse the judgment of the Court of Appeals, conditionally reverse the trial court’s termina tion of parental rights, and remand to the
trial court for resolution of the ICWA-notice issu e. On remand, the trial courts shall first ensure that notice is properl y made to the appropriate en tities. If the trial courts conclusively determine that ICWA does not apply to th e involuntary child custody proceedings—because the childr en are not Indian children or because the properly noticed tribes do not respond within the allo tted time—the trial courts’ respective orders terminating parental rights are reinstated. If, however, the trial courts conclude that ICWA does apply to th e child custody proceedings, the tr ial courts’ orders terminating parental rights must be vacated and all proc eedings must begin anew in accord with the procedural and substantive re quirements of ICWA. We do not retain jurisdiction.

Michael F. Cavanagh Robert P. Young, Jr. Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. ZahraAPPENDIX:
AN OVERVIEW OF THE 25 USC 1912(a) NOTICE PROCESS To aid our lower courts in properly applying the notice requirement of 25 USC 1912(a), we offer the following cursory overview. While th is overview begins at the preliminary hearing, we recognize that the De partment of Human Services, pursuant to its own policies and procedures, will have previo usly begun the process of gathering the information necessary to determine the app licability of the Indian Child Welfare Act (ICWA). As noted in the opini on, for more comprehensive guidance, see ICWA Special Committee, Indian Child Welfare Act of 1978: A Court Resource Guide (State Court Administrative Office, 2011) (SCAO ICWA Resource Guide). 1. At the preliminary hear ing, the court must inquire ab out Indian heritage. While MCR 3.965(B)(2) frames the inquiry in terms of actual tribal membership, sufficiently reliable information of virtually any criteri a on which membership might be based is adequate to trigger the notice requirement of 25 USC 1912(a). Se e part IV(A) of the opinion. As we have noted, not all tribes ke ep written rolls and it is possible for a parent
to be unaware that she or he is a member of a tribe. See n 19 of the opinion and accompanying text. 2. If sufficient indicia of Indian heritage are presented to give the court a reason to believe the child is or may be an Indian child , determination of the tribal status of the child, the parents, or both requires no tice pursuant to 25 USC 1912(a).38 3. The trial court must identify the child’s tribe 1 and ensure that the tribe receives notice of the proceedings. If the child’s tribe cannot be de termined, notice must be sent
to the Bureau of Indian Affa irs (BIA). See n 14 of the opinion and accompanying text. While MCR 3.965(B)(2) states that “the cour t must . . . notify the tribe,” the court may discharge its duty by directing the petitioner to compose and send notice containing as much information as is reasonably available to provide the child’s tribe, or the BIA when applicable, with the in formation needed to ma ke the determination of tribal membership or eligibility for tribal memb ership. For a suggested list of the notice contents, see Bureau of Indian Affairs, Gu idelines for State Courts; Indi an Child Custody Proceedings, B.5(b), 44 Fed Reg 67584, 67588 (November 26, 1979). 4. Notice must be made by personal serv ice or sent by registered mail with return receipt requested. See n 22 of the opinion. 5. Other than temporary placements pendi ng the tribal or BI A notification, the trial court may not conduct any foster care placement or terminati on of parental rights proceedings until (1) the expirati on of the time periods stated in 25 USC 1912(a), or (2) the child’s tribe or the BIA resp onds with information sufficien t to allow the trial court to
conclude that the child is not an Indian child within the me aning of ICWA. The possibility that the child is an Indian child does not divest the trial court of jurisdiction to order temporary foster care pending tribal notice. See part V of the opinion.

1 For information on determinin g the child’s tribe, see Bu reau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedi ngs, B.2, 44 Fed Reg 67584, 67586-67587 (November 26, 1979); SC AO ICWA Resource Guide, pp 22-24.39 6. When the tribe does not have exclus ive jurisdiction under 25 USC 1911(a), if
the child’s tribe or the BIA re sponds with information suffi cient for the trial court to
conclude that the child is an Indian child within the meaning of ICWA and the child’s
tribe declines the transfer of jurisdiction or the trial court determines that there exists good cause to keep th e matter in state court pursuant to 25 USC 1911(b), the substantive and procedural protections afforded by ICWA still apply to the proceedings. The application of ICWA to the state-court pro ceedings does not depend on whether the tribe
chooses to intervene. See n 29 of the opinion. If the child is an “Indian child,” ICWA applies. See n 9 of the opinion and accompanying text. 7. The trial court has a duty to ensure the record includes, at minimum, (1) the original or a copy of each ac tual notice personally served or sent via registered mail pursuant to 25 USC 1912(a ) and (2) the original or a legibl e copy of the re turn receipt or other proof of service showi ng delivery of the notice. In addition, the record should include any additional correspond ence between the petitioner, the court, and the Indian tribe or other person or entity entitle d to notice under 25 USC 1912(a).