One Court of Justice

In Bates Associates, L.L.C. v. 132 Associates, L.L.C., No. 288826, a commercial contract dispute arose between plaintiff Bates and defendant 123, which is owned by the Sault Ste. Marie Tribe of Chippewa Indians.  Bates sued in Wayne County Circuit Court and the Tribe asserted sovereign immunity.  The parties’ contract waived the Tribe’s sovereign immunity for actions brought to enforce the agreement, but the Tribe claimed that its agent lacked authority to negotiate and execute the contract because a tribal resolution was required to waive immunity.  The Michigan Court of Appeals disagreed, because the agent had negotiated a previous agreement with Bates that similarly waived sovereign immunity, and because Bates had no knowledge that a tribal resolution was necessary.  In addition, the Tribe failed to challenge the agreement’s validity until after Bates filed suit.  In these circumstances, the agent had sufficient authority to waive immunity.

On Friday, September 18, 2009, the Court denied leave to appeal in two cases, denied a prisoner’s motion to waive fees, denied reconsideration of In re McBride Minors (Corrigan, J. and Kelly, C.J. dissenting) and ordered supplemental briefing on the issue of whether the government tort liability act applies to claims against a former tribal chairperson in Sault St. Marie Tribe of Chippewa Indians v. Bouschor (application for leave pending), and entered remand orders in the following cases:

• People v. Elanani:  The Court vacated the decision of the Court of Appeals because the Court concluded that the trial court erred in scoring the defendant’s offense and erroneously departed from the guideline range.   The Court remanded the case to the circuit court for re-sentencing.   Justice Weaver dissented and would have denied leave to appeal.
• People v. Wiggins:  The Court, in lieu of granting leave to appeal, remanded the case to the Court of Appeals for consideration, as on leave granted, whether the circuit court the defendant’s offense was properly scored.  Justice Weaver again dissented, and Justice Markman concurred to dispute Justice Weaver.

On July 14, 2009, the Michigan Supreme Court issued its opinion in In re Lee, No. 137653.  The Court considered two issues involving the interpretation of the Indian Child Welfare Act, which governs the removal of Indian children from their homes.  First, the Court held that the term “active efforts” in 25 U.S.C. § 1912(d) requires the state to show that it has taken affirmative and active, rather than passive, efforts to prevent the break-up of an Indian family.  The Court declined to hold that the efforts must be close in time to the petition to terminate parental rights, or that the test is met by a demonstration that further efforts would be futile.  Second, the Court held that the beyond-a-reasonable-doubt standard of 25 U.S.C. § 1912(f) requires contemporaneous evidence that leaving the child in the custody of the Indian parent will likely harm the child.  Past parental neglect alone is not enough.  However, the Court emphasized that past conduct is relevant to the likelihood of present harm.  Ultimately, the Court affirmed the Court of Appeals’ and the trial court’s decision to terminate parental rights.  Justice Weaver concurred.  Chief Justice Kelly and Justice Cavanagh dissented. Read more »