The Colorado Supreme Court has agreed to tackle a case that will decide one aspect of how far counties must go to ensure a child’s federal protections under the Indian Child Welfare Act.
Under the 44-year-old law, which is intended to address the history of the U.S. government’s forceful removal of Indigenous children from their parents’ care, child welfare officials are supposed to notify any tribe that might have ties to an individual child’s custody case through that child’s tribal membership. This allows tribes to petition to move the case to tribal court, and enables a tribe to inform state courts on tribal culture.
Tribal notification is only required when an Indigenous child is involved in a child welfare case.
In the case to be heard by the state Supreme Court, a county juvenile court judge relied on information from previous court proceedings involving the mother in which two tribes that had been notified said the woman had no known tribal ties. On that basis, Juvenile Court Judge Pax Moultrie terminated the parent-child relationship. The mother appealed, saying the judge failed to notify the tribes about the custody case and late last year, a three-judge panel for Colorado’s Court of Appeals agreed with the mother. The appellate court also noted that the child welfare agency had learned that the child might have ties to yet a third tribe — a possibility it never checked into.
“Here, the department’s investigation did not ensure that enrollment criteria for the Apache or Sioux tribes had not changed,” wrote Judge Anthony J. Navarro for the appellate panel. “Moreover, the investigation revealed a third affiliation, Cherokee, that had not been previously examined.”
The Colorado Supreme Court will decide whether the juvenile court judge was correct to terminate the parent-child relationship based on her having no reason to believe the child might be Indigenous, or whether the Appeals Court was correct by ruling that the county should have notified the tribes again because the child’s status might have changed.