The Colorado Supreme Court announced that it will take up the question of whether a trial court, as part of custody proceedings, must hold a hearing pursuant to federal law about whether to enroll eligible children as members of a tribal nation.

The case arises from Logan County, where the mother of two infants indicated during a dependency and neglect hearing that the father was Chickasaw. Colorado law requires courts to verify if a child is a member or eligible member of a tribe. An inquiry with the Chickasaw Nation indicated that the children’s paternal grandfather was a citizen, and therefore the children were qualified for membership.

However, the county’s Department of Human Services did not assist in filling out the paperwork to enroll the children. One year later, a judge, determining that the children were not tribal members, deemed that the federal Indian Child Welfare Act did not apply. 

Enacted in 1978 to involve tribes in custody placements, the ICWA was a response to state welfare agencies and private adoption organizations removing a high rate of Indigenous children from their households. Twenty-five percent to 35% of Indian children lived with non-Indian families, according to one estimate.

A Colorado Court of Appeals panel determined that Logan County should have informed the juvenile court as soon as it learned about the tribe’s interest in enrolling the children, with the court then holding a hearing to determine if enrollment was in the children’s best interest.

Senior Judge Janice B. Davidson wrote that such course of action was part of the “department’s ICWA-mandated due diligence.”

The Supreme Court will consider whether the appeals court established the appropriate legal standard, as well as the propriety of reversing the trial court and whether a trial court may enroll a child in a tribe over a parent’s objection.

The case is People in the Interest of K.C. and L.C.