Larimer County did not comply with the federal law that protects the rights of Indian children when it failed to notify the relevant tribes in a custody proceeding, the Colorado Court of Appeals ruled on Thursday.

The Larimer County Department of Human Services learned in June 2019 of a mother using cocaine whose six-month-old child appeared unhealthy. In January of this year, a jury found the infant was in a risky environment and the court declared the child neglected.

Prior to the decision, the child’s paternal grandmother indicated possible Apache heritage. A lawyer for the child’s father indicated the man did not know of any tribal lineage. Citing this uncertainty, the Larimer County juvenile court judge decided the Indian Child Welfare Act did not apply.

The 1978 federal law established standards for handling custody proceedings of an American Indian minor. One of the law’s main principles is the involvement of the child’s tribal nation. When a court knows or has reason to believe that a child in question is a tribal member, there must be notice to the tribe and an opportunity to participate. 

Independently of the court, the county’s human services department investigated the infant’s heritage and discovered the child’s paternal great uncle had Apache membership. However, court documents did not show whether the county notified any of the federally-recognized Apache tribes about the case.

“Based on the totality of the circumstances, we conclude that the juvenile court and the Department had reason to know that the child was potentially an Indian child,” wrote Judge Jerry N. Jones for the three-member appeals panel. “Therefore, the Department should have sent notices to each of the federally recognized Apache tribes” and the Bureau of Indian Affairs.

With the passage of ICWA, Congress found that terminations of parental rights had the effect of separating Indian children from their tribal communities. Around the time of the law’s enactment, up to 35% of Indian children were living in foster care or were adopted or institutionalized. A lack of culturally-competent standards for assessing Indian families, poverty in Indian country and economic incentives for adoption all led to the high rates of removal. 

Despite the fact that states routinely violated the rights of the Indian parents and children, the Bureau of Indian Affairs found as recently as 2016 that states have implemented ICWA inconsistently, with the upshot that “an Indian child and her parents in one State can receive different rights and protections under Federal law than an Indian child and her parents in another State.”

The National Indian Child Welfare Association reports that even with ICWA, native children still experience removal from their homes at two to three times the rate of white children.

The bureau did not immediately answer an inquiry about the number of custody hearings pursuant to ICWA that occur in Colorado annually. Kathryn E. Fort, director of the Indian Law Clinic at Michigan State University’s College of Law, said there were at least 16 appeals of ICWA-related custody proceedings in Colorado between 2017 and 2019. She added that the difficult nature of aggregating cases meant that not all proceedings are included in her tally.

The appellate panel returned the adoption case to the Larimer County juvenile court with instructions to the human services department to notify all relevant parties.

This story has been updated with additional comment.