The Colorado Court of Appeals has ruled for the first time that the four-decade-old federal law protecting tribal rights in child custody proceedings applies to court decisions establishing who is a child’s legal father.

A three-judge panel on Thursday determined that the Indian Child Welfare Act of 1978 kicks in whenever an Indigenous child is placed in the custody of a nonbiological parent. The panel reversed the decision of a Washington County judge who had not inquired whether a child at the center of court proceedings was American Indian before granting paternity to the stepfather. Because the biological father made reasonable efforts to establish his paternity, the appeals panel ordered a redo of the decision.

“Colorado appellate courts have strongly upheld the requirements of the ICWA in order to ensure that any case involving a Native American child allows tribes an opportunity to be involved and ensures departments provide active efforts to reunify children with their families,” said Melanie Jordan, case strategy director for the Office of Respondent Parents’ Counsel, which represented the biological father in the case.

ICWA is intended to protect the relationship between tribal nations and children who are or are eligible to be members. Congress enacted the law amid widespread removal of American Indian children to non-Indigenous households and institutions. The law explicitly pointed the finger at states for failing to honor tribal culture and child-rearing practices.

Even with ICWA, however, American Indian children are represented in the foster care system at disproportionately high rates nationwide – 2.5 times greater than their share of the general population, according to 2013 data.

To trigger ICWA, juvenile courts must determine if the child at the center of the custody proceedings is an “Indian child” under the law. If so, the government must send notice of the proceedings to the relevant tribal nations giving them the opportunity to participate and educate the court. The government also must make active efforts to keep the family united.

In the case at hand, the Washington County Department of Human Services began child welfare proceedings in 2017 for a boy identified as O.S-H. His mother was reportedly dead, his stepfather was on a treatment plan and his biological father was in prison. As part of the case, the court had approved genetic testing to conclude the imprisoned father was in fact O.S-H.’s biological parent.

But the boy’s stepfather asserted that he should be deemed the child’s father, and a judge agreed with him. The biological father appealed on the grounds that the court failed to determine if O.S-H. was an Indian child. The county argued that the paternity determination did not qualify as a custody proceeding, and therefore ICWA did not apply.

Notably, ICWA does not define as a parent an unwed father whose paternity is not established or acknowledged. In a high-profile 2013 decision, the U.S. Supreme Court weighed in on whether a child’s biological, Cherokee father could retain custody over his daughter rather than the white man and woman who had adopted the child at birth with the mother’s consent. By a 5-4 decision, the Court decided the biological father could not use ICWA to block the adoption when he had never had custody of the child.

The Cherokee Nation, in arguing that the child should remain united with her father despite his unwed status, highlighted the benefits of belonging to an Indian tribe, including access to tribal assets and resources as well as voting rights.

“Nation citizenship also carries with it intangible interests in Cherokee culture and tradition, and the opportunity to participate in and shape the Cherokee polity,” the tribe wrote.

The appellate panel in Colorado observed that ICWA does not say how an unwed father can establish or acknowledge paternity, but in O.S-H.’s case, the father proactively got involved – to the point of genetic testing – and that was good enough.

“[S]tatutes enacted for the benefit of Indians, as well as regulations, guidelines, and state statutes promulgated for their implementation, must be liberally construed in favor of Indian interests,” wrote Judge Robert D. Hawthorne in the Oct. 28 opinion.

“This is a thoughtful decision that addresses a pretty difficult area of law in child welfare,” said Kathryn E. Fort, director of the Indian Law Clinic at Michigan State University, who monitors appellate cases implicating ICWA across the country. On average, there are at least 200 appellate cases every year that center around ICWA, and the most common issues are a lack of notice to tribes and a failure to inquire about the child’s Indian status in the first place.

Earlier this year, the Colorado Supreme Court determined that counties have no legal obligation to help enroll eligible children into tribal nations, but nonetheless deemed it a best practice to do so. Jordan, with the Office of Respondent Parents’ Counsel, said that the state Supreme Court will soon consider what active efforts are required of a county to keep Indian families together in child welfare cases – known formally as dependency and neglect.

Under the appellate panel’s decision, the juvenile court must now evaluate the paternity again, this time proceeding in accordance with ICWA if it finds out from the biological father that O.S-H. is a tribal member or eligible for membership. The court must also consider other relevant details in determining the child’s legal father, including the name listed on the birth certificate.