Colorado’s second-highest court has reinforced its split interpretation of when judges in child welfare proceedings have reason to know a child falls under the legal definition of “Indian,” triggering longstanding federal protections for tribal nations.

Last week, a three-judge panel for the Court of Appeals issued a decision on the reason-to-know standard under the Indian Child Welfare Act. The ruling comes weeks before the state Supreme Court is scheduled to hear oral arguments on the issue. As of now, the justices are faced with four appellate decisions in recent months – with an even divide between interpretations.

The most recent opinion in the case of People in the Interest of M.M. took a more expansive view of juvenile judges having reason to know the child in a custody matter is an American Indian child. Under ICWA, American Indian children are either members of tribal nations or eligible for membership as the offspring of a member. Once a judge knows or has reason to know of an American Indian child, there is an obligation to inform the relevant tribes so they may assert their rights in the proceedings.

“Applying these definitions, information that a parent has tribal lineage both implies and is a sign that a child is an American Indian child. Thus, a report of lineage would meet the definition of reason to know,” wrote Judge John Daniel Dailey in the June 2 opinion.

The M.M. decision out of Arapahoe County joins another Court of Appeals panel’s ruling from December in People in the Interest of E.M. In that Denver case, the appellate court found the juvenile judge did have reason to know the child involved was American Indian based on suggestions of tribal lineage from the mother and the mother’s parents.

In March, the Supreme Court agreed to review the E.M. decision. Days later, another Court of Appeals panel issued a competing interpretation of the reason-to-know standard.

A mother in an Adams County welfare proceeding said she had tribal heritage, but never filled out the court’s ICWA paperwork. The county believed there was not reason to know the child was American Indian, and a juvenile judge agreed. The ensuing appellate panel in People in the Interest of A-J.A.B. affirmed that determination, finding such assertions required the county to investigate the matter, but tribal notification was not required.

The final appellate decision in April, again out of Denver, sided with the A-J.A.B. interpretation that suspected tribal lineage merely triggers more investigation, not necessarily tribal notification.

“In lieu of taking these steps to ascertain the basis for the parent’s claim of heritage and following up on that information, the department may of course give notice of the proceeding to the federally recognized tribes,” added Judge David H. Yun in the opinion of People in the Interest of Jay.J.L.

Two appellate panels apiece have now taken different sides on the obligation of lower courts to ensure tribal notification when there is a claim of tribal heritage. To complicate matters, Pax Moultrie, the judge in both of the Denver cases, received varied instructions on how to proceed, as her cases fell into each side of the split.

The Office of Respondent Parents’ Counsel, which represents indigent parents in child welfare cases, has weighed in to the Supreme Court in favor of the broader reason-to-know interpretation in E.M. and, now, M.M.

“The ORPC believes that this is a somewhat binary decision for the court,” said Zaven “Z” Saroyan, the office’s director of family defense. “Either the assertion of Indian ancestry/heritage is sufficient for a court to have reason to know a child is an Indian child – and thus triggers the ICWA tribal notice requirements – or it is not.”

Congress enacted the Indian Child Welfare Act in 1978 amid the pervasive removal of American Indian children from their homes and into non-American Indian families or institutions. Notification of tribal nations in welfare proceedings involving American Indian children enables tribes to intervene and even request a transfer to tribal court.

Due to state governments’ forcible separation of American Indian children from their families, membership in tribes may be interrupted, wrote Saroyan in the ORPC’s brief to the Supreme Court. In addition, he argued, because tribes determine membership for themselves, state courts should not take assertions of tribal lineage lightly.

“However, without notice of the proceeding, the tribe will not know a membership determination is needed,” the brief explained. 

In last week’s M.M. decision, a juvenile judge learned from the father that his grandmother was reportedly a “registered tribal member in Delaware.” The father thought his grandmother was “100%,” but he was unsure of his own membership or that of his children. The judge determined ICWA did not apply because she had no reason to know of any tribal heritage after the county’s investigation.

Federal ICWA regulations establish that judges have reason to know when any participant in the custody proceeding says they have “discovered information indicating that the child is an Indian child.” The appellate panel acknowledged there are no federally-recognized tribes within the state of Delaware and that Colorado law only directs judges who receive some information of tribal lineage to order further investigation. But the panel ultimately agreed notice is required when there is a reliable suggestion of tribal membership.

“For these reasons, we conclude that father’s report of a lineal Delaware tribal affiliation was sufficient to give the court reason to know that the children are American Indian children and, thus, to trigger ICWA’s notice requirements,” Dailey wrote.

He added the panel was unpersuaded by the A-J.A.B. and Jay.J.L. decisions based on the wording of the ICWA regulations.

The Supreme Court will hear the appeal of the E.M. case on June 21. Upholding the E.M. decision would also validate the reasoning in the M.M. ruling.