The Colorado Supreme Court suspended its rules last week that govern how judges handle custody cases when an “Indian child” is involved.

The court’s move came after the legislature enacted extensive changes this year, partially in response to Supreme Court decisions that afforded a lower degree of protection to children and families with tribal, or potential tribal, lineage.

“It may well be that the statute is comprehensive and no additional rules are necessary,” Justice Richard L. Gabriel, who signed off on the Nov. 6 order suspending the rules, told Colorado Politics. But “there may be some gaps in the statute where some rules would be beneficial, and the rules committee will recommend to the court those rules.”

Under the federal Indian Child Welfare Act of 1978, or ICWA, child welfare cases trigger protections of tribal interests when they involve an Indian child, meaning one who is a citizen of a tribal nation or who is eligible for membership through their parent. If state judges know or have “reason to know” a child is American Indian, the law’s provisions apply — including the obligation to notify the child’s tribe.

Congress enacted ICWA after revelations that states were removing large numbers of American Indian children from their households into non-tribal families and institutions — accounting for up to 35% of tribal children. But in the face of a U.S. Supreme Court challenge that would potentially gut the provisions of ICWA, Colorado lawmakers moved in 2023 to enshrine the then-existing federal protections into state law.

Although the nation’s highest court allowed ICWA to stand, state lawmakers returned this year to craft Colorado-specific protections for tribal children and families in custody matters.

“We’ve taken a stab at writing our own Indian Child Welfare Act language,” Sen. Jessie Danielson, D-Wheat Ridge, explained at a committee hearing.

Melanie Jordan, policy director for the Office of Respondent Parents’ Counsel, which represents indigent parents in child welfare cases, told lawmakers that House Bill 1204 was aimed in part at overturning recent state Supreme Court decisions interpreting ICWA’s requirements.

For example, in 2022, the Supreme Court ruled a family member’s assertion that a child has tribal lineage does not, by itself, give trial judges “reason to know” that the child is subject to ICWA’s protections. The year prior, the court also concluded that counties have no obligation to assist children in enrolling as tribal citizens.

“The passage of this legislation is critical to correcting these and other narrow rulings,” Jordan testified.

Gabriel said that after HB 1204 took effect over the summer, an ICWA subcommittee for the court was concerned about conflicts between the existing judicial rules and the new law.

“What we decided to do, based on a recommendation from the subcommittee to the court, was to suspend the ICWA rules immediately,” he said. “The statute now governs.”

Gabriel added that the subcommittee also suggested, in the alternative, that the Supreme Court repeal the rules entirely. To date, Gabriel said he has not heard of any issues from lawyers or trial judges arising from the suspension of the rules.

“We welcome, and the ICWA subcommittee welcomes, feedback from the bar and any judges so we can address any concerns,” Gabriel said. “The subcommittee can’t know of every issue that’s going on.”

Zaven “Z” Saroyan, appellate director with the Office of Respondent Parents’ Counsel, said he did not anticipate any problems stemming from the rules suspension.

“In short, the new Colorado ICWA provides substantially increased protections over the federal ICWA, and the ORPC is very pleased to have such protections in place,” he said.

Chris Henderson, executive director of the Colorado Office of the Child’s Representative, said his office is a member of the ICWA subcommittee. Since the enactment of HB 1204, the significance of the existing rules “has been downgraded.”

“The ICWA rules were really meant to be a resource for parties and practitioners who did not have existing knowledge of ICWA — a place to start,” he said. “So, the suspension of the ICWA rules does not represent a change in substantive law.”

Justice Melissa Hart did not participate in the order suspending the rules.