Congress enacted the Indian Child Welfare Act more than 40 years ago to combat the forcible removal of Indigenous children from their homes for placement into nontribal families and institutions. In doing so, the law recognized tribal nations have an interest in state courts’ custody proceedings involving their members.

Now, the Colorado Supreme Court is grappling with how to interpret a crucial component of the act: When do judges have reason to know that a child appearing before them is an “Indian child” under the law?

The answer matters, because the act obligates the state to notify relevant tribal nations about child-welfare cases implicating their members, with the opportunity for the tribes to intervene. That notice, however, only happens when a judge has reason to know.

“Notice from the courts is almost always the only way tribes know that their most vital resource is in danger of being removed from an Indian family,” Zaven Saroyan, an attorney for the Office of Respondent Parents’ Counsel, told the justices last week.

The Supreme Court in March agreed to hear the appeal of People in the Interest of E.M., a child-welfare case originating in Denver. In the ensuing months, the state’s second-highest court has issued three

more decisions evaluating whether a family’s assertion of tribal lineage is enough to give judges reason to know they are dealing with an Indigenous child. Twice, the Court of Appeals has said no. In the other two instances, including the E.M. case, the appellate court answered yes.

Oral arguments before the

Supreme Court on June 21 highlighted competing concerns. On the one hand, tribal nations have the power to determine who is a member and who is not, suggesting it would be proper to provide notice whenever tribal lineage is a factor. On the other hand, invoking ICWA unnecessarily could delay custody proceedings and stretch the application of the law to non-indigenous children.

“Obviously, I’m just concerned that the bar is so low that anytime anyone mentions a tribe, we have an ICWA case,” said Justice Richard L. Gabriel.

In the case at hand, the Denver Human Services Department sought to end the relationship between a neglected or abused child, named E.M., and E.M.’S mother. In the process, the mother indicated she had Apache and Sioux heritage. E.M.’S grandparents also reported Cherokee or Sioux ancestry, but no membership in any tribe.

Under the act, an “Indian child” means a minor who is an enrolled member of a tribe or who, as the child of a member, is eligible for enrollment themselves. One of the ways a juvenile court judge has reason to know if a child fits the definition is if someone involved with the proceedings says they have discovered “information indicating the child is an Indian child.”

Judge Pax Moultrie determined she had no reason to know E.M. was an Indigenous child and that ICWA did not apply to the case. On appeal, a three-judge panel for the Court of Appeals overturned her decision terminating the mother’s parental rights, deciding that the Cherokee, Sioux and Apache nations should have received notice of E.M.’S case.

The family members’ assertion of tribal lineage, wrote Judge Anthony Navarro, “was sufficient to give the court reason to know that the child is an Indian child and, thus, to trigger ICWA’S notice provisions.”

However, since then, three other Court of Appeals panels have also released decisions interpreting the reason-toknow standard. Two of them reached a different conclusion

— that a mention of tribal lineage only triggers further investigation, known as “due diligence.” While tribal notice is one method of investigating, it is not required under the act.

The Denver Human Services department and E.M.’S legal representative, Josi Mccauley, argued against the more expansive view.

“ICWA was not intended to protect all children,” she explained. “E.M. was just 5 days old when this case was filed. He’ll be 3 in August . ... While this court must consider the interest of potential tribes, it must weigh those interests against this child’s need for permanency.”

Mccauley elaborated on the requirements of the act that would apply should E.M. be treated as an Indigenous child. In addition to tribal notification and time constraints, a qualified expert witness familiar with the relevant tribe’s familial customs must testify. There cannot be a foster care placement or termination of parental rights unless there would likely be serious emotional or physical damage in the parent’s continued care.

Justice Melissa Hart observed that it was possible the tribal nations referred to by the mother’s family would have considered E.M. a member, even without the adults’ formal enrollment.

“The only reason there might be reason to know the child is an Indian child is if the tribe’s membership rules were such that the mother might not realize she was, in fact, a member, or might not realize the child was a member because she might not know what the membership rules are,” Hart said.

That was also the view of the Southern Ute and Ute Mountain Ute tribes, the two federally recognized tribes in Colorado that submitted a brief asking the justices to uphold the Court of Appeals’ decision. The tribes argued that state courts’ failure to notify them in cases implicating tribal children improperly allows state judges to determine membership, instead of sovereign Indigenous nations.

“Notice to a tribe should be early and accurate, and the tribes will determine their response and their allocation of resources. Preemptively deciding on behalf of tribes what tribes want is contrary to ICWA and tribal sovereignty,” they wrote.

Justice William Hood III asked whether the Supreme Court should be concerned about a “perverse incentive” for parents to falsely claim tribal heritage if they know they can delay a custody case once the act’s protections kick in.

“If the message to parents is that raising Indian heritage triggers notice to the tribes and the tribes are gonna tell the truth about who’s enrolled and who isn’t,” countered Joel Pratt, the attorney for the mother, “then the fastest way to address that perverse incentive is just to notify the tribes.”

Saroyan, the lawyer with the Office of Respondent Parents’ Counsel, reminded the justices that the act’s goal is ultimately to prevent the breakup of Indigenous families. The 2020 Census found 3.6% of Colorado’s population to be American Indian or Alaska Native, at least in part, with the descendants of at least 200 tribal nations living in the Denver metro area.

Because tribal nations can employ different metrics when determining if a child is affiliated with them, Saroyan argued the court should employ an “expansive” interpretation of the law.

“When Grandma says, ‘I have this ancestry.’” he told the justices, “she is essentially saying there’s a credible basis for believing there could be a political affiliation.”