An opinion from the Colorado Supreme Court on Monday clarified some questions surrounding jurisdictional authority between a tribal government and the state government regarding parental rights. The case involved twins eligible for tribal membership and has the lawyers involved in the decision hopeful that the outcome will have an impact on similar cases.
People in the Interest of Minor Children K.C. and L.C., clarifies how children can be declared members of an Indian Nation and what is required from the Department of Human Services to inform parents of their children’s possible tribal enrollment. While the debate has centered on whether the department is required to aid and inform parents of how to enroll children in a tribal nation, the Colorado Supreme Court ruled that “in our view, however, neither federal nor state law imposes on the Department any obligation to assist in enrolling eligible children in a tribal nation.”
However, while not finding a legal obligation to assist parents in similar situations, the opinion does state that it should be considered a best practice to do so.
According to Kate Fort, director of the Indian Law Clinic at the Michigan State University College of Law and an amicus filer in the case, the impact of the decision could have been massive if the court had required DHS to aid the parents. “The biggest issue, when you look at the facts of this case, is that the agency had that information and just didn’t act, which was really unfortunate,” Fort said.
In fact, Chief Justice Brian Boatright wrote in a concurring opinion that “in my view, it is more than a ‘best practice.’” Boatright wrote separately because he believes that in order to satisfy reasonable efforts requirements, DHS must educate Indian Child Welfare Act-eligible children’s parents on the advantages of enrollment to the specific tribe and then assist those parents with enrolling if the parents decide it is in their child’s best interest.
“Here, the Nation was identified and had verified that the children were eligible for enrollment,” Boatright wrote. “All that needed to be done was to have one of the parents fill out an application. Under such facts, educating the parents and assisting them with enrollment is — at the very least — reasonable.”
Boatright wrote that this reasonability was especially clear when considering the “significant” public policy interests implicated by a child becoming an Indian child under the act and that the different tribes offer members different benefits, services and opportunities.
The case arose from a termination of parental rights which eventually grew to include the Indian Child Welfare Act, the Chickasaw Nation, the Colorado Supreme Court and the future eligibility of two twins to become members of the Chickasaw tribe.
The ICWA governs jurisdiction over the removal of Native American children from their families and to address concerns about forced removal of Native children from their homes and cultures. Tribes have exclusive jurisdiction over children who are tribal members and live on tribal land under the ICWA, but for children who are tribal members but aren’t living on tribal lands, tribal and state courts share jurisdiction.
“I do think the question of ICWA-eligible children is an interesting one that does tie the courts in knots,” Fort said.
The ICWA established a minimum of federal standards for removal of Indian children from their families and placement in foster or adoptive homes reflecting values of Indian culture and providing assistance to tribes in the operation of child and family programs.
Debra Dodd, a solo practitioner and contract attorney for the Office of Respondent Parents Council and appeals of the Office of Child’s Representative represented the mother of the twins in the appeal. She said Colorado law mirrors national law around the ICWA almost identically.
When the ICWA applies to child custody proceedings, it has a requirement that in any involuntary proceeding in a state court where the court knows or suspects that the child has Indian nation affiliation, that nation must be notified. And, if any state court proceeding for foster care or terminating parental rights of an Indian child isn’t on the reservation, the court has to transfer the proceeding to the tribe’s jurisdiction — and the tribe has the right to intervene in the case at any point.
Tribes constantly struggle with obtaining accurate notice, Fort said, adding that she has sympathy for front-line social workers tasked with figuring out from parent statements or testimony which of the over 500 tribes to send notices to, and how to do it. “That’s hard,” Fort said, adding that tribes have designated personnel to contact about these situations and that try to provide information to social workers.
The case started when twins were born prematurely, testing positive for marijuana, and required a long stay at the neonatal ICU. During the twins’ stay, the Logan County Department of Human Services filed a motion for removal from the home and temporary protective custody.
The district court granted the motion, and shortly after, the mother submitted forms declaring that the children weren’t tribal members and weren’t believed to be eligible for tribal membership. As the DHS filed a dependency and neglect petition, the father was identified and indicated he had Chickasaw heritage but wasn’t a member of the Chickasaw Nation himself.
Following the ICWA, the DHS sent notices to the nation for confirmation of Indian status. The nation responded, stating that the twins didn’t qualify under the ICWA, but the nation added that the twins and father were eligible for citizenship through the twins’ paternal grandfather, who was an enrolled citizen of the nation. Although the ICWA didn’t apply to the case at the time, the nation had a vested interest in the children’s welfare. The Chickasaw Nation then requested that the DHS advise the twins’ legal guardians to complete enrollment information on behalf of the children.
The mother was never informed of this information prior to termination of parental rights, according to Dodd. According to the order, the DHS included in termination documents the response from the nation saying the children were not tribal members but were eligible for citizenship.
If the mother had been better informed, Dodd said, she could have enrolled the children in the tribe on her own, but she was never told she could. “It would have triggered a lot more protections for her and for the twins.”
The children were never enrolled in the nation, and the juvenile court wasn’t aware of the nation’s request until a 2019 DHS motion was granted, terminating the mother’s rights.
While the department did notify the nation in the case, Ford said the DHS didn’t do anything to inform the parties about the documentation or notification after they received the response from the nation.
“Ultimately, the issue that the Chickasaw Nation found in this case is that the state had taken on the role of acting as legal guardian, and the tribe couldn’t enroll the children without the documents that a legal parent or guardian had, so they couldn’t intervene as a party — they were caught in a Catch-22,” Fort said.
The mother appealed, arguing that the judgment should be vacated because the DHS failed to take steps to enroll the twins in the Chickasaw Nation. The Court of Appeals concluded that the judgement should be vacated and remanded, but for different reasons.
When the Supreme Court finally reached its conclusion, it found that neither Colorado nor federal law requires the department to assist with or facilitate the children’s enrollment in the nation — although in a given case it “might be the better practice to do so.”
“That said, we hasten to add that we in no way intend to foreclose a human services department from providing such assistance or from advising respondent parents as to the ramifications (and potential benefits) of their children’s enrollment in a tribal nation,” the opinion states.
The case, while narrow to the twins’ situation, isn’t a rare occurrence according to Dodd and Fort.
When looking at the ICWA’s impact across the nation, Fort said some states have taken action to tighten up the Indian children definition beyond the ICWA. In Michigan, for example, Fort said that a state act defined an Indian child as one who is enrolled as a tribal member or who is eligible for tribal membership “full stop.”
If Colorado had a state law such as Michigan’s, Fort said the case in question would not have even come up because the state version of ICWA protections for Indian children would have come into play. Fort said this makes a lot of sense to her especially in cases such as this where children are being removed from their families and terminating parental rights.
And when generally speaking about paperwork and procedure, jurisdictional and departmental assistance can vary, Dodd said.
Dodd added that the father of the twins had a prior termination case, and that child would’ve been in the same position as the twins. She said the Chickasaw Nation also sent a letter in that case with the prior son, and that issue wasn’t appealed.
Dodd said her client is disappointed that the court reinstated the lower court’s termination of parental rights, but as an appellate attorney, she was happy with the opinion because it created “good case law for the state of Colorado.”
“If the court had found the obligation, it would have had a massive impact at practice,” Ford said. If the court had said that they agreed with Boatright’s concurrence about reasonable efforts requiring education of the parents, or if Boatright had been able to garner a majority of the justices to his opinion, that would have had a major impact.
However, Fort said she’s hopeful that the opinion will lead to change. As the opinion stands currently, Fort said it means that the fight continues another day to work on getting state agencies to take on informing and working with documentation and nations throughout processes involving tribal eligibility.
“I do think that it will have a positive impact, and I’m hopeful that it will,” Dodd said of the case outcome. She pointed to the opinion of the court mentioning that although an agency isn’t required to do anything to help under the law, it is a best practice to do so. “And so, the fact that we have the Supreme Court of Colorado saying this is the best practice and what you should do, I think the agencies will take notice of this.”
“I think there’s lots of people in Colorado doing important work in this area,” Fort said. “And this is an opportunity for legislative fixes, it’s an opportunity for ICWA court in Denver to agree with Boatright’s concurrence.”
This article was updated at 9:48 a.m. on June 1, 2021, to correct misspelling of a name.