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The question of when juvenile court judges have "reason to know" they are dealing with an American Indian child, thereby triggering longstanding protections for tribal nations, continues to surface in Colorado's appellate courts.

This week, the Colorado Supreme Court agreed to hear a case on the subject, two months after holding oral arguments in a similar appeal implicating the Indian Child Welfare Act. Then on Thursday, the state's Court of Appeals sent a different child welfare proceeding back to Logan County to ensure compliance with ICWA.

"The federal regulations implementing ICWA provide that a court has reason to know that a child is an Indian child if, as pertinent here, any participant in the proceeding informs the court that it has discovered information indicating that the child is an Indian child," wrote Judge Michael H. Berger in the appeals court's Aug. 18 opinion.

Congress enacted ICWA in 1978 to combat the forcible removal of American Indian children into non-tribal families and institutions. As one of the mechanisms to preserve tribal families and culture, ICWA directs state courts to inquire whether the child who is the subject of custody proceedings fits the definition of "Indian child." If the court has reason to know the child meets the criteria, the government is to send notice to the relevant tribal nations, giving them an opportunity to intervene in the case and assert their rights.

However, in recent months the Court of Appeals has been divided about whether a parent who asserts tribal lineage is itself enough to give a judge reason to know. Multiple appellate panels have said yes, and the Colorado Supreme Court reviewed one such case in June.

In that appeal, People in the Interest of E.M., the justices worried about the potential danger of requiring juvenile judges to apply ICWA procedures whenever a parent simply mentions a tribe without further corroboration. On the other hand, the two federally-recognized tribes in Colorado reminded the court that tribes alone define their membership, and notification of the tribal nations will enable them to respond appropriately to cases potentially involving their members.

Although the Supreme Court has not issued its decision yet, it opted on Monday to hear another case in which the Court of Appeals held, by contrast, a mother's report of Cherokee or Navajo ancestry did not give the juvenile court reason to know it was dealing with an American Indian child. Instead, the appellate panel believed the claim only obligated the government to investigate further — which could take the form of interviewing family members, questioning the mother or, conceivably, sending notice to the tribes anyway.

The Supreme Court will now review the Court of Appeals' conclusions in that case, People in the Interest of Jay.J.L. and Jac.J.L. The two "reason to know" appeals both arose from Denver.

In the Court of Appeals decision issued this week, a Logan County judge determined a child named S.P. was living in an unsafe environment and adopted a treatment plan for the mother. The mother had told the court her biological father was "full-blooded Sioux" and enrolled as a tribal member, although she could not identify the specific tribe.

Then-Chief Judge Michael K. Singer determined he did not have reason to know S.P. was an American Indian child.

The appellate panel, however, was able to sidestep the question of whether the mother's admission should have triggered notice to Sioux tribes. The county alerted the appellate judges that while the case was pending, it had gone forward and notified the relevant tribes.

"We don’t believe there was reason to know to begin with. But rather than make that an issue in the case, let’s do everything we can to show this is not an Indian child," Barry Meinster, the attorney representing S.P., told the Court of Appeals during oral arguments.

Consequently, the panel upheld Singer's findings about the child's injurious environment, but returned the case to the juvenile court to await the responses from the Sioux tribes. 

"If the juvenile court determines that the child is an Indian child, the court must proceed in accordance with ICWA," Berger advised.

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. This fall, the U.S. Supreme Court will hear an appeal alleging certain provisions of ICWA that are designed to prevent the breakup of American Indian families amount to unconstitutional discrimination on the basis of race.

The case is People in the Interest of S.P.

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