2018 COA 27
Colo. Ct. App.2018Background
- Mother was a respondent in a Colorado dependency and neglect proceeding that resulted in termination of parental rights to her child, L.H.
- Mother initially denied Native American heritage but later said her biological brother was registered with “Navajo–Diné,” without providing enrollment numbers or detailed tribal information.
- Jefferson County Department of Human Services sent multiple notices only to the Navajo Nation; the Navajo Nation replied that the family was not enrolled or eligible with the Navajo Nation.
- The Bureau of Indian Affairs (BIA) publishes lists of federally recognized tribes and lists tribes by historical affiliation; the Colorado River Indian Tribes (CRIT) are listed as historically affiliated with the Navajo.
- The trial court found ICWA did not apply based on the Navajo Nation’s response; the Court of Appeals concluded the Department should also have notified CRIT and remanded for limited compliance with ICWA notice requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICWA notice was sufficient where parent identified only a tribal ancestral group ("Navajo") without specific tribal enrollment details | Department (Petitioner) argued notice to the identified tribe (Navajo Nation) satisfied ICWA because the Navajo Nation found no enrollment record | Mother (Respondent) argued that identifying an ancestral group required notice to all tribes historically affiliated with that group (including CRIT) | Court held notice was insufficient; when only an ancestral group is indicated, the Department must notify all tribes in that ancestral group (including CRIT) |
Key Cases Cited
- Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) (ICWA enacted to address removal of Indian children and protects tribal interests)
- B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006) (tribes have distinct, equivalent interests and must be given meaningful opportunity to participate)
- People in Interest of N.D.C., 210 P.3d 494 (Colo. App. 2009) (agency must notify identified tribes when there is reason to know child may be Indian child)
- People in Interest of T.M.W., 208 P.3d 272 (Colo. App. 2009) (ICWA notice sufficiency reviewed de novo)
- United States v. Wheeler, 435 U.S. 313 (1978) (discussion of Navajo self-designation as Diné)