A 1978 federal law that guides custody proceedings for Indigenous children is at the center of a state Supreme Court case about how much effort trial courts and welfare agencies in Colorado must put into ensuring current or potential tribal members gain the protections Congress intended.
Congress enacted the Indian Child Welfare Act in the wake of Indigenous children being removed at high rates from their homes to non-Indian families. The law allows tribal nations to intervene when children are members of an Indian tribe, or if they are eligible for membership and have a parent who is a member.
In a case arising from Logan County, the Chickasaw Nation, based in Oklahoma, had sent paperwork to enroll two twin children, K.C. and L.C., as members. The county’s Department of Human Services, however, failed to assist in filling out the paperwork.
“The court just kind of shrugs its shoulders and doesn’t do anything?” Chief Justice Brian D. Boatright asked Assistant Logan County Attorney Kimberlee Keleher, after she argued to the justices that there was no legal authority for the department to pursue enrollment of the children.
“The department should not be in a position of creating in any way — or assisting in creating — this political relationship between a child and a tribe. They are just not best suited to do so,” Keleher told the court during oral arguments on March 9.
The Department of Human Services for the county started welfare proceedings for K.C. and L.C. in May 2018, and then learned there was Chickasaw heritage on the father’s side of the family. The county notified the tribal nation, and the Chickasaw tribe responded that the twins’ paternal grandfather was a member, and therefore they were eligible for citizenship.
At that point, the twin infants were not covered under ICWA because they were neither members nor were they the eligible child of a member. Although the department did not fill out the enrollment paperwork, it communicated to the judge about the tribe’s interest in the matter. The judge subsequently decided the case did not implicate ICWA because the twins did not meet the criteria.
The Court of Appeals disagreed, and subsequently ordered the lower court to hold a hearing to determine whether tribal enrollment was in the best interest of the twins.
But on appeal to the Supreme court, the justices cautiously explored the possibility of imposing a requirement on Colorado’s child welfare system beyond that laid out in federal law.
In passing ICWA, Justice Richard L. Gabriel said, Congress found the United States has “a direct interest in protecting Indian children who are members or are eligible for membership in an Indian tribe. That would suggest there is some obligation on behalf of the government to assist a child who’s eligible.”
“What’s the big deal about imposing a due diligence requirement?” Justice William W. Hood III added.
Keleher responded that the department’s job was to file the tribe’s response with the trial court and, in her opinion, both county agencies and judges are poorly-situated to determine whether tribal enrollment for eligible children should occur.
“They are hands off,” she contended. “It is really the tribe and the parents, rightfully so, because they have the interest and so they should have the power to trigger the protection of ICWA.”
Always a benefit to ICWA
The justices heard the exact opposite analysis from Kathryn Fort, director of the Indian Law Clinic at the Michigan State University College of Law, who represented the Chickasaw Nation in the case of K.C. and L.C. She argued the Court of Appeals had ordered an unnecessary hearing over whether tribal enrollment was in the children’s best interest.
“It is always in a child’s best interest to be a tribal citizen,” Fort said. “They will receive the protections of ICWA and the benefits of being tribal citizens, including what we know to be protective factors and resiliency factors.”
Among the assets of tribal membership, she listed health and education benefits, a sense of belonging and a right to participate in their culture. Specifically, Chickasaw girls are “culture bearers,” who pass on lessons to future citizens.
While acknowledging Fort’s arguments as compelling, Hood asked whether a new mandate from the Supreme Court to enroll tribal children “doesn’t constitute essentially judicial policymaking that would be better left to the General Assembly?”
Fort responded that while K.C. and L.C. may not be tribal members yet, “these children are Chickasaw.”
“This is not a scenario where the letter comes back from the Chickasaw Nation saying, ‘No, these children are not Indian children and they are not eligible for citizenship in the Chickasaw Nation.’ This is a case where the letter comes back, very directive, and asks the parent or legal custodian to please fill out the certificate degree of Indian blood application, which is three pages, and the one page for Chickasaw citizenship,” she explained.
Under the law, courts have reason to know a minor is an Indian child if any party so much as informs the judge that the child qualifies. Parties can also alert the court to information indicating tribal status.
Congress in 1975 established a commission to comprehensively review Indian affairs. It held 28 days of hearings involving 250 witnesses, and concluded that removing Indigenous children from their households was a form of destroying tribal culture and structure under the guise of “civilizing Indians.” As many as 35% of Indigenous children were living in non-tribal homes and institutions.
“It is baseline racism to assume that because a culture is different from the dominant culture it is inferior,” the commission wrote in its 1976 report.
The body noted there was no requirement at the time that public or private social services agencies notify a tribe when they take action involving a tribal member. Even if a tribe sought to advocate for its interests in child custody proceedings, “it cannot do so as a matter of right.”
The Indian Child Welfare Act established that right, although the state-based nature of the child welfare system means implementation of ICWA requirements is not uniform.
Compliance with ICWA in cases involving Indigenous children is a recurring stumbling block in Colorado. Two days after the Supreme Court heard oral arguments, the Court of Appeals returned a parental rights case to Denver juvenile court after finding the judge and the Department of Human Services knew the mother disclosed Blackfeet and Cherokee heritage, but did nothing to contact the tribes.
In fact, Juvenile Court Judge Laurie A. Clark said during the termination of parental rights that “all letters had gone out and no tribe has come back stating that (the child) is eligible for enrollment,” even though there was no evidence that was true. Clark herself had never ordered the department to make such a contact, according to the appellate court’s summary.
That same day, a separate Court of Appeals panel sharply critiqued a different Denver judge for deciding two children did not fall under ICWA, despite the mother’s clear admission of her heritage and a tribal representative telling the court the Confederated Tribes of the Colville Reservation considered the children members, even though they were not enrolled.
“Under these circumstances, the failure of the juvenile court and the Department to recognize their duty to apply ICWA’s protections contravened the letter and spirit of ICWA and Colorado’s ICWA implementing legislation and risked delay, disruption, and avoidable separation for the children and family,” wrote Judge Ted C. Tow III.
In her annual catalogue of ICWA-related appeals, Fort identified approximately 200 cases across the country in 2019 that raised questions about the law’s application. She noted three such cases in Colorado.
There have been calls for more comprehensive data collection to determine if ICWA is accomplishing its goals, as Indigenous children are still overrepresented in the foster care system. The National Indian Child Welfare Association announced in January it had met with the incoming Biden administration, raising concerns with them about the implementation of ICWA.
Speaking to the state’s obligation, Josi McCauley, the court-appointed advocate for K.C. and L.C. in the Logan County case, argued to the Supreme Court that Colorado and federal law require interaction between local governments and tribes when eligible Indian children are involved.
“This would include ongoing communication with the tribe. And the federal regulations, in fact, also encourage proactive contact with the tribe, such as emails or phone calls or things of that nature,” she said.
Still, justices seemed wary of imposing that directive absent a clear order of the General Assembly.
“Where does it end?” asked Gabriel. “Why shouldn’t we just say, ‘under the law, once we have a statement they are not Indian children, the department’s obligation is over?'”