ICWA Cases and Tribal Court

The Indian Child Welfare Act (ICWA) in Colorado Cases

Many Denver family law firms have little or no experience with ICWA cases. That can become a serious problem when they take on an “ICWA case.” The Indian Child Welfare Act, commonly called ICWA, applies to certain custody, foster care, and adoption cases involving an Indian child. These cases involve a mix of state family law, federal law, and tribal authority, and they may arise when someone seeks to place a qualifying child with a non-parent, in foster care, or for adoption. Because the rules are detailed and the stakes are high, mistakes by an attorney who does not regularly handle ICWA cases can cause delays or even lead an appeals court to overturn the outcome.

Congress passed ICWA in 1978 after Native children had been removed from their families on a large scale and placed in non-Native homes and boarding schools. At the time, an estimated one-quarter to one-third of Native children nationwide had been separated from their families, putting tribal cultures, traditions, identities, and communities at risk. Colorado passed its own ICWA law in 2023, adding even stronger requirements for people who bring these cases in Colorado courts. An attorney handling an ICWA case in Colorado therefore needs to understand both federal ICWA and Colorado’s law.

ICWA gives tribes a meaningful voice in custody cases involving an “Indian child.” It also favors keeping the child with their parents unless there is a serious risk of emotional or physical harm. If placement outside the home is truly necessary, the law imposes placement preferences in favor of extended family, and it also requires efforts to maintain a continued connection to the child’s tribe.

When ICWA applies

ICWA applies any time a state court has "reason to know" that a child involved in a case is an Indian child, whether that comes up in a dependency and neglect case, a guardianship, a non-parent custody case, or an adoption. Colorado courts are required to ask about this on the record. If information is provided that indicates the child might be an Indian child, the tribe must be formally notified and provided the right to participate in the proceedings.

Experience necessary for ICWA cases

Handling an ICWA case requires knowledge and experience that goes beyond a general family law background:

• Knowing how to identify, comply with the notice requirement, and communicate with the specific tribal nation involved.

• Understanding "active efforts," the higher standard ICWA requires the petitioning party to meet before any form of custody can be granted to a non-parent or child welfare agency, which goes well beyond what state law requires in a non-ICWA case.

• Understanding the “qualified expert witness” requirement and how to fulfill that role.

• Experience litigating jurisdiction, court-appointed counsel, and transfer issues.

Colorado’s ICWA: How it builds on federal law

As noted above, Colorado passed its own version of ICWA in 2023, adding protections beyond those provided under federal law. These heightened requirements include:

• It explicitly clarifies that it covers more case types. The law applies to non-parent custody cases, guardianships, foster care placements, termination of parental rights actions, adoptions, and parentage cases. In addition to actions brought by the state for removal of a child, it also applies when a grandparent, stepparent, or other non-parent asks a court for custody or an allocation of parenting time. Federal ICWA does not provide this explicit list of case types.

• Cases must check for tribal ties from day one. The person petitioning the court must state in their first court filing whether the child may be Native American. They must also show real effort to find out, including asking relatives and contacting tribes directly. Federal rules only require the court to make the inquiry at the commencement of the proceedings. 

• Adds five extra "best interest" factors. Colorado ICWA adds five explicit best interest factors that the court must consider when ruling on the petition. For example, judges must consult the child's tribe and consider the child's connection to their tribe and culture. The judge must also weigh the tribe's interest in its own future by and through the placement of the child. Federal law has no list of best-interest factors for Native American children.

• Help with tribal enrollment. If an eligible child isn't enrolled yet with the tribe, the filing party or the tribe must help enroll them, unless a parent objects. Federal law imposes no duty on the petitioning party to help enroll a child.

• Appointed Counsel. The court must appoint a lawyer for the child. Under federal law, a lawyer for the child is up to the judge’s discretion.

• More support for tribal participation. Colorado ICWA makes it easier for tribal participation, as it clarifies that tribes can participate in a case at any time without hiring a local lawyer. The tribe is entitled to access all case documents, and a court may deny a request to transfer the case to tribal court only upon a showing of good cause under the comprehensive standards set forth in Colorado’s ICWA law. Federal law does not make these rights as explicit.

• Mediation Requirement. The court is required to offer mediation to the parties before it can enter a final ruling on the petition, ensuing that the parties are engaging in formal dispute resolution before the case proceeds to trial. Federal ICWA does not afford participants the right to mediation.

• Cultural Compacts. Indian children adopted or placed with a guardian who is not a member of the child’s tribe must have a "cultural compact" in place, which is a plan for keeping the child connected to their culture. Federal law also has no cultural compact requirement.

• Tribal customary Adoption. Colorado ICWA also requires courts to consider alternatives to terminating parental rights, including a tribal customary adoption that preserves the parents' legal rights. Federal ICWA doesn't require judges to rule out milder options before ending parental rights.

Frequently Asked Questions

What makes a child an "Indian child" under ICWA? The federal statute defines “Indian child” as an unmarried child under age 18, who is either a member of a federally recognized tribe or eligible for membership and the biological child of a tribal member. Eligibility, not just enrollment, can be enough to trigger the law, as long as one of the child’s parents is presently enrolled.

Does ICWA apply if my child has never lived on a reservation? Yes. ICWA and Colorado ICWA apply the same protections regardless of where the child currently lives. 

Can a Colorado state court keep a case instead of transferring it to tribal court? Only if the judge finds "good cause to the contrary" after looking at the specific circumstances, and that finding has to be supported by the facts of the case rather than a general reason to prefer state court. However, if the child resides on the reservation, then the state court very likely cannot hear the case no matter what.

What if the state or county missed the ICWA notice requirements? This is one of the more common reasons ICWA cases get overturned on appeal. If proper notice was not given to the relevant tribe, that failure can affect the validity of everything that happened afterward, which is exactly why consulting an attorney with ICWA experience early matters.