Colorado’s Recent Struggles with Notice Standard [ICWA]




Colorado has long had a very low bar to trigger the reason to know provision of ICWA. The B.H. case from 2006 has long been a model for other states that involve the question of what information does a court need to trigger the “reason to know” requirement of 25 U.S.C. 1912(a). And here, in a recent CO Court of Appeals case, is what the current debate over how the regulations have changed the standards boils down to:

But an assertion of possible Indian heritage alone does not fall within a “reason to know” factor that would permit a participant or the court to assume the child is an “Indian child” under section 19-1-126(1)(a)(II). Thus, this type of an assertion does not require formal notice to a tribe or tribes to determine whether the child is an “Indian child.”

In re A-J.A.B., 2022 COA 31, P58

The state law referenced is the Colorado adoption of 25 C.F.R. 23.107(c), the regulations that are supposed to guide courts regarding the “reason to know” standard. However, this is a fundamentally different standard than that articulated by B.H.:

Because membership is peculiarly within the province of each Indian tribe, sufficiently reliable information of virtually any criteria upon which membership might be based must be considered adequate to trigger the notice provisions of the Act.

138 P.3d 299, 304

The court of appeals states that state law has changed enough that B.H.’s reasoning was done under a different standard than the one in effect today (ICWA, of course, has not changed).

Much like the discussion in the In re Z.J.G. case, we are again debating the points of the six factors the regulations articulate as giving a court reason to know, and how they (according to the CO Courts of Appeals) narrow the reason to know standard, rather than guide it.

We agree with the E.M. division that information about the child’s heritage does not constitute “reason to know” that the child is an Indian child under section 19-1-126(1)(a)(II)(A). Information about a possible affiliation with two tribal ancestral groups does not satisfy one of the six reason to know factors

2022 COA 31 at P71

It is honestly stunning to me (though it should not be), that the passage of federal regulations means we are all now re-litigating notice issues that had long been settled. Last week, the Colorado Court of Appeals held

We conclude that a parent’s assertion of Indian heritage, standing alone, is insufficient to trigger ICWA’s notice requirements but, rather, it invokes the petitioning party’s obligation to exercise
due diligence under section 19-1-126(3). We further conclude that the exercise of due diligence under this provision is flexible and depends on the circumstances of, and the information presented to the court in, each case. Nonetheless, the record needs to show that the petitioning party earnestly endeavored to gather additional information that would assist the court in determining whether there is reason to know that the child is an Indian child.

People in re J.L., 2022 COA 43, P3

And now, “due diligence” is an “earnest endeavor” on the part of the state when a parent tells the Court they have tribal relations. However, in both cases the court of appeals sent the case back due to the lack of “due diligence” to follow up on these statements by the parents. The Court in A-J.A.B. gives a very detailed remand instruction regarding due diligence, and what the Court will need by date certain.

To lower my blood pressure and end this post, I will remember what the Washington Supreme Court held, when faced with very similar facts and laws:

We hold that a court has a “reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage. We adopt this interpretation of the “reason to know” standard because it respects a tribe’s exclusive role in determining membership, comports with the canon of construction for interpreting statutes that deal with issues affecting Native people and tribes, is supported by the statutory language and implementing regulations, and serves the underlying purposes of ICWA and WICWA. Further, tribal membership eligibility varies widely from tribe to tribe, and tribes can, and do, change those requirements frequently. State courts cannot and should not attempt to determine tribal membership or eligibility. This is the province of each tribe, and we respect it.

In re Z.J.G., 471 P.3d 853, 865.

Texas and Prospective Adoptive Parents File Constitutional Challenge to ICWA and Regulations

Complaint here (northern district of Texas).

Additional documents will be posted here.

Plaintiffs thus bring this action for declaratory and injunctive relief and pray that this court:

(1) vacate and set aside the Final Rule;

(2) declare that Sections 1901–1923 and 1951–1952 of ICWA violate the Constitution;

(3) declare that Section 1915 of ICWA violates the Constitution;

(4) enjoin the defendants from implementing or administering Sections 1901–1923 and 1951–1952 of ICWA; and

(5) enjoin the defendants from implementing or administering Section 1915 of ICWA.

Final AFCARS Rule with ICWA Elements

Here is the final Adoption and Foster Care Analysis and Reporting System Rule incorporating a number of new data elements states will have to report to the feds. These elements include important information on ICWA cases and placements. Many people in our field worked very hard to get these elements included, which required a supplemental notice and comment period.

This is the first time these ICWA data elements will be required by the federal government. The first anticipated annual AFCARS report that will include the information is anticipated by 2020 (thanks, Heather, for this information!).

2016 BIA ICWA Guidelines Released

Here are the 2016 Guidelines. For those keeping track at home:

February 2015, Updated Guidelines replacing the 1979 Guidelines (No Longer in Effect)

June 2016, Federal Regulations released (Became Binding on December 12)

December 2016, Updated Guidelines replacing the February 2015 Guidelines

What this means:

25 USC 1901 et seq (ICWA) has not changed in 1978, and provides the minimum federal standards for Indian families. State ICWA laws (and corresponding court rules) that provide higher standards still apply. The federal Regulations are now binding and are like the federal law. The December 2016 Guidelines are now in effect and are non-binding interpretation of the Regulations (given the way they are drafted).


AFCARS Comments Due May 9

As we previously posted, for the first time, the federal government is proposing to collect data on state ICWA cases. If you, or your employer, or your tribe are willing to let the feds know you think this is a good idea, please submit comments by MAY 9 over here.

Want to submit something but aren’t sure what to write or don’t have time to research all of these acronyms? We have you covered:

Model comment for in-house counsel from MSU

Model comment for tribes from NARF

Model comment for tribes/tribal social services from NICWA.

Organizations and Law Professors Comment on Proposed ICWA Regulations

Here is a selection of a few of the major groups in support of the proposed ICWA regulations (as available from or sent directly to us at fort [at] law [dot] msu [dot] edu):

American Bar Association
Association on American Indian Affairs
California Indian Legal Services
Casey Family Programs, with additional signatories including NNABA and TLPI
Children’s Defense Fund
The Donaldson Adoption Institute
ICWA Law Center
Michigan Tribal-State Judicial Forum
Michigan Indian Legal Services
National Indian Child Welfare Association
National American Indian Court Judges Association
National Council of Juvenile and Family Court Judges
Letter from:
Advocates for Children and Youth
Children’s Defense Fund
Children and Family Futures
Child Welfare League of America
Foster Family-Based Treatment Association
Generations United
National Children’s Alliance
National Crittenton Foundation
National Foster Parent Association
Nebraska Appleseed
Nebraska Families Collaborative
New Mexico Child Advocacy Networks
North American Council on Adoptable Children

Law Professors Comment. Signed by 21 clinicians, professors, and deans representing more than 15 law schools.

Times have certainly changed since the original Guidelines were issued. Administrative law and the power of the federal government have shifted considerably in the past forty years. In addition, there was no way the federal government could foresee the dramatically different applications of ICWA across the fifty states. These new regulations are necessary because without them the application of the law is arbitrary, with Indian children treated differently depending on which state’s courtroom they are in. Having disparate interpretations of ICWA was certainly not the intent of Congress in passing a federal law, and conflicts with the rationale of the Supreme Court’s decision in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 45-46 (1989) (describing the need for uniformity in defining ‘‘domicile’’ under ICWA). These regulations will provide a stronger measure of consistency in the implementation of ICWA and prevent the application of different minimum standards across the United States, contrary to Congress’ intent.

One of our second year law students at MSU Law, Whitney Gravelle, was a huge help in researching issues related to administrative authority and getting a first draft going.


Tribal Nation Comments on the Proposed ICWA Regulations

An updated list–I know there are still some missing that were submitted, so please send them on if you’d like to be added (

Prairie Band Potawatomi Nation
Grand Traverse Band of Ottawa and Chippewa Indians
Swinomish Indian Tribal Community
Habematolel Pomo of Upper Lake
Mashantucket Pequot Tribal Nation
Pueblo of Pojoaque Tribal Court
Southern Ute Indian Tribe
Stillaguamish Tribe of Indians
Omaha Tribe of Nebraska
Tulalip Tribes
Central Council Tlingit and Haida Indian Tribes of Alaska
Cedarville Rancheria of Northern Paiute Indians
Colorado River Indian Tribes
Lac du Flambeau Band of Lake Superior Chippewa Indians
Confederated Salish and Kootenai Tribes of the Flathead Nation
Wyandotte Nation
Fond du Lac Band of Lake Superior Chipppewa
Yakutat Tlingit Tribe
Sac and Fox Nation
Big Sandy Rancheria
Gila River Indian Community
Elem Indian Colony
Port Gamble S’klallam Tribe
Native Village of Port Heiden
Beaver Village Council
Lower Elwha Klallam Tribe
Confederated Tribes of the Umatilla Indian Reservation
Pokagon Band of Potawatomi
Samish Indian Nation
Confederated Trbies of Siletz Indians
White Earth Nation
Sault Ste. Marie Tribe of Chippewa Indians
Ho-Chunk Nation
Ho-Chunk Nation, Tribal Attorney
Temecula Band of Luiseno Mission Indians
Nottawaseppi Huron Band of the Potawatomi
Standing Rock Sioux Tribe
The Shoshone-Bannock TribesNative Council of Port Heiden
Puyallup Tribe of Indians

Cherokee Nation of Oklahoma
Cherokee Nation Principal Chief Proclamation
Cherokee Nation Tribal Council Resolution
Letter from AAG, Chrissi Ross Nimmo
Letter from ICW ED, Nikki Baker Limore

Comanche Nation Social Services
Nez Perce Tribe Social Services Department
Quinault Indian Nation, Office of the Attorney General
Lac Vieux Desert Band of Lake Superior Chippewa Indians, Office of the Prosecutor
Oklahoma Indian Child Welfare Association
Alaska Native Health Board
United South and Eastern Tribes

Call for Written Comments on New AFCARS Regulations

We’ve written about this in the past. Here is a letter from NICWA explaining more about the regulations, and the reason for written comments (and if you scroll to the bottom, they’ve even provided a sample comments letter):

Dear Advocates for the Indian Child Welfare Act,

The National Indian Child Welfare Association has been diligently working for over 25 years to increase state compliance with the Indian Child Welfare Act (ICWA). This has included training of state and tribal workers, helping tribes develop inter-governmental agreements with states, participating in state and federal ICWA cases, and advocating for federal monitoring of state ICWA compliance. One of the areas where the greatest need exists is data collection. No federal agency collects comprehensive data on the status of native children and their families who are involved in state child welfare proceedings and subject to ICWA.

 NICWA has advocated for the Administration for Children and Families (ACF) under the Department of Health and Human Services to collect ICWA data on individual cases, both because of the relationship they have with states through funding and policy, and because of federal law and policy that directs them to collect some related data. ACF has resisted efforts to collect more comprehensive ICWA data in the past, but draft regulations published in the Federal Register on February 9, 2015 propose collecting new data within the federal government’s largest data system for children who are placed in out of home care by state or county child welfare authorities. This system is the Automated Foster Care and Adoption Reporting System (AFCARS) and these proposed regulations present the best opportunity for tribal nations to finally convince ACF to collect ICWA data.

 NICWA is making the case that these proposed regulations should also include ICWA data elements, which are open for public comment until April 10, 2015, but we need your help if we are going to convince ACF to do this. The process for evaluating comments and what changes should be made in AFCARS will look at the number of individual comments ACF receives as well as the content of those comments. In other words, if we are able to provide ACF with substantial numbers of comments that recommend the inclusion of ICWA data elements in AFCARS, we may finally have a federal data system that regularly collects and tracks ICWA data. To make your job of filing comments easier, NICWA has provided a sample comments letter that you can use or modify as you see fit. We are also providing instructions below on how to file your comments electronically.

 This is an almost a once in a lifetime opportunity to finally get a more comprehensive collection of ICWA data. The last time AFCARS was open for substantive changes was in the early 1990’s so we probably won’t see another opportunity like this for many, many years. NICWA will be filing comments, but we also need your help too. If you have any questions about AFCARS, the proposed regulations, or how this will help ICWA compliance, please don’t hesitate to contact either myself or Addie Smith I want to thank you in advance for your help to increase the information and tools we have to increase protections under ICWA for our native children and families.

Best Regards,

David Simmons

Notice of Public Rulemaking on AFCARS

AFCARS Sample Comments Letter

Instructions on how to file comments electronically via (see link below for submission)!submitComment;D=ACF-2015-0001-0001

  1. In the Comment box provide your name, contact information, and who you are submitting the comments on behalf of. State that you are uploading a file attachment that contains your comments. Don’t try to copy your comments letter in here unless it is less than 5000 characters (approximately 1.25 pages of text).
  2. In the Upload File(s) box click on Choose File then select the comments letter from your computer.
  3. In the First Name and Last Name boxes add the contact person’s name
  4. Check the appropriate box for whether you want to show your contact information or whether you are submitting the comments on behalf of a third party.

David Simmons, MSW | Director of Government Affairs and Advocacy

National Indian Child Welfare Association

5100 SW Macadam Avenue, Suite 300

Portland, OR 97239

BIA Proposes Federal Rule (!) to Govern ICWA Implementation

Press release here:

In keeping with President Obama’s commitment to supporting Indian families and building resilient, stable and thriving tribal communities, Assistant Secretary – Indian Affairs Kevin K. Washburn today announced that the Bureau of Indian Affairs (BIA) has published a proposed rule to govern the implementation of the Indian Child Welfare Act of 1978 (ICWA) by state courts and child welfare agencies. The proposed rule also includes changes to current regulations that govern notice to state agencies under ICWA.

“The Bureau of Indian Affairs’ proposed rule clarifies and strengthens implementation of the Act’s requirements in Indian child custody proceedings to ensure that Indian families and tribal communities do not face the unwarranted removal of their youngest and most vulnerable members,” Washburn said. “I want to thank all those who attended listening sessions and provided comments and recommendations for our updated guidelines. Their contributions helped inform this proposed rule, which seeks to protect Indian children and families. We look forward to receiving more comments and feedback throughout the rulemaking process.”

The Department will be conducting tribal consultations and public meetings on the proposed rule through May 2015 to facilitate input and comment on the proposed rule. Tribal consultations are open only to representatives of federally recognized Indian tribes. Public meetings are open to everyone.

The public and tribal hearings times and locations are listed on the press release. It looks like the first public one is in Portland during the NICWA conference. Written comments will be due 60 days after publication (3/20/15).

These are different from the recently released Guidelines in that they would be binding–not persuasive–authority. 

Pre-publication regulations here. 55 pages long. From the overview–

This proposed rule addresses ICWA implementation by State courts and child welfare agencies, including updating definitions, and replacing current notice provisions at 25 CFR 23.11 with a proposed new subpart I to 25 CFR part 23. The proposed new subpart also addresses other aspects of ICWA compliance by State courts and child welfare agencies including, but not limited to, other pretrial requirements, procedures for requesting transfer of an Indian child custody proceeding to tribal court,
adjudications of involuntary placements, adoptions, and termination of parental rights, voluntary proceedings, dispositions, and post-trial rights.

For example, the proposed rule clarifies ICWA applicability and codifies that there is no “Existing Indian Family Exception (EIF)” to ICWA. Since first identification of the EIF in 1982, the majority of State appellate courts that have considered the EIF have rejected it as contrary to the plain language of ICWA. Some State legislatures have also explicitly rejected the EIF within their State ICWA statutes. When Congress enacted ICWA, it intended that an “Indian child” was the threshold for application of ICWA.

The Department agrees with the States that have concluded that there is no existing Indian family exception to application of ICWA. The proposed rule also promotes the early identification of ICWA applicability. Such identifications will promote proper implementation of ICWA at an early stage, to prevent–as much as possible—delayed discoveries that ICWA applies

Federal Register site here.