OPa220311-051622

All the Courts of Appeals facing the question of reason to know should just go read this one (I’m looking at you, Colorado).

In this case the court ordered another investigation to ensure the children were not Indian children, and this bothered the state So Much that it asked for a writ of prohibition to avoid the order. The Court is pretty clear that the lower court has the power to order an investigation and dismisses the state’s argument that the lower court didn’t have “reason to know” in one succinct paragraph.

Finally, we reject the county’s assertion that the district court erroneously replaced the reason–to–know standard with a lower standard: that the children “might” be Indian children. “[R]eason to know” is “[i]nformation from which a person of ordinary intelligence . . . would infer that the fact in question exists or that there is a substantial enough chance of its existence that, if the person exercises reasonable care, the person can assume the fact exists.” Black’s Law Dictionary 1520 (11th ed. 2019). The word “might” means “to express possibility.” Random House Dictionary of the English Language Unabridged 1219 (2d ed. 1987). There is significant overlap between when a court “has reason to know” that a child is an Indian child and when there is a “possibility” that a child is an Indian child. On this record, we cannot say that the district court applied an incorrect standard. Moreover, as noted, even if a court has something less than a reason to know that a child is an Indian child, the court may nevertheless “choose to require additional investigation into whether there is a “reason to know” the child is an Indian child.” ICWA Guidelines, supra, at 11