Michael Karlik, Colorado Politics May 29, 2020
A county welfare agency failed to enroll two children in the tribal nation of their grandfather, which the Colorado Court of Appeals ruled was a violation of the law that protects the interests of Indian children.
The Logan County Department of Human Services in May 2018 alleged the neglect of twins who were one month old, K.C. and L.C. Their mother indicated that the children’s father had Chickasaw heritage, and the county notified the tribal nation. The Chickasaw Nation responded that the twins were eligible for citizenship because their paternal grandfather was a citizen.
The nation asked that the parent or guardian — in effect, Logan County’s human services department — assist in filling out the paperwork enrolling the children as members of the tribe. Because the children were not at this point tribal citizens, they did not fall under the Indian Child Welfare Act, a 1978 law that allows tribal involvement in custody placements. Congress passed the legislation in response to a trend of native children being placed with non-indigenous families. An estimate from 1974 suggested that 25% to 35% of all Indian children were in non-Indian households or institutions.
“[W]e have a vested interest in the welfare of children who are eligible for citizenship with the Chickasaw Nation,” the tribe wrote in the case of K.C. and L.C. The department, however, did not complete the paperwork, and in April 2019 it moved to end the mother’s custody rights.
Only then did Logan County disclose the nation’s request to the juvenile court. The judge, finding that the children were not enrolled tribal citizens, determined there was no role for the ICWA in this case.
Colorado law provides that courts must confirm whether a child services agency tried “to verify whether the child is in fact a member, or a biological parent is a member and the child is eligible for membership” in a tribe. Guidelines from the federal Bureau of Indian Affairs further advise social workers to facilitate tribal membership where possible.
On Thursday, the appellate court’s three-member panel ruled that in dependency and neglect proceedings, a county must communicate to the juvenile court as soon as it receives a tribe’s request for a child’s enrollment in the nation. In her opinion, Senior Judge Janice B. Davidson wrote that “we have little trouble deciding that a department’s ICWA-mandated due diligence necessarily includes the requirement that it timely inform the juvenile court of tribal interest in obtaining citizenship or membership for an enrollment-eligible child.”
A court must then conduct a hearing to determine “whether it is in the children’s best interests” to become tribal citizens — a decision which Davidson emphasized was not the county’s alone to make.
Tribes have the ability to set their own eligibility for membership, but the ICWA presumes that having tribal ties is desirable for children due to the access to tribal services, programs and protections that membership allows. The U.S. Court of Appeals for the Fifth Circuit, based in New Orleans, is currently considering a case that challenges the constitutionality of the ICWA.
“Their culture is at stake and the future of their people is at stake,” said Cherokee Nation Principal Chief Chuck Hoskin Jr. to Vox. The child in the Fifth Circuit case is Navajo and Cherokee.
Because Logan County did not comply with the ICWA, the Colorado appeals court determined that there needed to be a new hearing for the children in which the parents and the human services department could testify. If the juvenile court judge were to decide to enroll the children, the ICWA would guide further proceedings.
The case is People in Interest of K.C. and L.C.