In this case, a division of the Court of Appeals found that a 2019 revision of Colorado’s ICWA statute, C.R.S. § 19-1-126(3), did not alter the applicability of ICWA’s notice requirements. Specifically, the division held that the current understanding of the “reason to know” standard applies in most situations when a parent indicates they have “reason to know” that a child is an Indian child (i.e., refers to heritage with a specific tribe, a tribal ancestral group, or even a tribal connection to a specific state or region).

The 2016 ICWA Regulations provide that ICWA applies if there is reason to know the child is an Indian child, unless and until it is determined that the child is not an Indian child as defined by ICWA, 25 CFR 23.107(b). The E.M. decision essentially upholds the current best practice under ICWA that once the “reason to know” threshold is met, department should send notice to tribe(s). In so doing, the division rejected the department’s position that “reason to know” triggers a procedure whereby the department or court may gather additional information before notice is required.

Note: The Colorado Supreme Court has granted cert on this case.

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