In this decision, the Colorado Supreme Court decided whether the Indian Child Welfare Act (ICWA) requires a district court to hold an enrollment hearing and whether county departments have an obligation to assist children eligible for enrollment in becoming enrolled citizens of a tribal nation.
During the dependency and neglect proceedings, the father indicated he had Chickasaw heritage. The county department sent notices to the Chickasaw Nation. The Nation’s response indicated that while the children did not qualify as Indian Children under ICWA, they were eligible for citizenship and would qualify as Indian Children upon the enrollment of either their enrollment or the enrollment of their father. The Nation stated it had a vested interest in the welfare of children eligible for citizenship and requested that the department assist with enrolment. While the department filed notice of its certified mailings and return receipts, the department did not file the Nation’s response until filing its motion to terminate five and a half months later. The department did not appear to have advised either parent to complete the enrollment. The trial court ultimately terminated parental rights, determining that the department had made diligent efforts to determine if the children were Indian children, that parents had not enrolled the children, and that ICWA did not apply.
A division of the Court of Appeals reversed the district court’s termination order, ordering the district court to conduct an enrollment hearing to determine whether the children’s best interests required tribal enrollment.
The Colorado Supreme Court holds that the division erred in requiring an enrollment hearing, determining that neither ICWA nor Colorado’s implementing statute provide for such a hearing and that such a hearing conflicts with the Nation’s exclusive right to determine tribal membership. The Court also concludes that neither federal nor state law imposes on the department any obligation to assist with enrolling eligible children. In this case, the children were not Indian children as defined by ICWA because neither the children nor their parents were members of the Chickasaw nation and ICWA’s active efforts requirement does not apply. The Court holds that because the department made the required inquiries and the court determined after the Nation’s responses were filed that the children were not Indian children, the department satisfied its obligations to determine the children’s status. The Court also holds that the department’s responsibility to provide reasonable efforts did not require it to assist with tribal enrollment.
Notably, the Court does note that while a department is not legally obligated to enroll a child, its decision does not foreclose a department from assisting with enrollment or advising parents about the ramifications and benefits of enrollment. The Court acknowledges that such assistance might be the best practice in a case.
Justice Boatright, in a concurring opinion, states that educating parents of ICWA-eligible children and assisting them in enrolling the children should be recognized as a reasonable effort required by the department, not just a best practice.Click here to access the case in Westlaw.