ICWA on Appeal New Challenges and New Approaches, 0120 COBJ, Vol. 49, No. 1 Pg. 8

PositionVol. 49, 1 [Page 8]

49 Colo.Law. 8

ICWA on Appeal: New Challenges and New Approaches

Vol. 49, No. 1 [Page 8]

Colorado Lawyer

January, 2020



Dependency and neglect cases are governed by complex legal systems. In Colorado, for example, these cases are brought under the Colorado Children's Code.1 But they are also subject to a significant piece of federal legislation: the Indian Child Welfare Act of 1978 (ICWA).2 These two statutory schemes generally live in harmony. But ICWA's mandates pose substantive and procedural challenges to state dependency and neglect cases that involve or may involve children who are members of or are eligible for membership in an Indian tribe, known under ICWA as "Indian children." This is no less true on appeal.

This article addresses ICWA's significance, its unique attributes, and its interplay with state statutes. It then discusses two approaches the Colorado Court of Appeals has taken to improve ICWA compliance in dependency and neglect cases: (1) revising the appellate rule governing dependency and neglect cases to require a statement of ICWA compliance in all appellate briefs, and (2) implementing a specialized ICWA division. Finally, the article provides practice pointers for practitioners and judicial officers for ensuring greater ICWA compliance.

ICWA's Significance, Attributes, and Interplay with State Statutes

ICWA was born of rising concern over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.3 ICWA's provisions aim to protect and preserve Indian tribes and their resources and to protect Indian children.4

ICWA recognizes that Indian tribes have a separate interest in Indian children equivalent to, but distinct from, parental interests.5 To protect this interest, it establishes federal standards for child custody proceedings involving Indian children.6 A child custody proceeding encompasses any action that results in the foster care placement of an Indian child or termination of parental rights to an Indian child.7

Jurisdictional Components

Central to ICWA are its provisions governing jurisdiction over state child custody proceedings involving Indian children.8 ICWA creates a "dual jurisdictional scheme" for Indian child custody proceedings.9 In certain circumstances, ICWA provides for exclusive tribal jurisdiction over Indian children.10 In other circumstances, ICWA creates concurrent subject matter jurisdiction in state and tribal courts.11 In this sense, ICWA is a jurisdictional statute.12

Other Components

Beyond its jurisdictional provisions, ICWA sets forth procedural and substantive standards that apply when child custody proceedings concerning Indian children occur in state courts.13 Among other things, ICWA grants an Indian child's tribe the right to intervene at any stage in a state court proceeding for foster care placement of or termination of parental rights to the child.[14]As a result, ICWA's procedural standards require that the applicable tribe or tribes receive notice of the foster care placement or termination proceeding and of their right to intervene.15

ICWA also imposes procedural standards for Indian children that are not required in other dependency and neglect cases. Any party seeking to effect a foster care placement of or termination of parental rights to an Indian child under state law must satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.16 And a court may not order foster care placement absent a determination by clear and convincing evidence, including testimony of qualified expert witnesses, that the child's continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.17 If the state seeks to terminate parental rights, the court must make this same determination by proof beyond a reasonable doubt.[18]


The Supremacy Clause invalidates state laws that interfere with or are contrary to federal laws.19 Where Indian affairs are concerned, a broad test of preemption must be applied.20 The U.S. Supreme Court has emphasized the special sense in which the preemption doctrine must be applied to state laws that affect tribal interests.21 The Court explained that "[t]he unique historical origins of tribal sovereignty and the federal commitment to tribal self-sufficiency and self-determination make it treacherous to import... notions of preemption that are applied in other contexts."22 Thus, state jurisdiction over an issue is preempted by federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.23

ICWA's Remedy for Noncompliance

Congress has created a unique remedy when state courts do not follow ICWA's mandates. ICWA authorizes an Indian child, parent, or tribe to petition any court of competent jurisdiction to invalidate a termination judgment upon a showing that such action violated certain of its provisions.[24] A court of competent jurisdiction includes an appeals court.25

New Federal Regulations

When enacting ICWA, Congress authorized the Bureau of Indian Affairs (BIA) to develop rules and regulations for carrying out ICWA's provisions.26 The BIA's original regulations primarily addressed funding and administration of Indian child and family service programs; they gave only minimal guidance on ICWA's notice procedures.27 These regulations remained in effect until 2016.

In 2016, the BIA issued a rule to "promote[] the uniform application of [f ]ederal law designed to protect Indian children, their parents, and Indian [t]ribes."28 It updated definitions and notice provisions in the existing regulations.29 And, of particular significance, it added anew subpart to address ICWA implementation by state courts to "promote[] nationwide unity and provide [] clarity to the minimum [f]ederal standards established by the statute."30 The new regulations interpret many of ICWA's provisions. For example, they

■ define terms such as "active efforts" and "continued custody";

■ mandate that courts ask all participants in a child custody proceeding on the record whether they know or have reason to know that the child is an Indian child, and if there is a reason to know, treat the child as an Indian child unless and until the court determines otherwise;

■ impose criteria for determining whether there is good cause to deny transfer of a proceeding to tribal court;

■ establish standards for who may serve as a qualified expert witness; and

■ further clarify how to apply ICWA's placement preferences.31

In addition to the regulations, the BIA has promulgated three sets of guidelines to implement ICWA—in 1979, 2015, and 2016. In 2015, the BIA observed that although much had changed in the 35 years since publication of the original guidelines, many of the problems that led to ICWA's enactment persisted.32 The current guidelines, published in 2016, encourage greater uniformity in ICWA's application by providing examples of best practices for its implementation.33Though not binding, the guidelines historically have been cited as persuasive authority by Colorado appellate courts.34

New Approaches to Ensuring ICWA Compliance on Appeal

Against this backdrop, the Colorado Court of Appeals has faced an ever-increasing challenge to effectively address ICWA compliance in dependency and neglect appeals. To meet this challenge, the court employed three main approaches. First, members of the court recommended changes to C.A.R. 3.4, the appellate rule governing dependency and neglect cases, to require every party submitting an appellate brief in a dependency and neglect proceeding to address whether the juvenile court record demonstrated compliance with ICWA. Second, the court formed a specialized division to address issues regarding compliance with ICWA's inquiry and notice provisions. Third, the court continued to resolve issues regarding compliance with ICWA's notice and substantive provisions through published opinions. This article addresses the first and second approaches.

Requiring All Parties to Address ICWA Compliance in Appellate Briefs

The State Court Administrator established a Respondent Parents' Counsel (RPC) Work Group in 2014 to analyze the current RPC program and recommend improvements.[35] This included—among other things—evaluating the appellate process and C.A.R. 3.4.36

The Work Group recommended significant revisions to C.A.R. 3.4, including adding the requirement that the opening and answer briefs include a statement of ICWA compliance separate from the parties' statements of the issues presented for review. The Colorado Supreme Court adopted the proposed revisions to CAR...

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