A.  Obligation to Notify

B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006)
The state’s obligation to notify potentially concerned tribes or the BIA necessarily arises before the ultimate determination of the child’s Indian status.

B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006)
Notice is required when the court or department has a reason to know or reason to believe the child in question may be an Indian child.



Reasons to believe occur when:

Reference
  • Any party to the case, Indian tribe, Indian organization, or public or private agency informs the court that the child is an Indian child.
Reference
  • Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child.
Reference
  • The child who is the subject of the proceeding gives the court reason to believe he or she is an Indian child.
Reference
  • The residence or the domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominantly Indian community.
Reference
  • An officer of the court involved in the proceeding has knowledge that the child may be an Indian child.
B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006)
The “reason to know” analysis is conducted using the totality of the circumstances, including the nature and specificity of the available information, but also the credibility of the source of that information and the basis of the source knowledge.

People in Interest of J.O., 170 P.3d 840 (Colo. App. 2007)
The parents cannot waive the tribe’s right to receive notice because the ICWA’s notice requirements serve the interest of the Indian tribes.

People in Interest of J.O., 170 P.3d 840 (Colo. App. 2007)
Notice gives the tribe a meaningful opportunity to participate in determining whether the child is Indian and to be heard on the issue of ICWA applicability. 

Reference
The Indian tribe is the best source of information on whether the child is an Indian child. 

25 U.S.C. § 1912(a)
The parent, Indian custodian, and the child’s tribe are entitled to notice of any proceeding in which a party seeks to place the child in foster care or terminate parental rights to that child.

25 U.S.C. § 1903(9)

25 U.S.C. § 1903(9)
Parent includes:
  • Any biological parent of an Indian child;
  • Any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom.
  • Parent does not include an unwed father where paternity has not been acknowledged or established.

25 U.S.C. § 1903(6)
Indian custodian is:
  • Any Indian person who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.
People in Interest of J.A.S., 160 P.3d 257 (Colo. App. 2007);


People in Interest of S.R.M., 153 P.3d 438 (Colo. App. 2006)


People in Interest of J.O., 170 P.3d 840 (Colo. App. 2007)
Tribes required to be served:

The specific tribe identified by the parent. For example, if the parent identifies the relevant tribe as the Citizen Potawatomi Nation, the Hualapai, or Rosebud Sioux, notice only needs to be provided to that specific tribe identified by the parent.

If the parent generically identifies membership in a tribe with multiple branches, notice must be sent to each branch. For example, if the parent asserts Apache heritage, but does not specify which Apache tribe, notice must be sent to each federally registered Apache tribe.

25 U.S.C. § 1912(a)

25 C.F.R. § 23.11(b)
The list of federally recognized Indian tribes is found at 72 Fed. Reg. 13648-13652.

If the parent asserts Indian heritage, but does not identify any tribe or tribal group, notice must be sent to the correct Bureau of Indian Affairs office.



For proceedings in Colorado, the address of the correct office is found at 25 C.F.R. § 23.11(c)(6).