## Facts

- B.H. was the biological mother of minor child X.H. Neither was enrolled in an Indian tribe.
- During dependency and neglect proceedings, X.H.’s maternal grandmother reported Native American ancestry, and agency records reflected possible Indian ancestry through the mother and grandmother.
- The county department did not contact any tribe, did not investigate tribal eligibility, and did not provide notice to any tribe or the Bureau of Indian Affairs.
- The department moved to terminate B.H.’s parental rights.
- On the eve of the termination hearing, the court was alerted that Indian ancestry had been reported and that no ICWA notice had been given.
- The trial court proceeded with the termination hearing without providing ICWA notice and terminated B.H.’s parental rights.

## Issues

1. When the state and the court have information suggesting a child may be an “Indian child,” whether ICWA requires notice to potentially affected tribes (or the Bureau of Indian Affairs) before termination of parental rights.
2. What level of information constitutes “reason to know” or “reason to believe” that an Indian child is involved, triggering ICWA notice duties.
3. Whether ICWA’s notice obligations depend on the parent first proving the child’s tribal membership or eligibility.

## Decision

- The Colorado Supreme Court vacated the termination order and remanded.
- The court held that the information in the record gave the department and the court reason to believe X.H. might be an Indian child, triggering ICWA notice requirements.
- The court rejected an approach that effectively placed the initial burden on the parent to prove Indian-child status before notice is required.
- On remand, the court required ICWA-compliant notice to potentially affected tribes (or the Bureau of Indian Affairs if the tribe could not be identified) and an opportunity for tribal participation before any renewed termination decision.

## Legal Principles

- When a court knows or has reason to know an Indian child may be involved in a child-custody proceeding, ICWA requires formal notice to the child’s tribe, or to the Secretary of the Interior/Bureau of Indian Affairs if the tribe cannot be identified.
- The threshold to trigger notice is low; credible information suggesting Indian ancestry or potential tribal eligibility is sufficient to require notice and further inquiry.
- Tribal determinations of membership or eligibility are for tribes, not state courts or agencies; lack of enrollment does not resolve Indian-child status.
- Failure to provide required ICWA notice is a fundamental procedural defect requiring vacatur of a termination judgment entered without notice once the “reason to know/believe” standard is met.

## Conclusion

The Colorado Supreme Court held that reported Indian ancestry created a sufficient basis to trigger ICWA’s notice requirements and that terminating parental rights without notifying potentially affected tribes (or the Bureau of Indian Affairs) required vacating the termination order and remanding for ICWA-compliant proceedings.


B.H. v. People ex rel. X.H., 138 P.3d 299 (Colo. 2006)