(2) Does ICWA apply to this child? People in Interest of L.L. , 2017 COA 38, ¶ 13, 395 P.3d 1209 ; Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act 9 (Dec. 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines).
See e.g., M.M., ¶ 3, ___P.3d ___; People in Int. of S.B., 2020 COA 5, ¶¶ 13, 21, 459 P.3d 745, 748-49; M.V., ¶¶ 43-44, 432 P.3d at 636-37; People in Int. of I.B.-R., 2018 COA 75, ¶¶ 9-16, 439 P.2d 38, 41-42; People in Int. of L.H., 2018 COA 27, ¶¶ 9-12, 431 P.3d 663, 665-66; People in Int. of J.L., 2018 COA 11, ¶¶ 13-22, 428 P.3d 612, 615-16; People in Int. of K.G., 2017 COA 153, ¶¶ 19-26, 488 P.3d 304, 307-08; People in Interest of L.L., 2017 COA 38, ¶¶ 21, 47, 395 P.3d 1209, 1212-13, 1216. ¶57 Significantly, section 19-1-126(3) buttresses our holding.
And, correspondingly, to the extent that other divisions of the court of appeals have expressly or impliedly reached a contrary conclusion, we overrule those decisions.See e.g., M.M. , ¶ 3, ––– P.3d –––– ; People in Int. of S.B. , 2020 COA 5, ¶¶ 13, 21, 459 P.3d 745, 748–49 ; M.V. , ¶¶ 43–44, 432 P.3d at 636–37 ; People in Int. of I.B.-R. , 2018 COA 75, ¶¶ 9–16, 439 P.3d 38, 41–42 ; People in Int. of L.H. , 2018 COA 27, ¶¶ 9–12, 431 P.3d 663, 665–66 ; People in Int. of J.L. , 2018 COA 11, ¶¶ 13–22, 428 P.3d 612, 615–16 ; People in Int. of K.G. , 2017 COA 153, ¶¶ 19–26, 488 P.3d 304, 307–08 ; People in Interest of L.L. , 2017 COA 38, ¶¶ 21, 47, 395 P.3d 1209, 1212–13, 1216. ¶57
To comply with ICWA's notice provisions, the court must confirm that the Department uses due diligence to identify and work with all tribes of which there is reason to know the child may be a member or eligible for membership and the child of a parent who is a member. 25 C.F.R. § 23.107(1)(b)(1) (2021) ; see also People in Interest of L.L. , 2017 COA 38, ¶ 25, 395 P.3d 1209. ¶ 15 The Department must directly notify each tribe by registered mail with return receipt requested of the pending child custody proceeding and its right to intervene.
Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines); see also People in Interest of L.L. , 2017 COA 38, ¶ 16, 395 P.3d 1209 (noting that, although the BIA's guidelines are not binding, we consider them persuasive). ¶ 18 The 2016 Guidelines explain the purpose of the Federal ICWA statute.
First, is the proceeding a child-custody proceeding as defined by ICWA? See People in Interest of C.A. , 2017 COA 135, ¶ 8, 417 P.3d 909 ; see also People in Interest of L.L. , 2017 COA 38, ¶ 13, 395 P.3d 1209 ; 25 U.S.C. § 1903(1). Second, is the child an Indian child?
To ensure tribes have an opportunity to be heard, the federal regulations and guidelines implementing ICWA require juvenile courts and human services departments to notify any identified Indian tribes when there is reason to know or believe an Indian child is involved in a child custody proceeding. People in Interest of L.L. , 2017 COA 38, ¶ 29, 395 P.3d 1209 ; see also 25 C.F.R. 23.11 (2018) ; 25 C.F.R. 23.111 (2018); see also Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act 11 (Dec. 2016), https://perma.cc/3TCH-8HQM; see also Notice of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016). In doing so, the department must directly notify the tribe by registered mail with return receipt requested of the pending proceeding and its right to intervene.
¶ 26 To adhere to ICWA's notice provisions, the Department must directly notify the tribe by registered mail with return receipt requested of the pending child custody proceeding and its right to intervene. People in Interest of L.L. , 2017 COA 38, ¶¶ 34-35, 395 P.3d 1209. The Department should try to provide sufficient information to the tribe for it to determine whether the child is a member or eligible for membership.
The trial court must ask each participant on the record at the beginning of every emergency, voluntary, or involuntary child custody proceeding whether the participant knows or has reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a); see also People in Interest of L.L. , 2017 COA 38, ¶ 19, 395 P.3d 1209. A proceeding to terminate parental rights is a separate child custody proceeding under ICWA.
In doing so, the Department must directly notify the tribe by registered or certified mail with return receipt requested of the pending child custody proceedings and its right to intervene. 25 C.F.R. § 23.111(a) (2017); see People in Interest of L.L. , 2017 COA 38, ¶¶ 34-35, 395 P.3d 1209. The notice must include: