¶ 8 ICWA establishes minimum federal standards to be followed when an Indian child is involved in a child custody proceeding. 25 U.S.C. §§ 1902, 1903(1), (4) (2012) ; People in Interest of L.L. , 2017 COA 38, ¶ 12, 395 P.3d 1209. "Of course, ICWA does not apply to every child-custody proceeding. Hence, in any such proceeding, the parties and juvenile court must ask two fundamental questions to determine whether ICWA applies to a case: (1) Does ICWA apply to the proceeding?
Because the BIA Guidelines are advisory and the status of the 2015 Guidelines is uncertain, we look to the 2016 Guidelines even though this case was filed before their effective date. See, e.g., People ex rel. L.L., 395 P.3d 1209, 1212 (Colo. App. 2017) (discussing 2015 and 2016 BIA Guidelines). Like the 2016 BIA Guidelines, the 2016 Regulations apply to proceedings initiated after December 12, 2016.
¶ 12 In order to protect Indian tribes and children, ICWA establishes minimal federal standards for child custody proceedings. 25 U.S.C. § 1902 (2012) ; see People in Interest of L.L. , 2017 COA 38, ¶ 12, 395 P.3d 1209. Such proceedings include any action that results in the termination of parental rights to an Indian child. 25 U.S.C. § 1903(1)(ii) (2012) ; B.H. v. People in Interest of X.H. , 138 P.3d 299, 302 (Colo.
Federal guidelines on ICWA are not binding, but they provide useful guidance in interpreting the statute. See People in Interest of L.L. , 2017 COA 38, ¶ 16, 395 P.3d 1209. ¶ 9
¶ 5 Thus, to fulfill its duties under ICWA, the Department must investigate the child's status early in the case. People in Interest of L.L. , 2017 COA 38, ¶ 30, 395 P.3d 1209. And, because only the tribe itself may determine its membership, id. at ¶ 20, the Department must promptly notify each tribe in which the child may be a member or eligible for membership, id. at ¶ 34 ; see also B.H. , 138 P.3d at 302.
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:
¶ 67 The BIA has repealed the 2015 guidelines and replaced them with the 2016 guidelines and implemented final regulations. People in Interest of L.L. , 2017 COA 38, ¶ 15, 395 P.3d 1209 ; Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778 (June 14, 2016) ; Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines); see also Notice of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016).
(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).
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.
¶ 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.