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American Indian Law Clinic WINS in Colorado Court of Appeals

September 7, 2007

The American Indian Law Clinic (AILC) has been litigating a stepparent adoption case for four years that was heard last week by the Colorado Court of Appeals. It involves a critical question of whether Colorado should adopt the Existing Indian Family Exception that would bar the application of the Indian Child Welfare Act (ICWA) to certain cases where the Indian parents or Indian child are not culturally close to their tribe. The AILC argued against adopting this doctrine and against application of this doctrine to the facts of their case.

The AILC won on all issue of the main appeal, thus rendering moot the question of the cross-appeal. In the PUBLISHED DECISION, the Court of Appeals affirmed the trial court's order dismissing the adoption petition based on the failure to comply with ICWA, and rejected the Existing Indian Family Exception, finding the ICWA constitutional. 

This is a major ruling for Colorado because the question of whether Colorado courts would apply the judicial doctrine was an open one. The Court of Appeals also confirmed that the ICWA applies in private actions even when a state social services agency is not a party. The AILC’s client, the child’s mother, will retain her parental rights and will now be entitled to a hearing on her request for parenting time with her son.

Congratulations are due to the hard work, brains, and dedication of several Clinic student attorneys (some are now Colorado Law alumni):  Maggie Wetmore, Julia Morgenthau, Bonnie Sarkar, Lauren Templeton, Celene Sheppard, and Ann Rhodes. The student attorneys worked under the supervision of Clinical Professor of Law and Director of the AILC, Jill E. Tompkins. Thank you to the invaluable work of Padraic McCoy and Sarah Malstair on behalf of the Fort Peck Tribes, Faegre & Benson, and Holland & Hart’s team on behalf of the amici (the Colorado Indian Bar Association, the Southern Ute Tribe, and the Ute Mountain Ute Tribe) lead by Jennifer Weddle and Anthony Navarro.