The Colorado Supreme Court has agreed to hear two cases involving federal protections for children of tribal nations and the ability of suspects to make self-serving statements to use for their benefit at trial.

The latest announcements from the state’s highest court continue a recent trend of granting appeals over the Indian Child Welfare Act, a four-decade-old federal law passed by Congress to address the fact that Indigenous children were removed or adopted from their homes at rates far above the norm. In May of last year, judges ruled that counties have no obligation to help enroll eligible children in tribal nations, and will soon issue a ruling interpreting the “active efforts” that the state is required to undertake to avoid the break-up of Amerindian families. .

In the first case accepted for examination, People in the interest of EMDenver Human Services has initiated child protection proceedings against a mother, identified as DRM. The mother indicated she had Apache and Sioux heritage, which potentially triggered the protections for Native American children under ICWA, as the federal law is dubbed.

As part of ICWA requirements, affected tribal nations are supposed to receive notice when custody proceedings involve an Indian child – that is, a child who is a member of a tribe or who is eligible for membership taking into account the lineage of the child.

The purpose of the tribal opinion, according to the National Indian Law Library, is to allow tribes to intervene in proceedings in order to educate state courts about tribal culture and enable them to seek the transfer of the case in tribal court. Notification takes place when a court knows or has reason to know that an Indian child is involved in the case.

Denver Juvenile Court Judge Pax Moultrie ordered the Department of Social Services to gather additional information to determine if DRM’s child was, in fact, an Indian child. After the department decided to end the legal parent-child relationship for DRM, Moultrie decided she had no reason to know the child fit the definition, and she ended the relationship.

DRM appealed, arguing that Moultrie failed to ensure the appropriate tribes were notified. The department had learned from the mother that she had Sioux or Apache heritage, but had also learned from the grandmother of the potential of Sioux and Cherokee, and the possibility of Sioux from the grandfather.

The Department of Human Services countered that in previous court proceedings involving DRMs, notice had been sent to the Apache and Sioux tribes, and tribal nations reported that his children were not Indian children.

In December 2021, a three-judge state Court of Appeals panel determined that the juvenile court failed to comply with ICWA. Moultrie had reason to know that DRM’s child is an Indian child and any prior investigation into the status of the child should not have been a reason to avoid sending further notice to tribal nations.

“Here, the department’s investigation did not ensure that the enrollment criteria for Apache or Sioux tribes had not changed,” Judge Anthony J. Navarro wrote for the panel. “In addition, the investigation revealed a third affiliation, Cherokee, which had not been previously investigated.”

The Supreme Court will assess whether the findings of the Appeals Committee were correct and will also assess whether the Court of Appeals erred in deciding that the mother can appeal any other decision made by Moultrie after retracing her steps to comply. at ICWA.

In the second case, People vs. McLaughlinThe government is challenging a Court of Appeal ruling that overturned Charles Joseph McLaughlin’s drunk driving convictions based on video shown to jurors that the Court of Appeal found misleading.

After a pickup truck collided with a concrete median and came to rest in an Arapahoe County parking lot, an officer found McLaughlin with the vehicle, unsteady and smelling of alcohol. Camera footage carried by the officer showed McLaughlin repeatedly referring to an unnamed woman who was supposed to be driving his truck.

“She, uh, broke up,” McLaughlin said after the officer asked what happened to his truck.

“Why didn’t you get here and park?” asked the officer.

“I didn’t,” McLaughlin said, again referring to the woman. “I haven’t driven anything. I’m sitting here trying to figure out what’s going on because…she’s gone and over there,” he added.

At trial, jurors were shown a redacted video with all references to the woman removed. The trial judge warned the defense that if jurors saw the entire video, the prosecution could also introduce evidence from McLaughlin’s previous felony convictions. The defense chose not to proceed with the unredacted video in light of this choice.

The Court of Appeal agreed that the edited video allowed the prosecution to create a narrative that McLaughlin had no idea how his vehicle landed in the parking lot, when in fact he claimed to the officer that a woman was involved. The panel cited the “Rule of Completeness,” which aims to guard against misleading impressions from out-of-context evidence.

Prosecutors “not only injected this misleading impression into the case, they relied heavily on it to secure a conviction,” Judge Ted C. Tow III wrote.

The Supreme Court will hear the government’s appeal against this decision. The attorney general’s office argues that the ruling opens the door to defendants making self-serving statements at the time of arrest in an attempt to influence the jury later.