Colorado Wrote the Indian Child Welfare Act Into State Law, Along With the Question the Supreme Court Left Open

When a child has lived with a foster family for two years and calls them Mom and Dad, how much should that bond count?

Under Colorado's new Indian Child Welfare Act, the bond alone is not enough to keep the child there.

The history here is real. In 1978, Congress passed the federal Indian Child Welfare Act, often called ICWA. Congress found that state agencies had been removing Native American children from their families at very high rates and placing most of them with non-Native families, often far from their tribes. ICWA set national rules for these cases: tribes must be notified, tribal courts get a say, agencies must work harder to keep families together, and there is an order of preference for where a Native child is placed.

Until 2025, Colorado law simply told its courts to follow the federal ICWA. HB25-1204 replaces that with a full state version, called the "Colorado Indian Child Welfare Act." It says its purpose is to keep Native children in Colorado protected "should the federal law be appealed, modified, or otherwise annulled." In plain terms, it keeps the rules in place even if the federal law is changed or thrown out.

1. It sets an order of placement for foster care. A Native child in foster care must be placed according to the tribe's own order of preference. If the tribe has not set one, the law provides one: first the child's other parent, then extended family, then a foster home approved by the tribe, then another member of the tribe, then other Native families, then a licensed foster home where at least one foster parent is Native, then a facility approved by a tribe or run by a Native organization.
2. It sets a separate order for adoption. For adoption or permanent guardianship, the order runs from extended family, to members of the child's tribe, to members of another tribe the child could join, to Native families the child knows, to Native families from similar tribes, and finally to "another Indian family."
3. It makes exceptions hard. A judge may place a child outside that order only if someone proves "good cause" by "clear and convincing evidence," a high standard of proof. The reasons allowed include the child's own wishes if the child is old enough, keeping siblings together, serious medical or emotional needs, no preferred home being available after a careful search, or the parent's request.
4. It limits what a judge may consider. Good cause "may not be based" on the tribe's income level, on opinions about tribal or federal Indian Affairs systems, on distance from a reservation, or "solely on the ordinary bonding or attachment" a child has formed with a foster family that is lower on the list.
5. It requires a culture plan in adoptions. When a Native child is adopted by a family that does not include a member of the child's tribe, the court must require a written plan for how the child will stay connected to tribal culture and family. That plan can be enforced in court.
6. It raises the effort agencies must make. Agencies must make "active efforts" to keep a Native child with family or reunite the family, a standard the law calls "higher" than in other cases, and they must work with the tribe to do it.

Put the two placement lists side by side. On the adoption list, every option is a relative, a tribal member, or a Native family. A non-Native family does not appear on it at all. A non-Native family can adopt only through the "good cause" exception, proven by clear and convincing evidence. And the bond the child has formed with that family cannot carry the case by itself.

The Legislature's findings describe a 2023 Supreme Court case, Haaland v. Brackeen, this way: the Court "upheld ICWA in its entirety." The very next sentence reads: "Even with Haaland v. Brackeen upholding ICWA, the law remains subject to challenge."

Look closely at both sentences. In Brackeen, the Supreme Court voted 7-2 to reject two arguments against ICWA: that Congress lacked the power to pass it, and that it improperly forces states to carry out a federal program. But the Court did not decide the question many people remember the case for. That question is whether ICWA's preferences, which depend on a child's tribal membership, violate the Constitution's guarantee of equal treatment under the law, known as equal protection. The Court did not rule on it, because it found the people bringing that argument did not have the legal right to raise it in that case. So "upheld ICWA in its entirety" claims more than the Court decided.

The second sentence is the admission. Lawmakers wrote this law because they expect that open question to come back to court. The first sentence tells Coloradans the fight is over. The second explains why the bill was needed.

This bill has a strong case, and it deserves to be heard in full. Tribes are sovereign governments with their own laws. The Supreme Court held in 1974, in Morton v. Mancari, that a federal hiring preference for tribal members was a political classification based on tribal membership. Supporters of ICWA rely on that reasoning. The harm ICWA was written to stop was real, and state governments did it. Keeping a child connected to extended family is a conservative value, and ICWA puts extended family first. States are free to write their own child welfare rules, and Colorado is doing exactly the kind of state-level lawmaking conservatives usually defend.

That case persuaded a lot of people. HB25-1204 passed the House 62-2 and the Senate 33-1, and Republicans cosponsored it.

Those are serious arguments, and the lopsided vote reflects them. Two concerns remain anyway.

The first is the individual child in front of the judge. Colorado custody law usually asks what is best for this particular child. HB25-1204 says a Native child's best interests are decided "in consultation with" the tribe, and it builds the placement order into that decision. A judge who believes a child will thrive with a bonded foster family cannot rest that decision on the bond alone. The law puts the category ahead of the individual child.

The second is the open constitutional question. Is a preference based on tribal membership a political line or a racial one? Brackeen left that undecided. Before 2025, if the Supreme Court had ruled against ICWA on that question, Colorado's simple "follow federal law" statute would have followed along. Now Colorado has its own law. A federal ruling would put it directly in question, and until then, Colorado courts will keep applying it.

Watch how Colorado courts apply the "good cause" standard, and how often a bonded foster family's request succeeds. Watch the culture plan requirement in adoptions. And watch for the equal protection challenge that lawmakers themselves expect. As of September 24, 2026, we found no lawsuit challenging HB25-1204.

HB25-1204 passed the House 62-2 and the Senate 33-1. The House accepted the Senate's changes 57-7 and passed the final version 55-10. Its lead sponsors were Representatives Monica Duran and Junie Joseph and Senator Jessie Danielson, all Democrats, with Republican cosponsors including Carson, Frizell, Lundeen, and Simpson. Governor Jared Polis signed it May 31, 2025. It did not carry a "safety clause," so voters could have gathered signatures to put it on the ballot. No one did.

Colorado wrote ICWA into state law so the question the Supreme Court left open could not undo it. That question is still open.

This is our read of the law. We encourage you to read it yourself and reach your own conclusions.