Turtle Talk

Here is the opinion.

This case went to trial–a unique aspect of Oklahoma child welfare law–on January 23, 24, and 25, where the Mom testified about her work in getting the children enrolled in the Choctaw Tribe. When Mom appealed the termination of parental rights based on lack of ICWA compliance, the

¶10 State filed an objection and response asserting, inter alia: “At the time of trial, the evidence and record showed the children were not members of an Indian tribe.” It claimed that “the only other way the children could be defined as Indian children implicating the application of ICWA was if the children were ‘eligible for membership [in a tribe] of which the biological parent is a member.’ See BIA Regulations §23.108(a).” State argued that, because Mother testified she is a member of the Cheyenne Arapaho Tribe and the children are not eligible to be members of that tribe, “but that she was trying to enroll the children as Choctaw (of which she could not be a full member given her membership in Cheyenne Arapaho), there was no reason to believe the children met the definition of ‘Indian Child’ at the time of trial given the evidence and testimony in the record.” It argued that the record in the case showed that the children were not tribal members at the time of trial and the record only reflected their membership after Mother filed the motion for new trial.

(emphasis added)

Therefore,

¶28 Although it is clear the trial court and State may not have been affirmatively informed of the children’s membership in the Choctaw Nation until February 3, 2017, this date is not determinative of the date ICWA became applicable. We reiterate that the trial court and State had reason to know at trial that ICWA may very well apply and this warranted further investigation. Despite the Choctaw Nation’s previous communication about the children’s membership status, Mother’s detailed testimony about establishing her own membership and the children’s membership raised red flags that further inquiry at trial was needed despite the Choctaw Nation’s earlier communication.

¶29 We recognize that that does not mean that IWCA applied to the case from the date it was filed in 2011. ICWA became applicable on the date the children became eligible for enrollment³ or the date they enrolled, which was January 20, 2017. At the latest, ICWA applied as of January 20, 2017, a date before trial started. ICWA’s provisions, including the heightened burden and expert witness requirements, were applicable at trial.

The distinction between when a court has reason to know a child might be an Indian child and then when ICWA applies (prospectively, Oklahoma has frustratingly stated in the past, In re M.H.C., 2016 OK 88, 381 P.3d 710) is a question we get a lot.