Parent’s Attorney Misunderstands ICWA; Arkansas COA Goes Along With It

Here is the opinion in King v. Arkansas Dept. of Human Services (Ark. Ct. App.):

King v Ark DHS Opinion

Maybe it’s a little thing, maybe not, but the court allowed an attorney to withdraw from representation, in part, on this representation:

The remaining adverse ruling was the denial of Hailey’s motion for a continuance, which was based on her assertion D.K. is an Indian child within the meaning of the Indian Child Welfare Act, entitling the Kiowa Tribe to notice of the proceedings. As explained in counsel’s brief, an Indian child is defined as “any unmarried person who is under age eighteen [8]  and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]” (Emphasis added.) 25 U.S.C. section 1903(4). Counsel further explains D.K.’s paternal grandmother, who was an enrolled member of the Kiowa tribe, testified that D.K.’s father, her son, was not eligible for membership in the Kiowa tribe because she was the last generation to satisfy the tribal requirement of at least one-quarter blood. Thus, her son could not be a member of the tribe. She further explained that her son was not enrolled in the Cherokee tribe either, even though he was allowed to receive medical treatment through the Cherokee Nation because she is a registered Indian and is his mother. As noted by counsel, “even if the father were eligible to be enrolled as a Cherokee, that fact is not relevant because the statute requires that he actually be enrolled in order for D.K. to be considered an Indian child.” We agree. D.K. is not an Indian child under the Act; consequently, it did not apply. Therefore, the trial court did not err in denying the motion for continuance because notice to an Indian tribe was not required.

Unfortunate, because the first step for parents’ counsel (and the child’s attorney most especially) should be to figure out whether an unenrolled parent is eligible for membership, get that parent enrolled, and get the tribe involved. Perhaps parent’s counsel is overworked and didn’t have the time or resources to make the effort, but did take the effort to file a notice of appeal. Deeply unfortunate, and likely endemic to the state system. The court of appeals could have done good work here and remanded to require counsel to perform diligently.