IN THE MATTER OF J.W.E., I.W.E., and J.W.E., Alleged Deprived Children, DAVA WHITE EAGLE, Appellant,
STATE OF OKLAHOMA, Appellee.
Mandate Issued: 04/11/2018
FROM THE DISTRICT COURT OF BLAINE COUNTY, OKLAHOMA, HONORABLE
MARK A. MOORE, TRIAL JUDGE.
J. Casey, Watonga, Oklahoma, for Appellant.
Fields, DISTRICT FOUR DISTRICT ATTORNEY, Molly B. Neuman,
ASSISTANT DISTRICT ATTORNEY, BLAINE COUNTY DISTRICT
ATTORNEY'S OFFICE, Watonga, Oklahoma, for Appellee.
T. Allsup, Kingfisher, Oklahoma, for the Minor Children.
P. WISEMAN, PRESIDING JUDGE.
Dava White Eagle (Mother) appeals a trial court order denying
her motion for new trial and an order terminating her
parental rights after jury verdict. The dispositive issue
before us is whether there was trial court error or abuse of
discretion in denying the motion for new trial because the
federal Indian Child Welfare Act (ICWA) applied to the
proceedings at the time of trial. After review, we conclude
it was error not to grant the motion for new trial when ICWA
applied to the proceedings when the trial started. The
decision is reversed and the case is remanded for further
AND PROCEDURAL BACKGROUND
A trial on the State of Oklahoma's petition to terminate
Mother's parental right to JeWE, IWE and JoWE, was held
on January 23, 24 and 25, 2017. After deliberation, the jury
returned a verdict to terminate Mother's parental rights
on the grounds of abandonment pursuant to 10A O.S. §
1-4-904(B)(2), failure to correct the conditions that led to
the adjudication of the children as deprived pursuant to 10A
O.S. § 1-4-904(B)(5), and failure to contribute to the
support of the children pursuant to 10A O.S. §
1-4-904(B)(7). The jury found by clear and convincing
evidence that Mother's parental rights should be
terminated on each of these grounds.
At trial, Mother testified she was a member of the Cheyenne
Arapaho Tribe. When asked whether JeWE, IWE and JoWE were
members of an Indian tribe, she stated, "Not yet."
She testified, "I've got an application for them
to--they're in the process of being enrolled in the
Choctaw Tribe." She explained that the children were not
members of the Cheyenne Arapaho Tribe because of their blood
quantum, indicating that the children must be one-quarter to
qualify for membership in the Cheyenne Arapaho Tribe. She
said the children were "in the process of being enrolled
in the Choctaw Tribe." At trial, State asked Mother,
"You know that the Choctaw Nation has also sent a letter
that says they don't qualify. Do you understand
that?" Mother replied, "No.... 'Cause I spoke
with them recently and I talked with the Indian child welfare
from the Choctaw Tribe and she said that they were in the
process of being enrolled." Mother "didn't know
where--at what point they were at; she just knew they were in
the process." She stated that she is "becoming an
established member because in order for [the children] to
become members [she has] to be an established member."
She stated that she did not switch tribes and she is still
enrolled with the Cheyenne Arapaho Tribe. She explained that
she "became an established member with the Choctaw
Tribe, " which "means that [she doesn't]
receive any benefits from the Choctaw Tribe because [she is]
still an enrolled member of the Cheyenne Tribe." She
agreed that she can be an enrolled member of only one tribe.
She is becoming an established member solely to get the
children enrolled with the Choctaw Tribe and "[t]hey
will receive the whole benefits of whatever the Choctaw Tribe
provides for... their tribal members."
When later questioned about her efforts to enroll the
children with the Choctaw Tribe, she stated that the process
was taking so long because she was trying to get birth
certificates and Social Security cards for the children. She
thought she could get them on her own, but then found she
could get them from DHS. As to the process of enrolling the
children, she testified:
Then I had to call up to genealogy at the Choctaw Nation and
find out who was on the roll to get--to get my kids on,
because it's through lineage. I found that it was my
mom's--my great-grandpa was the one who was on the roll.
So I had to tie my relationship to my great-grandpa. So I had
to get birth certificates for my mom and my mom's dad,
and death certificates for both of them, which that took some
And I had to--first I had to find out my grandpa--my
great-grandpa's roll number and find out if he was even
on the roll.
So I found all that out, got the birth certificate for my
grandpa and death certificate for my grandpa and my mom. And
then I had to get my birth certificate and then get birth
certificates of my children and then the social security
cards of everybody except for my mom and my grandpa. And then
I had to mail all those in.
agreed that it was "quite a process." She said it
usually takes three months for the Choctaw Tribe to make a
Scott Walters, employed by DHS as a child welfare specialist,
was asked at trial: "Now, all through the time that this
case has been pending mom has attempted to enroll her
children in various Indian tribes but that has not been
successful to this point; is that correct?" Walters
replied, "That is correct." Walters stated,
"We did receive a letter from the Cheyenne Arapaho Tribe
as well as the Choctaw Tribe stating that the children were
not eligible for enrollment." He testified that at the
beginning of the case, DHS approached it as though the
children were Indian children.
In its final order terminating Mother's parental rights
filed January 31, 2017, the Court stated that it had
previously found that JeWE, IWE and JoWE "are not
members or eligible for membership with an Indian
Nation/Tribe and are not Indian Children as defined by the
State and Federal Indian Child Welfare Acts." It is the
children's status as Indian children at the time of trial
on which we focus in this appeal.
After the final order was filed on January 31, 2017, Mother
filed a motion for new trial pursuant to 12 O.S. § 651
on February 3, 2017. Mother alleged, among other things:
Shortly after the announcement of the verdict by the Jury,
the Mother received notice by mail that the children were
enrolled members of the Choctaw Nation of Oklahoma and that
said membership was certified on January 10, 2017 by the
United States Department of the Interior Bureau of Indian
Affairs and on January 20, 2017 by the Choctaw Nation of
Mother attached to her motion for new trial copies of each
child's documentation of Certificate of Degree of Indian
Blood, dated January 10, 2017, from the United States
Department of Interior Bureau of Indian Affairs (BIA), which
indicated each child "is 1/8 degree Indian blood of the
Choctaw Tribe." Mother also attached copies of a Choctaw
Nation membership card for each child stating each child
"is 1/8 Choctaw and is a member by blood of the Choctaw
Nation of Oklahoma." Each card also stated, "Date
The motion for new trial noted, "That Mother testified
at trial as to her diligent effort to enroll the children
with the tribe and to obtain proof of enrollment prior to
trial but that the evidence of enrollment was not and could
not have been discovered until after the jury rendered its
verdict." She asserted, "That because the children
were enrolled members of an Indian Tribe prior to and at the
time of trial, all proceedings, including the trial, were
subject to the Indian Child Welfare Act 25 U.S.C. 1901 et
seq. and Oklahoma Indian Child Welfare Act 10 O.S. § 40
et seq." She further asserted:
That no notice of the proceedings was given to the Tribe, no
expert witness testimony was presented, and the State
proceeded under an improper burden of proof at trial all in
violation of the requirements of ICWA and OICWA and such
violation materially affected substantial rights of the
Mother, prevented her from having a fair trial and
constitutes an error requiring a new trial.
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.
The trial court denied the motion for new trial, and Mother
"A motion for new trial is addressed to the sound
discretion of the trial court. Unless it is apparent that the
trial court erred in some pure question of law or acted
arbitrarily the ruling will not be disturbed on appeal."
Barringer v. Baptist Healthcare of Oklahoma, 2001 OK
29, ¶ 5, 22 P.3d 695. "ICWA's applicability is
a question of law. The standard of ...