Attorney: Mark C. Tilden
Case Update
This is an action to enforce the absolute
and unconditional right of an Indian tribe
to intervene in a child custody
proceeding under the Indian Child
Welfare Act. In the state of Colorado, an
Indian child eligible for membership in
the Osage Nation of Oklahoma was
involved in a child custody proceeding as
defined under the ICWA ยง 1903(1). The
Osage Nation's attorney filed a motion to
intervene under the ICWA. The motion
was conditionally granted; the attorney
for the Osage Nation was required to
comply with the local counsel pro hac
vice rule. Under this rule, an out-of-state
counsel may participate in a Colorado
court proceeding, but is required to
associate with local counsel. As a result,
the Osage Nation's attorney was required
to associate with an attorney admitted to
the Bar in Colorado.
Mark Tilden of the Native American
Rights Fund was retained as local
counsel and filed a motion to reconsider
the order challenging the judge's order.
The motion for reconsideration argued
that the Osage Nation has an absolute
and unconditional federal right to
intervene in the proceeding and that the
local pro hac vice requirements are
preempted by the ICWA. Additionally, pro
hac vice requirements constitute a
burden that would effectively foreclose
many tribes from intervening in out-of-
state ICWA cases because of, among
other things, the cost of hiring local
counsel. He also argued that a tribe has
the right to appear by any representative
of its choosing, including a representative
that is not an attorney.
The court granted the motion to allow the
Osage Nation to appear by any
representative of its choosing and did not
require the Nation's attorney to associate
with local counsel under the pro hac vice
rules. It was a success for the Nation to
appear on its on behalf unencumbered by
state law.
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