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Thursday, April 7, 2011

Court rules Indian Child Welfare Act doesn’t apply in Cherokee boy’s adoption

Complicated Utah case involves Cherokee Nation
By Brooke Adams [The Salt Lake Tribune April 6, 2011]

The 10th Circuit Court of Appeals ruled Tuesday (April 5) that a lower court erred when it determined parental rights were improperly terminated in an adoption proceeding involving a child who was later identified as a member of the Cherokee Nation.

Britney Jane Little Dove Nielson relinquished her parental rights in 2007, a day after giving birth to a boy who was adopted by Joshua and Sunny Ketchum. In that proceeding, a Utah judge ruled the baby’s grandmother was a registered (enrolled) member of the Cherokee Nation, but Nielson was not and the adoption did not need to abide by the Indian Child Welfare Act. The adoption became final in May 2008.

In June 2008, Nielson filed a lawsuit in U.S. District Court alleging the adoption was invalid under the act, which imposes a 10-day waiting period before parental rights involving an “Indian” child can be terminated. Nielson also argued the baby qualified as a member of the Cherokee Nation because his grandmother is an enrolled member of the tribe and, under a Cherokee Nation law, every newborn who is a direct descendant of such members receives temporary citizenship.

In a 2009 ruling, the district court judge agreed and ruled the termination of Nielson’s parental rights was invalid. The judge left the adoption decree intact, however, and said a state court would have to sort out the baby’s custody.

Nielson filed a lawsuit in state court seeking return of her child and, when that judge ruled the statute of limitations barred the action, appealed. The case is now pending in the Utah Supreme Court.

Meanwhile, the Ketchums (adoptive parents) appealed the district court decision to the 10th Circuit.

The appeals court said in its newly released opinion that Nielson’s child is a direct descendant of a Cherokee Nation enrollee. But it found that the type of temporary citizenship bestowed by Cherokee Nation law does not apply for Indian Child Welfare Act purposes. The act only covers full members, the court said, not those with temporary status.

“We find that Congress did not intend the ICWA to authorize this sort of gamesmanship on the part of a tribe [authorizing] a temporary and nonjurisdictional citizenship upon a nonconsenting person,” the court said. “The tribe cannot expand the reach of a federal statute by a tribal provision that extends automatic citizenship to the child of a nonmember of the tribe.”

Because of that, ICWA and its 10-day waiting period did not apply, the court said. It remanded the case back to district court.

Nielson’s options now include asking the full bank of 10th Circuit judges to reconsider the case or appealing the decision to the U.S. Supreme Court.

James B. Hanks, who represents the Ketchums, said that barring an appeal, his clients will ask the district court to dismiss the case. “They are thrilled,” he said of the Ketchums. “They’ve been on pins and needles for a long time now. It is a wonderful day for them.”

The Tribune was not able to reach attorneys for Nielson or the Cherokee Nation on Tuesday.


[Reading this in 2011 is astonishing...Native children are still lost to the system of adoption and then courts, not tribes, give rulings in favor of adoptive parents over biological parents. Why was this child's mother not enrolled? Probably because she is an urban Indian and not on the Cherokee reservation, so apparently her son is not enrolled either - what is wrong with this picture?   Bottom line: ICWA is really not working as it was enacted in 1978. The article doesn't say the Ketchums are Mormons... Trace]
UPDATE: She did, however, state that they were considering enrolling Nielson in the next few
months, and Nielson in fact became an enrolled member of the Cherokee Nation on August 5, 2008.
http://www.ca10.uscourts.gov/opinions/09/09-4113.pdf

ICWA states: When an Indian child is placed for adoption, the ICWA requires that, in the absence of good cause to deviate, the child should be placed with: (1) a member of his or her extended family, (2) other members of his or her tribe, or (3) other Indian families.

2 comments:

  1. Wow the Courts did the Right thing. This is not an attack on the Indian Welfare act. This gives a solid definition for what the Cherokee Nation can do for it's members. If the Mother was a Member of the Tribe, she would have had 10 more days, and even UTAH courts asked about this. She was Not a member at the time of the adoption and was even asked about her Indian status. The Mother after 8 months realized she could get Membership of the Tribe because her Grandfather was a registered Member and take advantage of a "Loophole". They were trying to take the ICWA intent a stretch to far. The Law's of the Cherokee are not hurt in this ruling. They need to make all tribe members aware that in order for Adoptions to take place and have FEDERAL Cherokee protection, the Mother Needs to be a Member of the tribe. Not register 8 months after the Baby is born. The courts did the right thing for the Child who is only The 1/16 or 1/8th Cherokee.
    Jason OK city

    ReplyDelete
  2. The child will be raised by 2 loving parents. He will have many family members to love him as well. He will also be given the opportunity to know and learn more about his heritage. This is the best possible outcome for this little boy.

    ReplyDelete

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Indian Country is under attack. Native tribes and people are fighting hard for justice. There is need for legal assistance across Indian Country, and NARF is doing as much as we can. With your help, we have fought for 48 years and we continue to fight.

It is hard to understand the extent of the attacks on Indian Country. We are sending a short series of emails this month with a few examples of attacks that are happening across Indian Country and how we are standing firm for justice.

Today, we look at recent effort to undo laws put in place to protect Native American children and families. All children deserve to be raised by loving families and communities. In the 1970s, Congress realized that state agencies and courts were disproportionately removing American Indian and Alaska Native children from their families. Often these devastating removals were due to an inability or unwillingness to understand Native cultures, where family is defined broadly and raising children is a shared responsibility. To stop these destructive practices, Congress passed the Indian Child Welfare Act (ICWA).

After forty years, ICWA has proven to be largely successful and many states have passed their own ICWAs. This success, however, is now being challenged by large, well-financed opponents who are actively and aggressively seeking to undermine ICWA’s protections for Native children. We are seeing lawsuits across the United States that challenge ICWA’s protections. NARF is working with partners to defend the rights of Native children and families.

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where were you adopted?

where were you adopted?

To Veronica Brown

Veronica, we adult adoptees are thinking of you today and every day. We will be here when you need us. Your journey in the adopted life has begun, nothing can revoke that now, the damage cannot be undone. Be courageous, you have what no adoptee before you has had; a strong group of adult adoptees who know your story, who are behind you and will always be so.