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.
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.