Get new posts by email:

How to Use this Blog

BOOZHOO! We've amassed tons of information and important history on this blog since 2010. If you have a keyword, use the search box below. Also check out the reference section above. If you have a question or need help searching, use the contact form at the bottom of the blog.

We want you to use BOOKSHOP! (the editor will earn a small amount of money or commission. (we thank you) (that is our disclaimer statement)

This is a blog. It is not a peer-reviewed journal, not a sponsored publication... WE DO NOT HAVE ADS or earn MONEY from this website. The ideas, news and thoughts posted are sourced… or written by the editor or contributors.

EMAIL ME: (outlook email is gone)


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.

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.


  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

  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.


Please: Share your reaction, your thoughts, and your opinions. Be passionate, be unapologetic. Offensive remarks will not be published. We are getting more and more spam. Comments will be monitored.
Use the comment form at the bottom of this website which is private and sent direct to Trace.

Wilfred Buck Tells The Story Of Mista Muskwa

Happy Visitors!

They Took Us Away

They Took Us Away
click image to see more and read more

Blog Archive

Most READ Posts


You are not alone

You are not alone

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.

Diane Tells His Name

click photo

60s Scoop Survivors Legal Support


Lost Birds on Al Jazeera Fault Lines

Lost Birds on Al Jazeera Fault Lines
click to read and listen about Trace, Diane, Julie and Suzie


As the single largest unregulated industry in the United States, adoption is viewed as a benevolent action that results in the formation of “forever families.”
The truth is that it is a very lucrative business with a known sales pitch. With profits last estimated at over $1.44 billion dollars a year, mothers who consider adoption for their babies need to be very aware that all of this promotion clouds the facts and only though independent research can they get an accurate account of what life might be like for both them and their child after signing the adoption paperwork.


Original Birth Certificate Map in the USA

Why tribes do not recommend the DNA swab

Rebecca Tallbear entitled: “DNA, Blood, and Racializing the Tribe”, bearing out what I only inferred:

Detailed discussion of the Bering Strait theory and other scientific theories about the population of the modern-day Americas is beyond the scope of this essay. However, it should be noted that Indian people have expressed suspicion that DNA analysis is a tool that scientists will use to support theories about the origins of tribal people that contradict tribal oral histories and origin stories. Perhaps more important,the alternative origin stories of scientists are seen as intending to weaken tribal land and other legal claims (and even diminish a history of colonialism?) that are supported in U.S. federal and tribal law. As genetic evidence has already been used to resolve land conflicts in Asian and Eastern European countries, this is not an unfounded fear.

Google Followers