Court rebuffs Cherokee Nation in Indian Child Welfare Act ruling

Tuesday, April 5, 2011  

A newborn child who was granted "temporary" citizenship in the Cherokee Nation does not fall under the Indian Child Welfare Act, the 10th Circuit Court of Appeals ruled today.

The mother of the child was not enrolled in the tribe at the time of birth. But under the Cherokee Nation Citizenship Act, a newborn who is a direct descendant of a Cherokee listed on the Dawes Roll is extended temporary citizenship for 240 days.

As a result, the tribe argued that the newborn was an "Indian child" as defined by ICWA. The tribe said it should have been given a chance to intervene in adoption proceedings in Utah.

The 10th Circuit agreed that evidence proved the child is a direct descendant of a Cherokee on the Dawes Roll. The mother was able to enroll in the tribe after the baby's birth, the court noted.

However, the court said "temporary" citizenship isn't enough to make the newborn an "Indian child" for purposes of ICWA. The court said the law requires at least one biological parent to be an enrolled tribal member at the time of birth.

"The ICWA explicitly defines 'Indian child' as 'any unmarried person who is under age eighteen and is . . . a member of an Indian tribe,'" the court said, quoting from the law.

"We find that Congress did not intend the ICWA to authorize this sort of gamesmanship on the part of a tribe—e.g. to authorize a temporary and nonjurisdictional citizenship upon a nonconsenting person in order to invoke ICWA protections," the unanimous decision stated.

"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," the court added.

The child at issue in the case was born in November 2007.

Turtle Talk has posted documents from the case Nielson v. Ketchum.

10th Circuit Decision:
Nielson v. Ketchum (April 5, 2011)