Court rebuffs Cherokee Nation in Indian Child Welfare Act case

Cherokee Nation Chief Bill John Baker discusses an Indian Child Welfare Act case that went before the U.S. Supreme Court in 2013. Dusten Brown, in sunglasses, was forced to give up his daughter after the justices ruled against him. Photo from National Congress of American Indians / Flickr

Correction: The comments are due May 19, not March 19, as incorrectly stated in a prior version of this post.

A young girl from the Cherokee Nation will stay with a non-Indian family under a ruling from the Oklahoma Court of Civil Appeals on Friday.

The tribe invoked the Indian Child Welfare Act in order to place the girl, who is under the age of 5, with a Cherokee family. But the court said removing her from the non-Indian home wasn't in her best interests.

“Children who do not have any tribal connection other than biology, oftentimes through distant ancestry, are transferred from stable homes in order to create a tribal connection where none existed before,” the decision stated, The Oklahoman reported. A copy wasn't available online as of Monday morning.

According to the paper, the court criticized the ICWA guidelines that were issued by the Bureau of Indian Affairs in February. The decision said the guidelines -- which do not carry the force of law -- "results in a one-size-fits-all approach to the placement of children with any tribal affiliation," the Oklahoman reported.

Assistant Secretary Kevin Washburn, the head of the Bureau of Indian Affairs. Photo from Twitter

The BIA has since proposed new ICWA regulations that will carry a greater force. Public comments are due May 19.

Native Americans represent 9 percent of the state's population, according to the U.S. Census Bureau. Yet about 30 percent of the children in state care are Native, a spokesperson for the Department of Human Services told the paper.

The spokesperson said the decision “will have a huge impact on how we work with the tribes and how we place children in state custody.”

The Cherokee Nation was involved in Adoptive Couple v. Baby Girl, an ICWA case that went to the U.S. Supreme Court. In June 2013, the justices ruled that ICWA did not apply because no one from the girl's family stepped forward to assert custody.

Dusten Brown, the Cherokee father, was forced to give up his daughter to a non-Indian couple as a result of the decision.

Get the Story:
Oklahoma appeals court rejects Bureau of Indian Affairs child placement guidelines (The Oklahoman 5/2)

Federal Register Notices:
Regulations for State Courts and Agencies in Indian Child Custody Proceedings (March 30, 2015)
Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (February 25, 2015)

Related Stories
Non-Indian adoption group disputes BIA's new ICWA guidelines (03/31)
Updates from National Congress of American Indians winter session (02/25)

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