Utah Court Rules Indian Child Welfare Act Doesn’t Apply in Boy’s Adoption UPDATED
This case involves interpretation of the Indian Child Welfare Act (ICWA). Before explaining this story, it is important to understand who is supposed to be involved in the adoption decision-making of Indian children.
“WHY CAN’T NON-INDIANS ADOPT INDIAN CHILDREN?
They can. Since the 1878 passage of the Indian Child Welfare Act (ICWA), Indian children who are put up for adoption are under protection of the tribal court of their tribe. This protection allows the child to know its Indian heritage and participate in any benefits accruing to it as a tribal citizen. The ICWA was a result of the wholesale adoption of Indian children and the loss of all their tribal rights. Adoptions also often meant that tribes lost touch with their citizens and many adopted children searched to no avail when they sought their roots. Under the ICWA, the tribal court is involved in all adoptions whether in tribal court or in state court. Preference is given to Indian adoptees but non-Indian adoptees are allowed.”
http://www.tribalgov.pdx.edu/pdfs/tribal_rights_handbook.pdf
In 2007, Britney Jane Little Dove Nielson relinquished her parental rights to her newborn son one day after birth. ” In that proceeding, a Utah judge ruled the baby’s grandmother was a registered 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″ when the child was adopted by Joshua and Sunny Ketchum.
Though the lower court appeal DID say that the adoption had to follow ICWA, this latest ruling by “[t]he 10th Circuit Court of Appeals ruled Tuesday 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.”
The Lawsuit
“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.
Court rules Indian Child Welfare Act doesn’t apply in boy’s adoption
[The Salt Lake Tribune 4/7/11 by Brooke Adams]
Appellant’s Brief (December 8, 2009) can be read here.
Appellee’s Brief (January 7, 2010) can be read here.
April 5, 2011 decision can be read here.
Note: The Appellee’s 2010 Brief pdf pages 8-17 explains the intricacies of Cherokee Nation Citizenship Act, Cherokee Nation Constitution, the rights of the Cherokee’s to determine their membership and how the US Constitution (doesn’t) relate to internal issues of the Cherokee Nation. The Ketchums’ argue several points by referring to the US Constitution.
Update: On Monday, May 21, 2012, The US Supreme Court has decided not to take the case.
“Utah attorney James B. Hanks, who represented the couple that adopted the child, said in an email response on Monday that the Supreme Court decision on Monday ended the case.
The Cherokee Nation declined comment on Monday.”
[The Oklahoman 5/22/12 by Chris Casteel]
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