The Cherokee Nation and one of its members are asking the U.S. Supreme Court to review a U.S. 10th Circuit Court of Appeals’ ruling last April that the Indian Child Welfare Act (ICWA) did not apply to what a three-judge panel termed “temporary” tribal citizenship conferred solely for ICWA purposes.
Britney Jane Little Dove Nielson, 17 when the case began in 2007, relinquished parental rights and consented to the adoption of newborn C.D.K.
Nielson, who later became a Cherokee Nation citizen, sought to have the relinquishment invalidated and she appealed its denial to the 10th Circuit.
The Cherokee Nation intervened on her behalf, arguing that C.D.K. was an Indian child under ICWA because of a section in its Citizenship Act which provides that every newborn “who is a direct descendant of an original enrollee shall be automatically admitted as a citizen of the Cherokee Nation for a period of 240 days following the birth of the child.”
If C.D.K. is an “Indian child” in the ICWA context the relinquishment of parental rights would be invalidated, but if he is not an Indian child, ICWA does not apply, the federal appeals court said.
The court acknowledged tribes “have exclusive authority on membership determinations for tribal purposes,” but charged that the Cherokee Nation was trying to expand federal law.
The ICWA definition of “Indian child” applies to an unmarried person under age 18 who is a tribal member, but C.D.K. was an Indian child only if he was a member of the Cherokee Nation at relinquishment, the court said.
ICWA does not apply to the 240-day citizenship awarded by Cherokee law, the court said, citing “gamesmanship” on the part of tribes if they authorize temporary citizenship on a “nonconsenting” person to invoke ICWA protection.