Tribal Law is Limited, Court Rules

DENVER—Tribes may have the exclusive right to determine their membership for tribal purposes, but not if they seek to define membership in order to expand a federal statute, the U.S. 10th Circuit Court of Appeals ruled April 5 as a three-judge panel analyzed issues raised in an Indian Child Welfare Act (ICWA) case.

Britney Jane Little Dove Nielson, then 17, appeared in Utah state court in 2007 the day after she gave birth to a son, C.D.K., relinquished her parenting rights and consented to his adoption by Joshua and Sunny Ketchum, the petition states.

About six months later, she asked the U.S. District Court in Utah to invalidate her relinquishment of parental rights citing ICWA, which is to provide safeguards limiting the ability of state courts to remove Indian children from their families. Though not a Cherokee Nation member at the time, she became an enrolled member Aug. 5, 2008.

The Cherokee Nation intervened on Nielson’s behalf, arguing that C.D.K. was an Indian child under ICWA because of a section of the Cherokee Nation 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.”

Nielson subsequently argued that the relinquishment was invalid because it violated an ICWA provision that imposes a 10-day period before a parent can consent to the termination of parenting rights over an Indian child and the District Court agreed, tossing out the termination.

The case before the 10th Circuit  “turns on whether C.D.K. is an ‘Indian child’ within the meaning of ICWA—if he is, then the ICWA applies and Nielson’s voluntary termination of parental rights must be invalidated, as the District Court concluded; if he is not, then the ICWA does not apply and the District Court’s judgment must be reversed,” the court said.

The ICWA definition of “Indian child” applies to an unmarried person under age 18 who is a tribal member and C.D.K. “was thus an Indian child at the time of the relinquishment hearing if, and only if, he was a member of the Cherokee Nation at that time.”

He was a member if the Citizenship Act applied to him at the time of the hearing as a direct descendant of an original enrollee, which the court accepted, and if the Act could permissibly extend him citizenship in the ICWA context, a conclusion with which the court disagreed.

ICWA does not apply to the 240-day citizenship awarded by the Cherokee Citizenship Act, the court said. “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.”

Although by law tribes “have exclusive authority on membership determinations for tribal purposes,” the Cherokee Nation in this case “does not seek to define membership only for tribal purposes, but also seeks to define membership for the purposes of a federal statute.”

The tribe cannot expand the reach of a federal statute by a tribal provision extending automatic citizenship to the child of a nonmember of the tribe, the federal appeals court said, reversing the lower court’s decision that C.D.K. was an Indian child for ICWA purposes.


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Tribal Law is Limited, Court Rules