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Nielson v Ketchum

Case No. 09-4113 (C.A. 10, April 5, 2011)

This case concerns the application of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963, which, among other things, imposes a period of ten days before a parent can consent to the termination of her parenting rights over an “Indian child.” The day after giving birth to C.D.K., Petitioner-Appellee Britney Jane Little Dove Nielson appeared in state court in Utah to relinquish her parenting rights and consent to the adoption of her son by Respondents-Appellants Sunny and Joshua Ketchum. The court determined that although Nielson’s mother was a registered member of the Cherokee Nation, Nielson was not, and consequently the court approved the adoption without applying the procedural safeguards of the ICWA.

Later, Nielson filed suit in federal district court, claiming that C.D.K. was an Indian child at the time of the adoption and hence the ICWA’s ten-day waiting period should have applied. Even though she was not herself a member of the Cherokee Nation, Nielson pointed to a law passed by the Cherokee Nation establishing automatic temporary Cherokee citizenship for any newborn who is the direct descendant of a Cherokee listed on the Dawes Commission Rolls. The district court agreed that this act established tribal citizenship for C.D.K., and it invalidated Nielson’s relinquishment of parental rights, leaving the matter of custody of C.D.K. for the Utah state courts. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and reverse on the grounds that C.D.K. was not a member of the Cherokee Nation for ICWA purposes at the time of the adoption.
I. Background


On November 5, 2007, Nielson, who was seventeen at the time, gave birth to C.D.K. The very next day, Nielson, accompanied by her mother, appeared in state court in Utah and (a) relinquished her parenting rights and (b) consented to the adoption of the child by Joshua and Sunny Ketchum, in accordance with Utah law. See Utah Code Ann. § 78B-6-125(1) (“A birth mother may not consent to the adoption of her child or relinquish control or custody of her child until at least 24 hours after the birth of her child.”). The Ketchums were also present and were represented by counsel; the court informed Nielson of her right to be represented by counsel, but Nielson stated that she did not wish to retain counsel.

At the hearing, Nielson’s mother stated that she (C.D.K.’s grandmother) was enrolled in a tribe, but that she had never enrolled her children, including Nielson. No one at the hearing specifically inquired as to whether the newborn was a member of an Indian tribe. Nielson testified that she had only an eighth-grade education and stated that although she was not currently on any medications because she had just given birth, she normally does take medication for depression and bipolar disorder. She also stated that she understood that by relinquishing her parenting rights, she would not be allowed to later change her mind, and she signed a consent and relinquishment form and agreed to the adoption of C.D.K. by the Ketchums. The state court judge accepted the relinquishment, awarded temporary custody to the Ketchums, and the adoption was finalized in May 2008.
 

 

Judge(s): David Ebel
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Circuit Court Judge(s)
David Ebel
Harris Hartz
Deanell Tacha

 
Intervenors Lawyer(s) Intervenors Law Firm(s)
Chrissi Nimmo Office of the Oklahoma Attorney General

 
Appellant Lawyer(s) Appellant Law Firm(s)
James Hanks Hanks & Mortensen PC

 
Appellee Lawyer(s) Appellee Law Firm(s)
Calvin Hatch Tsosie & Hatch LLC
Taralyn Jones Tsosie & Hatch LLC

 

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limited membership for those children who were eligible for membership because they relinquish control or custody of her child until at least 24 hours after the birth of her ground that nielson's consent was obtained through fraud and duress. see 25 u.s.c. where the case is still pending.5 included c.d.k. within its terms. specifically, an earlier draft of the icwa did not parental rights, leaving the matter of custody of c.d.k. for the utah state courts. we nielson's motion for summary judgment under 1913(d)--which would have required required to do in considering a summary judgment motion. see harman v. pollock, 586 adoption and thus protected by the icwa. accordingly, she argues, because the icwa indian tribe. nielson testified that she had only an eighth-grade education and stated that enough indirect evidence so as to conclude "that no reasonable factfinder could conclude the time of his adoption and thus an "indian child" subject to the protections of the no notwithstanding any provisions of this title to the contrary, every newborn cherokee nation, parent."). nielson has not appealed this determination. has long been recognized as central to its existence as an independent political finalized in may 2008. and (b) if the citizenship act can permissibly extend citizenship to c.d.k. in the icwa on june 25, 2008, nielson filed a petition in the u.s. district court for the district preserve, and advance the integrity of indian families" by providing for procedural and have not raised any issues from that order and instead argue solely that the district court authorize this sort of gamesmanship on the part of a tribe--e.g. to authorize a temporary not consider them here."). later change her mind, and she signed a consent and relinquishment form and agreed to applying the procedural safeguards of the icwa. u.s.c. 1901-1963, which, among other things, imposes a period of ten days before a was at an end--it had invalidated nielson's relinquishment of her parental rights, and as parental rights must be invalidated, as the district court concluded; if he is not, then the fraud or duress--that section of the icwa could not support jurisdiction to order ("any consent [to termination of parental rights] given prior to, or within ten days after, shall be automatically admitted as a citizen of the cherokee nation for a period of 240 britney jane little dove could not grant c.d.k. citizenship for icwa purposes. we agree. clerk of court tribal citizenship or other documentation need be submitted or delivered to favor of nielson. "we review summary judgment decisions de novo, applying the same and so the record filing this application, as she claimed at the relinquishment hearing. child by joshua and sunny ketchum, in accordance with utah law. see utah code ann. filed 7 we reverse the district court's grant of partial summary judgment in favor of time of the adoption, and no information has been provided about c.d.k.'s father, so no u.s.c. 1914 (permitting courts to invalidate a termination of parental rights when the ii. discussion order the return of the child. the court thus concluded that its involvement in the case the registrar as a prerequisite to the temporary tribal citizenship of a child tenth circuit evidence has been presented from which we could conclude that c.d.k. is "the biological the relinquishment of parental rights--it also denied nielson's motion for summary 2010) (quotations omitted). thus, we will affirm a grant of summary judgment "if the 2 days following the birth of the child." (app. at 340.) accordingly, the citizenship act eligible for membership in a federally recognized tribe. but the final draft of the statute c.d.k. the utah state court determined that the statute of limitations barred the action relinquishment, awarded temporary custody to the ketchums, and the adoption was (app. at 463.) the dawes commission was established in 1896 to, among other things, relinquishment hearing and adoption proceedings. the district court's conclusion that because he was a member of an indian tribe at the time of the relinquishment hearing, so one at the hearing specifically inquired as to whether the newborn was a member of an the district court agreed. on june 3, 2009, the district court concluded that was not a member of the cherokee nation for icwa purposes at the time of the 9 temporary cherokee citizenship for any newborn who is the direct descendant of a invalidated nielson's termination of her parental rights over c.d.k., pursuant to 25 for the district of utah numbers for nielson's great-great grandparents. the record also contains a certificate of based on the definition of "indian child" provided in the icwa, we conclude that for reference to the dawes commission rolls to prove membership in the cherokee cherokee nation . . . ." (app. at 464.) the ketchums argue that the district court did not the record thus demonstrates that nielson--as well as her mother--is a direct the icwa did not provide any basis on which the court could order the return of the cong. rec. s37223 (1977) (emphasis added).) under this rejected definition, c.d.k. granted nielson's motion for summary judgment pursuant to 1914--thus invalidating on november 5, 2007, nielson, who was seventeen at the time, gave birth to issued to nielson by the united states department of the interior, which lists dawes roll 4 taralyn a. jones (calvin m. hatch with her on the brief) of tsosie & hatch, llc, west under age eighteen and is . . . a member of an indian tribe . . . ."). the ketchums appeal from the united states district court c.d.k. the very next day, nielson, accompanied by her mother, appeared in state court this case thus turns on whether c.d.k. is an "indian child" within the meaning of tribe purposes, the type of citizenship provided by the citizenship act does not make the any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and ------------------------------ c.d.k.'s birth, which, if he is an indian child, violates 1913. see 25 u.s.c. 1913(a) in utah and (a) relinquished her parenting rights and (b) consented to the adoption of the had a parent who is a member. 8 automatically from and after the birth of the child for all purposes although by reference to the dawes commission rolls . . . .").) james b. hanks of hanks & mortensen, p.c., salt lake city, utah for respondents- "must be original enrollees or descendants of original enrollees." (app. at 292 (emphasis 5 publish including a "member of an indian tribe" does not include the type of temporary provides that "every newborn child who is a direct descendant of an original enrollee within the contemplation of congress when it applied the icwa to children who are 11 the ketchums' motion to stay execution of the judgment pending appeal, and dismissed before hartz, tacha, and ebel, circuit judges. iii. conclusion c.d.k.'s return to nielson's custody. the court stated, and the parties agreed, that the constitutions, which was provided to the voters who adopted the 2003 constitution and who is eligible for membership in a federally recognized indian tribe." (app. at 414 (123 who is a member because "tribes . . . have exclusive authority on membership in order for the citizenship act's automatic citizenship provision to apply, nielson conclusion that he is a direct descendant of an original enrollee. the current constitution procedural requirements were not followed when she consented to the termination of her in the meantime, nielson filed a motion in state court seeking return of custody of the name of the child is not entered on the cherokee register. 6 the ketchums filed a notice of appeal (appeal no. 09-4113) regarding the court's legal standard as the district court." willis v. bender, 596 f.3d 1244, 1253 (10th cir. although she was not currently on any medications because she had just given birth, she jordan, utah for petitioner-appellee. indian child at the time of the adoption and hence the icwa's ten-day waiting period intervenor appellee. june 3 order finding that c.d.k. is an indian child and invalidating nielson's 240 days unless the child applies for citizenship. (id. 11a(c).) based on the of the icwa, "`indian child' means any unmarried person who is under age eighteen and the committee are reviewable by tribal courts. for intervenor-appellee. august 5, 2008. enrollees. this conclusion is corroborated by a certificate of degree of indian blood c.d.k. and nonjurisdictional citizenship upon a nonconsenting person in order to invoke icwa 78b-6-125(1) ("a birth mother may not consent to the adoption of her child or those proceedings had to comply with the icwa was in error. community."). in this context, however, the cherokee nation does not seek to define an "original enrollee" is someone who was listed on the dawes commission rolls. child a "member" within the meaning of the icwa. the icwa explicitly defines bring temporary members under the protection of the icwa, but the citizenship act's the icwa at the time of his adoption, pursuant to chapter 2, section 11a of the parent can consent to the termination of her parenting rights over an "indian child." the considered, but ultimately rejected, an expansive definition of "indian child" that was appeared in state court in utah to relinquish her parenting rights and consent to the icwa does not apply and the district court's judgment must be reversed. for purposes be a descendant of dawes enrollees as well. 15 citizens for 240 days following their birth, the icwa does not apply to this sort of "for the specific purpose of protecting the rights of the cherokee nation under the ] shall be and prevented the court from invalidating the adoption. nielson appealed, and the utah 1913(d) ("upon a finding that such consent [to the adoption] was obtained through descendant of dawes enrollees. c.d.k., who is a descendant of nielson, must therefore accordingly, because the adoption process did not accord with the icwa the court 1 appellate brief or at oral argument constitutes waiver, even when the appellant lists the time of the relinquishment hearing if (a) he is a direct descendant of an original enrollee, the ketchums appeal the district court's partial grant of summary judgment in judgment as a matter of law." fed. r. civ. p. 56(c)(2) (amended dec. 2010). 25 u.s.c. 1914 provides that rights, adoptions, and foster care placement involving indian children." felix cohen, erred by invalidating nielson's relinquishment of parental rights. any issue related to the citizenship act does not bring c.d.k. within the definition of "indian child" under the and the cherokee nation argued that c.d.k. was an "indian child" within the meaning of [a]ny indian child who is the subject of any action for . . . termination of nation must be original enrollees or descendants of original enrollees listed on the dawes based on the citizenship act, an indian child within the meaning of the icwa. judgment seeking vacature of the adoption proceedings under 25 u.s.c. 1913(d) on the day after giving birth to c.d.k., petitioner-appellee britney jane little dove nielson nielson, respondents-appellants, purposes of a federal statute. three days later, on june 18, 2009, the district court concluded that it lacked operated to make c.d.k. an indian child subject to the protections of the icwa at the [icwa]." (app. at 340.) section 11a(b) provides as follows: the court to order a return of the child if the adoption decree had been vacated due to extends automatic citizenship to the child of a nonmember of the tribe. c.d.k. was thus an indian child at the time of the relinquishment hearing if, and ketchum, "indian child" as "any unmarried person who is under age eighteen and is . . . a member it is unclear whether nielson's mother was a registered member of the tribe prior to define "indian child," but rather defined "indian" as "any person who is a member of or we are interpreting the icwa, a federal statute, and conclude only that the of the cherokee nation, adopted in 2003, provides that "[a]ll citizens of the cherokee elisabeth a. shumaker membership only for tribal purposes, but also seeks to define membership for the (id. (emphasis, footnote added).) the temporary citizenship automatically expires after tribe and is the biological child of a member of an indian tribe." 25 u.s.c. 1903(4). this case concerns the application of the indian child welfare act (icwa), 25 commission rolls." (app. at 292.) the prior constitution, enacted in 1976, also called b. applicability of the citizenship act to declare cherokee citizenship on court of appeals certified the case for immediate transfer to the utah supreme court, issue in the notice of appeal" (citation omitted)). eligibility of applicants to see if they qualify for cherokee citizenship. the decisions of without prejudice the ketchums' counterclaim for expenses incurred while raising that c.d.k. had ancestors who were original enrollees. nevertheless, the court found assuming, without deciding, that the tribe possessed the authority to declare that court could not order return of custody unless the petitioner complied with 1916, which vacated. here, there was no vacature, and so the court had no statutory basis on which to 5 appellees contend that this court cannot interfere with the tribe's determination of c.d.k. that "c.d.k. should have been returned to nielson's custody." (nielson br. at 34.) argument--so it appears that no decision in this case will be forthcoming soon. enrolled in a tribe, but that she had never enrolled her children, including nielson.1 nielson, and remand for proceedings consistent with this opinion. at the time of the relinquishment hearing. as mentioned above, the citizenship act we agree with the district court that, although the evidence of c.d.k.'s ancestry which is in the record. she did, however, state that they were considering enrolling nielson in the next few child."). the ketchums were also present and were represented by counsel; the court n.2 (10th cir. 1995) (noting in parenthetical, that a "failure to argue an issue in the after c.d.k.'s birth, see 25 u.s.c. 1913(a)--the termination was invalid. see 25 7 did not file a cross-appeal on the additional issues decided by the district court, we do she understood that by relinquishing her parenting rights, she would not be allowed to 10 that provides for temporary membership, let alone that such a temporary membership was nation, nielson was not, and consequently the court approved the adoption without established tribal citizenship for c.d.k., and it invalidated nielson's relinquishment of u.s. 49, 72 n.32 (1978) ("a tribe's right to define its own membership for tribal purposes parental rights under state law. . . and the indian child's tribe may petition ebel, circuit judge. 14 nation.7 nos. 09-4113, 09-4129 163 f.3d 1150, 1153 n.3 (10th cir. 1998); see also santa clara pueblo v. martinez, 436 c.d.k. was a direct descendant of an original enrollee of the cherokee nation, and thus, create membership rolls for the cherokee nation. see vann v. kempthorne, 534 f.3d c.d.k. because it is undisputed that nielson was not a member of an indian tribe at the subparagraph (b) is not at issue.6 of an indian tribe." 25 u.s.c. 1903(4) (emphasis added). while the citizenship act under this section. such temporary tribal citizenship shall be effective icwa. the tribe cannot expand the reach of a federal statute by a tribal provision that according to the citizenship act, c.d.k. was a citizen of the cherokee nation at april 5, 2011 pleadings, the discovery and disclosure materials on file, and any affidavits show that the record contains approved applications for citizenship in the cherokee nation only if, he was a member of the cherokee nation at that time. further, c.d.k. was a a. whether c.d.k. is a direct descendant of an original enrollee there is no genuine issue as to any material fact and that the movant is entitled to jurisdiction to order c.d.k.'s return to nielson's custody. because the court denied must prove that c.d.k. was "a direct descendant of an original enrollee." the district challenge whether the citizenship act can apply at all in this situation, arguing that it 2 membership provided in the citizenship act. the offspring of a nonmember is a citizen without the nonmember's consent for internal violates congress' intent. the legislative history of the icwa shows that congress not wish to retain counsel. numbers for these ancestors. appellants. was not clearly presented in the district court, the record nevertheless compels the parental rights--specifically, nielson relinquished her parenting rights less than ten days comparable to the definition employed in the citizenship act and that would have the cherokee nation subsequently intervened on nielson's behalf. both nielson child of a member of an indian tribe." 25 u.s.c. 1903(4)(b). ketchums' motion for summary judgment. 240 days following the birth of the child. no request or application for child, it now fell to the state courts to determine the child's fate. the court also denied the 1976 constitution is printed verbatim in a document comparing the 1976 and 2003 less than two weeks later, on june 15, 2009, the court clarified that while it she does argue, however, on pages 31-34 of her brief, that the district court erred and constitution, in order for those applications to be approved, nielson and her mother from her family. id. icwa. see 25 u.s.c. 1903(4) ("`indian child' means any unmarried person who is i. background member of the cherokee nation at that time only if the citizenship act applied to c.d.k. peterson v. jensen, 371 f.3d 1199, 1201 n.2 (10th cir. 2004) ("because the [appellees] scheme to prevent states from improperly removing indian children from their parents, purposes, and so the procedural safeguards provided for in the icwa did not apply to the according to the cherokee constitution, a registration committee considers the 6 adoption of her son by respondents-appellants sunny and joshua ketchum. the court protections. therefore, we conclude that 1903(4)(a)'s definition of an indian child as is either (a) a member of an indian tribe or (b) is eligible for membership in an indian nielson has not filed any cross-appeal.4 that c.d.k. is anything other than a direct descendant of an original enrollee of the the adoption of c.d.k. by the ketchums. the state court judge accepted the normally does take medication for depression and bipolar disorder. she also stated that court admonished appellees for not providing documentary evidence that clearly showed 12 temporary membership. appellees have not identified any other law by any other tribe 3 the ketchums also filed an appeal of the june 18 order (appeal no. 09-4127), but they 9 1914 of the icwa. the icwa "regulates proceedings for termination of parental 3 for both nielson and her mother, filed in may 2008.8 8 child who is a direct descendant of an original enrollee[2 "member[s]" of indian tribes. we find that congress did not intend the icwa to exercise jurisdiction pursuant to 28 u.s.c. 1291 and reverse on the grounds that c.d.k. informed nielson of her right to be represented by counsel, but nielson stated that she did later, nielson filed suit in federal district court, claiming that c.d.k. was an 1913 of this title. determined that although nielson's mother was a registered member of the cherokee 13 draw every reasonable inference in their favor in reaching this conclusion, as the court is (d.c. no. 2:08-cv-00490-ts) under the terms of the 2003 added).) the registration committee approved their applications, 9 because she has not filed an appeal in this matter, that issue is not before this court. see nielson and the cherokee nation have only ever argued that c.d.k. is an indian child 4 cherokee listed on the dawes commission rolls. the district court agreed that this act allows the federal district court to order return of the child only if the adoption decree is cherokee nation citizenship act ("citizenship act"). the citizenship act was adopted determinations for tribal purposes." ordinance 59 ass'n v. u.s. dep't of interior sec'y, substantive safeguards that limit the ability of the state courts to remove an indian child broad definition of citizenship--even if it was full citizenship as opposed to temporary-- handbook of federal indian law 11.01[1], at 820 (2005 ed.). the icwa provides u.s.c. 1914. the court thus granted nielson partial summary judgment and denied the birth of the indian child shall not be valid."). extended families, and tribes." id. the "overriding purpose [of the icwa] is to protect, 741, 744 (d.c. cir. 2008) (citing act of june 10, 1896, ch. 398, 29 stat. 321, 339). chrissi r. nimmo, assistant attorney general, cherokee nation, tahlequah, oklahoma citizenship act, nielson claimed that c.d.k. was an indian child at the time of his permits only the conclusion that nielson and her mother must be descendants of original context. we address these issues in turn. f.3d 1254, 1268 (10th cir. 2009), cert denied, 131 s.ct. 73 (2010). should have applied. even though she was not herself a member of the cherokee nation, petitioner-appellee, june 18 order is therefore waived. see thomas v. int'l bus. machs., 48 f.3d 478, 482 tenth circuit rights to the indian child, the child's parents, and the child's tribe, and creates "a statutory degree of indian blood issued to nielson's grandfather which also shows the dawes roll united states court of appeals v. not only does the temporary membership provision of the citizenship act fail to relinquishment of her parental rights.3 adoption. automatically admitted as a citizen of the cherokee nation for a period of fraud or duress, the court shall vacate [the adoption] decree and return the child to the months, and nielson in fact became an enrolled member of the cherokee nation on of utah asking that her voluntary termination of parental rights be invalidated pursuant to nielson pointed to a law passed by the cherokee nation establishing automatic at the hearing, nielson's mother stated that she (c.d.k.'s grandmother) was in any event, subparagraph (b) could not apply to bestow "indian child" status to (app. at 217 ("all members of the cherokee nation must be citizens as proven purports to make newborns who are directly descended from dawes enrollees temporary united states court of appeals c.d.k. was not an "indian child" at the time of the adoption proceedings for icwa sunny ketchum; joshua on july 29, 2010, the utah supreme court granted a motion to continue oral would have been an indian child even without the citizenship act because he was the parties do not dispute that nielson relinquished her parental rights within ten days of procedural requirements of the icwa are not complied with). the icwa--if he is, then the icwa applies and nielson's voluntary termination of


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