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.
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)|
|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|