Supreme Court Approached on ICWA Issue

Supreme Court Approached on ICWA Issue

Carol Berry
12/10/11

The Cherokee Nation and one of its members have asked the U.S. Supreme Court to decide issues raised by a ruling of the U.S. 10th Circuit Court of Appeals that disputed the right of tribes to define tribal membership in Indian Child Welfare Act (ICWA) cases.

Specifically, the high court will be asked to consider whether a federally recognized Indian tribe’s membership criteria determine whether a child is a “member” of that tribe for ICWA purposes.

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 (ICWA) statute, a three-judge panel of the 10th Circuit ruled last April.

The current petitioners charge that the federal appeals court erred in distinguishing between membership for tribal and federal statutory purposes, because “tribal membership is bound up in the tribe’s sovereign self-determination—as it is in ICWA, where the statutory focus on tribal membership is designed to ‘promote the safety and security of Indian tribes.’”

The issues arose when, in 2007, Britney Jane Little Dove Nielson, then 17, relinquished her parenting rights for her day-old son, C.D.K. and consented to his adoption, but later sought a District Court ruling to invalidate the relinquishment, citing ICWA safeguards against removing Indian children from their families. Nielson herself became a Cherokee tribal member within the next year.

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 also argued that the termination 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

A subsequent appeal to the 10th Circuit turned on “whether C.D.K. is an ‘Indian child’ within the meaning of ICWA,” the court said, noting that 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 federal appeals 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 Nation 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.”

Petitioners to the Supreme Court disagree with the “gamesmanship” argument that “a child may not be a ‘member’ of a tribe for ICWA purposes even though he or she is a member for internal tribal purposes,” because the distinction would undermine fundamental purposes of tribal sovereignty.

In BIA guidelines for implementing ICWA, “the determination by a tribe that a child is or is not a member of that tribe…is conclusive,” state the current petitioners, who also charge that the federal appeals court has ignored congressional intent in ICWA “to preserve tribal sovereignty and safeguard Indian children.”

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