Nielson v. Ketchum
640 F.3d 1117
| 10th Cir. | 2011Background
- Nielson, age 17 at birth of C.D.K., relinquished parental rights and consented to adoption by the Ketchums the day after birth in Utah; Utah court accepted relinquishment and finalized adoption in May 2008.
- Cherokee Nation intervened; district court later ruled C.D.K. was an Indian child under ICWA due to Citizenship Act-based automatic Cherokee citizenship, voiding relinquishment under ICWA §1914.
- District court held Citizenship Act made C.D.K. a direct descendant of an original enrollee, thereby an Indian child for ICWA purposes.
- Ketchums appealed the district court’s partial summary judgment; issue centered on whether C.D.K. was an Indian child at the relinquishment/adoption time.
- Court ultimately held that C.D.K. was not an Indian child for ICWA purposes because Citizenship Act citizenship cannot render a nonmember child an ICWA-protected Indian child.
- The appeal proceeds to determine proper application of ICWA safeguards and remands for proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether C.D.K. was an Indian child at relinquishment. | Nielson/Cherokee Nation: direct descendant status under Citizenship Act made C.D.K. an Indian child. | Ketchums: Citizenship Act does not render nonmembers ICWA-protected. | No; not an Indian child under ICWA. |
| Whether Citizenship Act can declare Cherokee citizenship for ICWA purposes. | Citizenship Act validly creates temporary Cherokee citizenship for C.D.K., triggering ICWA protections. | Temporary citizenship cannot satisfy ICWA’s “member” requirement. | No; Citizenship Act does not bring C.D.K. within ICWA’s definition of Indian child. |
| Whether ICWA applies to the relinquishment/adoption proceedings at issue. | ICWA protections should apply if C.D.K. was an Indian child. | ICWA does not apply if the child is not an Indian child under §1903(4). | ICWA did not apply; district court erred in treating proceedings as ICWA-governed. |
| Proper disposition on appeal given ICWA non-application. | Vacate adoption or return child if ICWA applies. | No ICWA basis to order return; jurisdiction limited. | Reverse district court and remand for proceedings consistent with ICWA-nonapplicability. |
Key Cases Cited
- Santa Clara Pueblo v. Martinez, 436 U.S. 49 (U.S. 1978) (tribal membership and citizenship issues central to tribe’s sovereignty)
- Ordinance 59 Ass'n v. U.S. Dep't of Interior Sec'y., 163 F.3d 1150 (10th Cir. 1998) (tribal membership determinations generally respect tribal sovereignty but not to expand ICWA reach)
- Vann v. Kempthorne, 534 F.3d 741 (D.C. Cir. 2008) (Dawes Rolls and original enrollee lineage used to prove descendant status)
- Harman v. Pollock, 586 F.3d 1254 (10th Cir. 2009) (summary judgment standard application in ICWA-related issues)