Nielson v. Ketchum, et al
 Reversed and Remanded. Terminated on the merits after oral hearing. Written, signed, published. Judges Hartz; Tacha; and Ebel, authoring. Mandate to issue. [09-4113, 09-4129]
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United States Court of Appeals
UNITED STATES COURT OF APPEALS
April 5, 2011
Elisabeth A. Shumaker
Clerk of Court
BRITNEY JANE LITTLE DOVE
SUNNY KETCHUM; JOSHUA
Nos. 09-4113, 09-4129
Intervenor – Appellee.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:08-CV-00490-TS)
James B. Hanks of Hanks & Mortensen, P.C., Salt Lake City, Utah for RespondentsAppellants.
Taralyn A. Jones (Calvin M. Hatch with her on the brief) of Tsosie & Hatch, LLC, West
Jordan, Utah for Petitioner-Appellee.
Chrissi R. Nimmo, Assistant Attorney General, Cherokee Nation, Tahlequah, Oklahoma
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Before HARTZ, TACHA, and EBEL, Circuit Judges.
EBEL, Circuit Judge.
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
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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
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. 1 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
She did, however, state that they were considering enrolling Nielson in the next few
months, and Nielson in fact became an enrolled member of the Cherokee Nation on
August 5, 2008.
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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.
On June 25, 2008, Nielson filed a petition in the U.S. District Court for the District
of Utah asking that her voluntary termination of parental rights be invalidated pursuant to
§ 1914 of the ICWA. The ICWA “regulates proceedings for termination of parental
rights, adoptions, and foster care placement involving Indian children.” Felix Cohen,
Handbook of Federal Indian Law § 11.01, at 820 (2005 ed.). The ICWA provides
rights to the Indian child, the child’s parents, and the child’s tribe, and creates “a statutory
scheme to prevent states from improperly removing Indian children from their parents,
extended families, and tribes.” Id. The “overriding purpose [of the ICWA] is to protect,
preserve, and advance the integrity of Indian families” by providing for procedural and
substantive safeguards that limit the ability of the state courts to remove an Indian child
from her family. Id.
The Cherokee Nation subsequently intervened on Nielson’s behalf. Both Nielson
and the Cherokee Nation argued that C.D.K. was an “Indian child” within the meaning of
the ICWA at the time of his adoption, pursuant to Chapter 2, Section 11A of the
Cherokee Nation Citizenship Act (“Citizenship Act”). The Citizenship Act was adopted
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“for the specific purpose of protecting the rights of the Cherokee Nation under the
[ICWA].” (App. at 340.) Section 11A(B) provides as follows:
Notwithstanding any provisions of this title to the contrary, every newborn
child 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. No request or application for
Tribal Citizenship or other documentation need be submitted or delivered to
the Registrar as a prerequisite to the temporary Tribal Citizenship of a child
under this section. Such temporary Tribal Citizenship shall be effective
automatically from and after the birth of the child for all purposes although
the name of the child is not entered on the Cherokee Register.
(Id. (emphasis, footnote added).) The temporary citizenship automatically expires after
240 days unless the child applies for citizenship. (Id. § 11A(C).) Based on the
Citizenship Act, Nielson claimed that C.D.K. was an Indian child at the time of his
adoption and thus protected by the ICWA. Accordingly, she argues, because the ICWA
procedural requirements were not followed when she consented to the termination of her
parental rights—specifically, Nielson relinquished her parenting rights less than ten days
after C.D.K.’s birth, see 25 U.S.C. § 1913(a)—the termination was invalid. See 25
U.S.C. § 1914 (permitting courts to invalidate a termination of parental rights when the
procedural requirements of the ICWA are not complied with).
The district court agreed. On June 3, 2009, the district court concluded that
C.D.K. was a direct descendant of an original enrollee of the Cherokee Nation, and thus,
An “original enrollee” is someone who was listed on the Dawes Commission Rolls.
(App. at 463.) The Dawes Commission was established in 1896 to, among other things,
create membership rolls for the Cherokee Nation. See Vann v. Kempthorne, 534 F.3d
741, 744 (D.C. Cir. 2008) (citing Act of June 10, 1896, ch. 398, 29 Stat. 321, 339).
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based on the Citizenship Act, an Indian child within the meaning of the ICWA.
Accordingly, because the adoption process did not accord with the ICWA the court
invalidated Nielson’s termination of her parental rights over C.D.K., pursuant to 25
U.S.C. § 1914. The court thus granted Nielson partial summary judgment and denied the
Ketchums’ motion for summary judgment.
Less than two weeks later, on June 15, 2009, the court clarified that while it
granted Nielson’s motion for summary judgment pursuant to § 1914—thus invalidating
the relinquishment of parental rights—it also denied Nielson’s motion for summary
judgment seeking vacature of the adoption proceedings under 25 U.S.C. § 1913(d) on the
ground that Nielson’s consent was obtained through fraud and duress. See 25 U.S.C.
§ 1913(d) (“Upon a finding that such consent [to the adoption] was obtained through
fraud or duress, the court shall vacate [the adoption] decree and return the child to the
parent.”). Nielson has not appealed this determination.
Three days later, on June 18, 2009, the district court concluded that it lacked
jurisdiction to order C.D.K.’s return to Nielson’s custody. Because the court denied
Nielson’s motion for summary judgment under § 1913(d)—which would have required
the court to order a return of the child if the adoption decree had been vacated due to
fraud or duress—that section of the ICWA could not support jurisdiction to order
C.D.K.’s return to Nielson’s custody. The court stated, and the parties agreed, that the
court could not order return of custody unless the petitioner complied with § 1916, which
allows the federal district court to order return of the child only if the adoption decree is
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vacated. Here, there was no vacature, and so the court had no statutory basis on which to
order the return of the child. The court thus concluded that its involvement in the case
was at an end—it had invalidated Nielson’s relinquishment of her parental rights, and as
the ICWA did not provide any basis on which the court could order the return of the
child, it now fell to the state courts to determine the child’s fate. The court also denied
the Ketchums’ motion to stay execution of the judgment pending appeal, and dismissed
without prejudice the Ketchums’ counterclaim for expenses incurred while raising
The Ketchums filed a notice of appeal (appeal no. 09-4113) regarding the court’s
June 3 order finding that C.D.K. is an Indian child and invalidating Nielson’s
relinquishment of her parental rights.3 Nielson has not filed any cross-appeal.4
The Ketchums also filed an appeal of the June 18 order (appeal no. 09-4127), but they
have not raised any issues from that order and instead argue solely that the district court
erred by invalidating Nielson’s relinquishment of parental rights. Any issue related to the
June 18 order is therefore waived. See Thomas v. Int’l Bus. Machs., 48 F.3d 478, 482
n.2 (10th Cir. 1995) (noting in parenthetical, that a “failure to argue an issue in the
appellate brief or at oral argument constitutes waiver, even when the appellant lists the
issue in the notice of appeal” (citation omitted)).
She does argue, however, on pages 31-34 of her brief, that the district court erred and
that “C.D.K. should have been returned to Nielson’s custody.” (Nielson Br. at 34.)
Because she has not filed an appeal in this matter, that issue is not before this court. See
Peterson v. Jensen, 371 F.3d 1199, 1201 n.2 (10th Cir. 2004) (“Because the [Appellees]
did not file a cross-appeal on the additional issues decided by the District Court, we do
not consider them here.”).
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In the meantime, Nielson filed a motion in state court seeking return of custody of
C.D.K. The Utah state court determined that the statute of limitations barred the action
and prevented the court from invalidating the adoption. Nielson appealed, and the Utah
Court of Appeals certified the case for immediate transfer to the Utah Supreme Court,
where the case is still pending.5
The Ketchums appeal the district court’s partial grant of summary judgment in
favor of Nielson. “We review summary judgment decisions de novo, applying the same
legal standard as the district court.” Willis v. Bender, 596 F.3d 1244, 1253 (10th Cir.
2010) (quotations omitted). Thus, we will affirm a grant of summary judgment “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2) (amended Dec. 2010).
25 U.S.C. §1914 provides that
[a]ny Indian child who is the subject of any action for . . . termination of
parental rights under State law. . . and the Indian child’s tribe may petition
any court of competent jurisdiction to invalidate such action upon a
showing that such action violated any provision of sections 1911, 1912, and
1913 of this title.
The parties do not dispute that Nielson relinquished her parental rights within ten days of
C.D.K.’s birth, which, if he is an Indian child, violates § 1913. See 25 U.S.C. § 1913(a)
On July 29, 2010, the Utah Supreme Court granted a motion to continue oral
argument—so it appears that no decision in this case will be forthcoming soon.
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(“Any consent [to termination of parental rights] given prior to, or within ten days after,
birth of the Indian child shall not be valid.”).
This case thus turns on whether C.D.K. is an “Indian child” within the meaning of
the 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. For purposes
of the ICWA, “‘Indian child’ means any unmarried person who is under age eighteen and
is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4).
Nielson and the Cherokee Nation have only ever argued that C.D.K. is an Indian child
because he was a member of an Indian tribe at the time of the relinquishment hearing, so
subparagraph (b) is not at issue.6
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. Further, C.D.K. was a
member of the Cherokee Nation at that time only if the Citizenship Act applied to C.D.K.
at the time of the relinquishment hearing. As mentioned above, the Citizenship Act
provides that “every newborn child who is a Direct Descendant of an Original Enrollee
In any event, subparagraph (b) could not apply to bestow “Indian child” status to
C.D.K. because it is undisputed that Nielson was not a member of an Indian tribe at the
time of the adoption, and no information has been provided about C.D.K.’s father, so no
evidence has been presented from which we could conclude that C.D.K. is “the biological
child of a member of an Indian tribe.” 25 U.S.C. § 1903(4)(b).
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shall be automatically admitted as a citizen of the Cherokee Nation for a period of 240
days following the birth of the child.” (App. at 340.) Accordingly, the Citizenship Act
operated to make C.D.K. an Indian child subject to the protections of the ICWA at the
time of the relinquishment hearing if (a) he is a direct descendant of an original enrollee,
and (b) if the Citizenship Act can permissibly extend citizenship to C.D.K. in the ICWA
context. We address these issues in turn.
Whether C.D.K. is a direct descendant of an original enrollee
In order for the Citizenship Act’s automatic citizenship provision to apply, Nielson
must prove that C.D.K. was “a Direct Descendant of an Original Enrollee.” The district
court admonished Appellees for not providing documentary evidence that clearly showed
that C.D.K. had ancestors who were original enrollees. Nevertheless, the court found
enough indirect evidence so as to conclude “that no reasonable factfinder could conclude
that C.D.K. is anything other than a direct descendant of an original enrollee of the
Cherokee Nation . . . .” (App. at 464.) The Ketchums argue that the district court did not
draw every reasonable inference in their favor in reaching this conclusion, as the court is
required to do in considering a summary judgment motion. See Harman v. Pollock, 586
F.3d 1254, 1268 (10th Cir. 2009), cert denied, 131 S.Ct. 73 (2010).
We agree with the district court that, although the evidence of C.D.K.’s ancestry
was not clearly presented in the district court, the record nevertheless compels the
conclusion that he is a direct descendant of an original enrollee. The current constitution
of the Cherokee Nation, adopted in 2003, provides that “[a]ll citizens of the Cherokee
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Nation must be original enrollees or descendants of original enrollees listed on the Dawes
Commission Rolls.” (App. at 292.) The prior constitution, enacted in 1976, also called
for reference to the Dawes Commission Rolls to prove membership in the Cherokee
Nation.7 (App. at 217 (“All members of the Cherokee Nation must be citizens as proven
by reference to the Dawes Commission Rolls . . . .”).)
The record contains approved applications for citizenship in the Cherokee Nation
for both Nielson and her mother, filed in May 2008.8 Under the terms of the 2003
Constitution, in order for those applications to be approved, Nielson and her mother
“must be original enrollees or descendants of original enrollees.” (App. at 292 (emphasis
added).) The Registration Committee approved their applications, 9 and so the record
permits only the conclusion that Nielson and her mother must be descendants of original
enrollees. This conclusion is corroborated by a Certificate of Degree of Indian Blood
issued to Nielson by the United States Department of the Interior, which lists Dawes Roll
Numbers for Nielson’s great-great grandparents. The record also contains a Certificate of
The 1976 constitution is printed verbatim in a document comparing the 1976 and 2003
constitutions, which was provided to the voters who adopted the 2003 constitution and
which is in the record.
It is unclear whether Nielson’s mother was a registered member of the tribe prior to
filing this application, as she claimed at the relinquishment hearing.
According to the Cherokee Constitution, a Registration Committee considers the
eligibility of applicants to see if they qualify for Cherokee citizenship. The decisions of
the Committee are reviewable by tribal courts.
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Degree of Indian Blood issued to Nielson’s grandfather which also shows the Dawes Roll
Numbers for these ancestors.
The record thus demonstrates that Nielson—as well as her mother—is a direct
descendant of Dawes enrollees. C.D.K., who is a descendant of Nielson, must therefore
be a descendant of Dawes enrollees as well.
Applicability of the Citizenship Act to Declare Cherokee Citizenship on
According to the Citizenship Act, C.D.K. was a citizen of the Cherokee Nation at
the time of his adoption and thus an “Indian child” subject to the protections of the
ICWA. See 25 U.S.C. § 1903(4) (“‘Indian child’ means any unmarried person who is
under age eighteen and is . . . a member of an Indian tribe . . . .”). The Ketchums
challenge whether the Citizenship Act can apply at all in this situation, arguing that it
could not grant C.D.K. citizenship for ICWA purposes. We agree.
Assuming, without deciding, that the tribe possessed the authority to declare that
the offspring of a nonmember is a citizen without the nonmember’s consent for internal
tribe purposes, the type of citizenship provided by the Citizenship Act does not make the
child a “member” within the meaning of the ICWA. The ICWA explicitly defines
“Indian child” as “any unmarried person who is under age eighteen and is . . . a member
of an Indian tribe.” 25 U.S.C. § 1903(4) (emphasis added). While the Citizenship Act
purports to make newborns who are directly descended from Dawes enrollees temporary
citizens for 240 days following their birth, the ICWA does not apply to this sort of
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temporary membership. Appellees have not identified any other law by any other tribe
that provides for temporary membership, let alone that such a temporary membership was
within the contemplation of Congress when it applied the ICWA to children who are
“member[s]” of Indian tribes. 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. Therefore, we conclude that § 1903(4)(a)’s definition of an Indian child as
including a “member of an Indian tribe” does not include the type of temporary
membership provided in the Citizenship Act.
Not only does the temporary membership provision of the Citizenship Act fail to
bring temporary members under the protection of the ICWA, but the Citizenship Act’s
broad definition of citizenship—even if it was full citizenship as opposed to temporary—
violates Congress’ intent. The legislative history of the ICWA shows that Congress
considered, but ultimately rejected, an expansive definition of “Indian child” that was
comparable to the definition employed in the Citizenship Act and that would have
included C.D.K. within its terms. Specifically, an earlier draft of the ICWA did not
define “Indian child,” but rather defined “Indian” as “any person who is a member of or
who is eligible for membership in a federally recognized Indian tribe.” (App. at 414 (123
Cong. Rec. S37223 (1977) (emphasis added).) Under this rejected definition, C.D.K.
would have been an Indian child even without the Citizenship Act because he was
eligible for membership in a federally recognized tribe. But the final draft of the statute
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limited membership for those children who were eligible for membership because they
had a parent who is a member.
Appellees contend that this court cannot interfere with the tribe’s determination of
who is a member because “tribes . . . have exclusive authority on membership
determinations for tribal purposes.” Ordinance 59 Ass’n v. U.S. Dep’t of Interior Sec’y,
163 F.3d 1150, 1153 n.3 (10th Cir. 1998); see also Santa Clara Pueblo v. Martinez, 436
U.S. 49, 72 n.32 (1978) (“A tribe’s right to define its own membership for tribal purposes
has long been recognized as central to its existence as an independent political
community.”). In this context, however, the Cherokee Nation does not seek to define
membership only for tribal purposes, but also seeks to define membership for the
purposes of a federal statute.
We are interpreting the ICWA, a federal statute, and conclude only that the
Citizenship Act does not bring C.D.K. within the definition of “Indian child” under the
ICWA. The tribe cannot expand the reach of a federal statute by a tribal provision that
extends automatic citizenship to the child of a nonmember of the tribe.
Based on the definition of “Indian child” provided in the ICWA, we conclude that
C.D.K. was not an “Indian child” at the time of the adoption proceedings for ICWA
purposes, and so the procedural safeguards provided for in the ICWA did not apply to the
relinquishment hearing and adoption proceedings. The district court’s conclusion that
those proceedings had to comply with the ICWA was in error.
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We REVERSE the district court’s grant of partial summary judgment in favor of
Nielson, and REMAND for proceedings consistent with this opinion.
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