PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

BRITNEY JANE LITTLE DOVE 

NIELSON,

 Petitioner-Appellee,

v.

SUNNY KETCHUM; JOSHUA 

KETCHUM,

Respondents-Appellants,

------------------------------

CHEROKEE NATION, 

 Intervenor – Appellee.

 Nos. 09-4113, 09-4129

 

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 

for Intervenor-Appellee. 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 5, 2011

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
3 

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. 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 

 

1

 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. 
4 

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[1], 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 
5 

“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[2] 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, 

 

2

 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). 
6 

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 
7 

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 

C.D.K. 

 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

 

3

 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)). 

4

 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.”). 
8 

 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

II. Discussion 

 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) 

 

5

 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. 
9 

(“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 

 

6

 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). 
10 

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. 

A. 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 
11 

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 

 

7

 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. 8

 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. 

9

 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. 
12 

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. 

B. Applicability of the Citizenship Act to Declare Cherokee Citizenship on 

 C.D.K. 

 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 
13 

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 
14 

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. 
15 

III. Conclusion 

 We REVERSE the district court’s grant of partial summary judgment in favor of 

Nielson, and REMAND for proceedings consistent with this opinion.