Court: Mother’s custody wishes trump those of tribe

Supreme Court rules agency can place child with non-American Indian family

Thursday, July 23, 2009 | 1:07 p.m.

Nevada Supreme Court

CARSON CITY – The Nevada Supreme Court has ruled that a licensed adoption agency in Las Vegas can place an American Indian child with a family, despite the objections of the Cherokee Nation Tribe.

The court, in a unanimous decision, rejected the argument of the Cherokee Nation that the adoption procedures had to go through a tribal court instead of a state district court.

Deziray G., a 23-year-old registered citizen of the Cherokee Nation, gave birth to a son at Valley Hospital in Las Vegas on Jan. 10 2007. Two weeks later she relinquished her parental rights to a licensed adoption and child placement agency, A Child’s Dream of Nevada.

Deziray wanted her child placed with a non-American Indian family identified only as “Christine and John.”

District Judge Gerald Hardcastle signed the order relinquishing the rights of the mother.

The adoption agency also started action to terminate the parental rights of the apparent father, whose paternity was not established.

The Cherokee Nation, based in Oklahoma, filed suit in Reno asking to intervene in the case. During the two-year battle, the child has been with the family favored by the child’s mother.

The Supreme Court, in a unanimous decision Wednesday, ruled the wishes of the mother should be considered over a federal law that favors keeping Indian families together.

Federal law sets forth the cases where a tribal court has exclusive jurisdiction over child custody matters. The Supreme Court said the federal law is to protect American Indian children, families and tribes “from unnecessary and unwarranted separation.”

But the Supreme Court said Congress also intended to honor the desire of the parents of the child in adoption decisions.

In this case, Deziray, although a citizen of the Cherokee Nation, said she did not live on the Cherokee Nation reservation. And in her statement to the district court, she opposed any attempt to transfer jurisdiction in the case to the tribal court.

The Cherokee Nation argued that the child’s maternal grandmother was willing to be a foster parent.

The Supreme Court said there was good cause for the district court to deviate from the adoption framework in the federal law.

Although the case started in the district court in Las Vegas, it ended up in the court in Reno where District Judge Deborah Schumacher made the decision to back the wishes of the mother in the adoption dispute.

Discussion: 9 comments so far…

By CynicalObserver

7/23/09 at 3:10 p.m.

Suggest removal

I suspect an appeal to the Federal court will follow.

In the 1800's to 1900's Indians were victimized by the state and Federal governments.

Now, in the 2000's, little Indian kids are victimized by "their tribes", who they don't even know.

Like it or not, throughout the United States, grandparents do not have presumptive custodial rights. Their custodial claim must pass the "best interest of the child" test. But just watch, some smart axed lawyer for the Tribe, spurred on by the Cherokee grandmother, will want to upset the apple cart.

Quite obviously, if the natural mother of the child wanted her kid to be raised by the grandmother, the mother would have sent the child home to the Rez. Kind of tells you something about grandma's parenting skills, doesn't it?
By henderson

7/23/09 at 4:45 p.m.

Suggest removal

I can't believe the reservation could possibly intervene and thwart the adoption process. That is so wrong. A mother has the right to select the people she wants to raise her child.
By modocprincess

7/24/09 at 11:08 a.m.

Suggest removal

These children are victimized by their reservations. They are better off in the State or licensed foster homes, at least they may have a small chance of living a healthy lifestyle vs the abuse they receive from their families on the reservations. The tribes in Northern California get funding from the Indian Child Welfare programs and they move the monies around to pay higher wages and fund other programs at the expense of the children. The only victims are the children. The abusers are praised and held on a pestals by their corrupt tribal councils. This mother may not be smart in not keeping and taking care of her own child but she certainly is "smart" in not giving her child back to the tribe. Not all tribes neglect their children however here in Northern California it done! I have witnessed many children of the court neglected by their Tribes because their tribe doesn't know how to utilize the ICWA funding. In summary it is "in the best interest of the child" to be placed with the State or Foster homes in many cases.
By benc

7/24/09 at 12:22 p.m.

Suggest removal

Hmm,I wonder..If a reservation court mandated that a white child (half or otherwise) be placed with a non-related Indian couple on the res. instead of it's white relations, how much outcry would there be from whites? And how quickly off-res law enforcement would swoop down to "rescue" the poor child from the injuns.
By jewjew78

7/25/09 at 12:52 a.m.

Suggest removal

I agree with benc@budwiser.com. Also our Native Americans are such a minority and to assume that they only abuse children and comparing them to Whites is absured. The White population is much larger and are not residents of such Reservations. Could you imagine the abuse by them suffered by there children. I fear that this childs culture will be washed out. I repect the mothers wishes and I agree with the Tribes concerns. Given the history of White Europeans in this country. So why dont we as citizens of this country respect both parites involved and wish them all the best instead of holding hate and dicontent for a child of no relation to you. And if you are so concerned try joining them in court if The Cherokee Nation Apeals. I'm sure they will welcome any advise you may have to better this childs future.

R/
Me
By candyll

7/26/09 at 7:14 a.m.

Suggest removal

What about the rights of the baby to know their natural family???? To be taught their culture and family traditions??? To know their people and where they come from and giving that child roots and history that date before the supreme court...the intent of ICWA was to protect the child and preserve these rights. So they don't grow up wondering who they are, assimilated into a culture not their own. I experienced this first hand BEFORE ICWA. it took me 35 years to find my way back to my poeple.
By candyll

7/26/09 at 7:20 a.m.

Suggest removal

to say that this child would be better off with white people and given a chance of a healthy lifestyle is a statement that makes no sense. I was beaten and abuse by every white family that took me in from the age of 5. Unless you take in foster kids or have been a vctim and survived foster care, you should learn what you are talking about before making racial blanket statements. This just shows a lack of knowledge.
By OK

8/10/09 at 12:16 p.m.

Suggest removal

Just for the record. Cherokees don't live on a reservation.
By cab1950

8/22/09 at 9:14 p.m.

Suggest removal

Just for the record. Cherokee Indians in western North Carolina do live on a reservation. They own the land they live on and the government has build them houses to live in. Very nice homes might I say. All medical and prescription treatment is free when they go to medical clinics and hospitals in Chreokee, NC or to local clinics on the reservation. The clinics and hospitals have state of the art medical facilities and excellent doctors. The Cherokee Indians on the roll also receive a per capita check twice a year from profits generated by Harrah's Casino.

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