The state Court of Appeals overturned a 2023 Mecklenburg County move to terminate a mother’s parental rights before attempting to notify Cherokee tribal leaders. The case involves a now 5-year-old child who, according to court records, may be of Cherokee descent.
The U.S. Indian Child Welfare Act requires courts to notify and allow time for tribes to intervene in custody and adoption cases involving Indigenous juveniles. In its ruling, the appeals court said the trial court should have determined if the child is Indigenous before moving forward with the case, which resulted in a termination of the mother’s parentage last year.
During court proceedings, the mother told officials she is Native American and the child’s father is possibly Cherokee.
The 45-year-old Indian Child Welfare Act, often referred to as ICWA, prioritizes keeping Indigenous children who are removed from their biological families with extended family or other Native foster homes.
The young girl in the Mecklenburg case – called Amani, a pseudonym, in court records – was born in 2018. At the time, according to court documents, her mother was 17 and in custody of the Department of Social Services. The child’s great-grandmother initially assumed permanent custody, court records show.
Later, in 2022, DSS took emergency custody of Amani. In March 2022, authorities discovered the child with bruises and scratches, living in a hotel with her mother and younger brother, the N.C. Court of Appeals opinion states. Her mother, according to the courts, was charged with child abuse.
Two months later, authorities found Amani in the care of a 14-year-old relative, which set off the Mecklenburg court’s attempt to place the girl with a foster, and eventual, adoptive family.
After losing parental rights in July 2023, Amani’s mother appealed the Mecklenburg District Court’s ruling on the basis that officials failed to follow ICWA. The North Carolina Court of Appeals agreed in a ruling issued on Tuesday and has remanded the case back to the trial court – ordering officials to give notice of Amani’s pending adoption to the Eastern Band of Cherokee Indians and other Cherokee tribes.
ICWA was enacted in 1978 in response to the widespread displacement of Native American children by the federal government.
Prior to the measure, an estimated 25% to 30% of native children were removed from their families by public and private authorities and placed in non-native homes or facilities. The law sought to keep Indigenous children connected to their families and their communities.
In the Mecklenburg case, court documents state that officials moved forward with Amani being adopted outside her immediate family without notifying potential stakeholders with Cherokee tribes. The child’s father was not involved.
Amani’s mother told the trial court during a custody hearing in 2022 “that (the girl’s) father is of Cherokee descent.” In the mother’s appeal, she argued the trial court did not comply with ICWA after she “gave it reason to know” that her daughter may be an Indigenous child to whom ICWA would be apply.
Before terminating the mother’s parental rights, the courts set up visitation periods and gave her orders for activities like parenting classes.
Court of Appeals decision ruled it is the responsibility of the state- not the family- to follow up on ICWA claims.
In Tuesday’s ruling, the three-member Court of Appeals judicial panel wrote: “We note that, now, it seems to be the case that the burden has shifted to state courts to inquire at the start of a proceeding whether the child at issue is an Indian child, and, if so, the state court must confirm that the agency used due diligence to identify and work with the Tribe and treat the child as an Indian child unless and until it is determined otherwise.”
Throughout the case, it is noted that the mother has not provided any proof that the child is Indigenous but the appeals court asserts that it is the responsibility of the court to reach out to the child’s potential tribe to follow up on this claim.
“Although DSS inquired of the maternal relatives about Native American ancestry, DSS did not send the notices required to the tribes identified by Mother, namely the Cherokee Tribes,” court documents state. “DSS failed to work with the Cherokee Tribes and did not send the required notice to the Tribes.”
The ruling said DSS also should have researched the case history and that it failed to identify relatives with Indian heritage and failed to obtain further information from her mother.
“The trial court should have required DSS to send notices to the Cherokee Tribes of Mother’s father’s name and his lineage and waited for confirmation of whether Amani is an Indian child,” the documents stated.
This case is important because it doubles down on DSS standards for ICWA cases. David Moore is a lawyer who often represents Departments of Social Services in Macon, Clay, Jackson, Haywood Graham and Cherokee counties.
"Anytime ICWA is implicated, a Department of Social Services...is required to give notice to that particular tribe or village, pursuant to BIA regulations," Moore told BPRin 2023. "And then it is incumbent upon that tribe at that point in time to say, 'We choose to intervene in this juvenile proceeding to have a say in the placement of the child and how the court proceeding occurs.'"
The ability to be a part of these court proceedings is part of the sovereignty rights of each tribe, explained Rebecca Nagle, a Cherokee Nation journalist.
Nagle said the relationship between ICWA and larger issues of tribal sovereignty are inextricably intertwined.
"What is scary about that argument is that there's a whole host of federal laws that treat tribes and tribal citizens differently,” Nagle told BPR in 2023. “And so if ICWA can't do that, well then what about health care and health clinics that treat tribal citizens but don't treat other folks? What about laws that let tribes operate casinos where non-native casino developers can't? Is that discrimination?"
In June 2023, seven of the nine justices on the nation’s highest courtvoted to uphold a law centered around the adoption of Native children.
