This particular case study is very close to my heart. My mother was a Mescalero Apache and my father was of Irish descent. As a fair-haired, mixed-race child myself, I felt deeply for the child in this case and fought hard to give her the life she deserved.
The challenge
My clients Ted and Anna (not their real names), who lived in Colorado, came to me about the case of their granddaughter Mary (not her real name), who lived with her father in New Mexico. Mary had been in a dangerous situation in New Mexico, and Ted and Anna wanted to gain custody of her. Ted and Anna are both Cherokee, and wanted to move with Mary to the Cherokee reservation in Oklahoma.
At that time Mary was not an official tribal member and did not have the right to live on the reservation. Moreover, Mary’s non-Native American father had custody of her in New Mexico, a different state than where Ted and Anna lived.
We, therefore, had three separate legal issues, which were dependent on each other:
- Helping the grandparents obtain custody of their grandchild;
- Securing tribe membership for the child; and
- Proving her right to land ownership on the tribe’s reservation.
These three legal issues were made more challenging by the fact that we were arguing the case across two states, in both New Mexico and Colorado.
The approach
First, I had to ensure that Mary was safe. The grandparents had gone to New Mexico to rescue Mary from her father and had taken her back to Colorado. She had been hospitalized and I secured her move to a specialized hospital for abused children in Colorado to make sure she received appropriate care for the months she needed it.
Then, I needed to prove that Mary had a sufficient blood quantum through her mother and grandparents to be accepted into the Cherokee tribe. The blood quantum represents the proportion of Native American heritage that an individual has and each tribe will accept a different level of blood quantum in order for an individual to become a member. My first task was to trace back Mary’s genealogy through the records and tribal rolls to see where she fit and prove that she had enough Native American ancestry to be a tribal member. I proved that she was eligible and applied to the Cherokee tribal office for tribal membership for her.
Once the tribal membership was secured, I used the Indian Child Welfare Act of 1978 to persuade the judge that Mary should be given into the custody of her grandparents. The Act presumes that Native American children should be raised by Native American relatives or non-relatives of their tribe or another tribe, in preference to non-Native American relatives. This set the presumption that Mary should be raised by her grandparents.
While I was identifying her ancestry through the tribal roles, I also searched for her right to land, tracing back land titles, through several estates. Her genealogy and position on the tribal rolls, meant that she was entitled to inherit land on the Oklahoma Cherokee reservation.
Throughout the case, we had a jurisdiction problem as the child was a resident of New Mexico, whereas the grandparents were Colorado residents and we were arguing the case in Colorado. This meant that the judge in New Mexico had to be present on the phone for each of the hearings, while they took place in Colorado. In an extremely rare result, I was able to convince the judge in New Mexico to relinquish the case to Colorado jurisdiction so that the Colorado judge could rule on Mary living with her grandparents.
The result
As I was able to prove Mary’s Native American heritage; secure her Cherokee tribal membership; and convince the judge to give Ted and Anna custody of her, Mary was able to move in with her grandparents. The judge also terminated the father’s parental rights so Mary was safe from him. Ted, Anna and Mary now live in Oklahoma on the Cherokee reservation where Ted and Anna grew up and Mary has the right to land on this reservation. I am very proud to have been able to help this little girl escape from an abusive situation and also reclaim her heritage and land birth right.
Find out more about guardianships, conservatorships and other services I offer on my Services page.
If you would like to get in touch about your situation, please call me on 720 457 4573 or email me at kate@rockymtnelderlaw.com.
