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Nebraska Supreme Court Decision Clarifies Rights Under ICWA

FOR IMMEDIATE RELEASE

June 23, 2023

Media Contact:

Jonathan Seagrass, Managing Attorney, Native America Program

Phone: 402-348-1069 ext. 266 Email: jseagrass@legalaidofnebraska.org

LINCOLN, NE –The Nebraska Supreme Court has decided that Nebraska courts must follow federal regulations in cases involving the Indian Child Welfare Act (ICWA). The Nebraska Supreme Court’s supplemental opinion in In re Interest of Manuel C. & Mateo S. comes days after the United States Supreme Court upheld the ICWA (Haaland v. Brackeen).

Jacinta Dai-Klabunde, an attorney with Legal Aid of Nebraska’s Juvenile Justice Project, represented the mother in In re Interest of Manuel C. & Mateo S. The mother alleged the ICWA should apply in her case because her two children were considered Indian children under the Act. After the juvenile court found the federal Act did not apply, Dai-Klabunde alongside the Red Lake Band of Chippewa Indians, appealed to the Nebraska Supreme Court, and requested the Court overturn the juvenile court’s order finding the ICWA was not applicable.

In its original opinion, the Nebraska Supreme Court found that tribes have the sovereign right to determine their members. However, the Court also upheld the juvenile court’s order finding the mother did not sufficiently prove the children were members of the Tribe; therefore, they were not entitled to the rights guaranteed to children under the ICWA.

After this decision by the Nebraska Supreme Court, Legal Aid attorneys asked the Court to rehear the case. Under the regulations, a state court must treat a case as an ICWA case whenever there is “reason to know” a child involved is an Indian child. Although the Nebraska Supreme Court determined not to rehear the case, the Court recognized that Nebraska courts must follow federal regulations. The Court struck language from the original decision, which said the burden was on the tribe to show that ICWA applied to the case. The Court still upheld the juvenile court’s order that ICWA did not apply in this case, and found the juvenile court met the federal regulations.

“The ICWA is a vital federal law requiring Native American voices play a central role in raising and caring for Native American children,” said Jonathan Seagrass, Managing Attorney of Legal Aid of Nebraska’s Native American Program. “The federal regulations, implemented in 2016, set forth rules state courts must follow in ICWA proceedings. Although we are disappointed that the juvenile court’s order finding the ICWA did not apply in this case was upheld, today’s supplemental opinion clarifies that the federal regulations need to be followed by our state courts.”

Legal Aid of Nebraska has fought for decades to protect the rights of Native American families and Tribes under the ICWA.

Legal Aid of Nebraska’s cases involving the ICWA:

In re Manuel C. and Mateo S., 315 Neb. 580 (2023)

Protects the rights of Native American children and families by recognizing the 2016 federal ICWA regulations setting forth rules for how states implement ICWA, need to be followed by Nebraska courts.

In re Guardianship of Eliza W., 304 Neb. 995 (2020)

Protects the rights of Native American children and families by holding private guardianship proceedings qualify as a “foster care placement” for purposes of ICWA and NICWA.

In re Int. of Shayla H., 289 Neb. 473 (2014)

Protects the rights of Native American children and families by holding that at any point in an involuntary juvenile court proceeding involving an Indian child, the state must demonstrate active efforts to reunify or prevent the breakup of the family.

In re Int. of Jayden D., 21 Neb. App. 666 (2014)

Protects the rights of Native American children, families and tribes by holding a foster placement proceeding and a subsequent termination of parental rights proceeding involving an Indian child are separate and distinct proceedings under both ICWA and NICWA, for purposes of determining whether good cause exists to deny a motion to transfer the proceeding to the tribal court because the state court proceedings are at an advanced stage.

In re Enrique P., 19 Neb. App. 778 (2012)

Juvenile courts must make an explicit written finding of good cause for deviating from the ICWA placement requirements.

In re Int. of Shayla H., 17 Neb. App. 436 (2009)

Ensures that Native American families receive due process by requiring the State to allege facts concerning ICWA requirements. These requirements include active efforts by the State to prevent the breakup of the family; evidence that shows serious emotional harm or physical damage to the Indian child is likely to occur unless the Indian child is removed from their home; and the additional requirement that the any removal must first be supported by qualified expert testimony.

In re Int. of Walter W., 14 Neb. App. 891 (2006)

Protects the rights of Native American children and families by finding state’s alleged failure to notify the child’s Indian Tribe of termination of parental rights proceedings as required by statute requiring vacating of the order of termination.

In re Int. of Bird Head, 213 Neb. 741 (1983)

Protects the rights of Native American children in foster care placements by requiring compliance with the placement preferences under ICWA.

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Legal Aid of Nebraska was established in 1963 and is the largest statewide non-profit civil legal aid provider in Nebraska, providing free high-quality services to low-income Nebraskans in all 93 counties. Legal Aid’s mission is, “to promote justice, dignity, hope and self-sufficiency through quality civil legal aid for those who have nowhere else to turn.”  Legal Aid has offices in Lincoln, Omaha, North Platte, Norfolk, Grand Island, Scottsbluff and Bancroft.

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