By Timberly Ross - May 24, 2009
OMAHA- The Nebraska Supreme Court is expected to hear arguments (in late May 2009) on whether the state's legal procedures can trump a federal law that allows American Indian tribes to intervene in child-welfare cases.
In an appeal filed with the high court, the Ponca Tribe says a Dakota County juvenile court judge denied its rights under the Indian Child Welfare Act because the tribe was not represented by a state-recognized attorney.
"The federal law provides that tribes can intervene in any state child-custody proceeding that involves their children," said the tribe's Denver, Colo.-based attorney, Brad Jolly. "If a tribe has to have a lawyer in each of those cases, they won't be able to intervene."
For most tribes, the cost of having an attorney appear in each and every child-welfare case is prohibitive, he said.
The Indian Child Welfare Act provides tough standards for removing American Indian children from their homes.
Congress passed the law in 1978 to curb a rise in adoptions of Indian children by non-Indians. In some states, 35 percent of Indian children had been removed from their homes to live with non-Indians.
"Tribal intervention in state child-custody proceedings involving Indian children is one of the primary tools Congress provided to ensure an Indian child's continued relationship with his or her tribe and
community," Jolly wrote in the appeal. "The right of Indian tribes to intervene in state child custody proceedings involving their children is absolute and unequivocal."
In October, the Ponca Tribe filed a motion in Dakota County juvenile court to intervene in a child-welfare case involving two Ponca children.
But the filing was thrown out by Judge Kurt Rager because, according to court documents, it was not submitted by an attorney.
Rather, the motion had been submitted by a trained specialist who counsels tribes on juvenile cases.
In the appeal, Jolly wrote that courts typically grant such specialists the same power as an attorney because of the tribe's sovereign status.
"In refusing to allow the tribe's ICWA specialist to file a motion to intervene on behalf of the tribe, the county court has effectively removed the tribe's right to intervene in the proceedings," he wrote.
The Ponca Tribe is asking the high court to overturn Rager's dismissal of the filing. Arguments in the case are scheduled for Tuesday. A message left for Rager was not immediately returned. Judges generally do not comment on pending cases.
Jolly said the Ponca Tribe has faced similar dismissals in other Dakota County juvenile court cases since October.
The Nebraska Appleseed Center for Law in the Public Interest, which submitted a so-called friend of the court brief in support of the tribe, said: "The state's interest in requiring organizations to be represented by an attorney, however, cannot compare to the interest of tribes in their children and in their survival, an interest which Congress unambiguously intended to safeguard through the ICWA."
Legal Aid of Nebraska, the National Child Welfare Association, Indian Center Inc. and several tribes, including the Winnebago and Omaha, also participated in the brief.
UPDATE: In re Elias L., 227 Neb. 1023 (2009) - Partner Achieves Victory for Tribal Rights Under the ICWA
by Brad Jolly, Partner, June 26, 2009 http://www.bsjlawfirm.com/info/arts/artsFull.php?id=58&p=2
In a case brought and argued by Partner, Brad Jolly, the Nebraska Supreme Court unanimously held that Indian nations can intervene and fully participate in state court proceedings subject to the Indian Child Welfare Act ("ICWA") without legal counsel regardless of state laws requiring organizations to appear in court only through an attorney.
The case, In re Elias L., 227 Neb. 1023 (2009), originated in the Dakota County Court. The Ponca Tribe of Nebraska filed a motion to intervene pursuant to Nebraska and Federal law through its ICWA Specialist, Jill Holt. The ICWA provides an absolute and unqualified right of Indian tribes to intervene in child welfare cases involving their children. However, the Douglas County Judge refused to hear the motion to intervene on the grounds that Nebraska state law requires that organizations appear in court only through an attorney and the Tribe's ICWA Specialist was not a lawyer. The Judge held that he "is charged with the duty to enforce the prohibition against the practice of law without a license" and that required him to prevent the Tribe's ICWA Specialist from appearing on behalf of the Tribe even though the Tribe had authorized and designated her to do so. The Judge simply returned the motion to intervene, refusing to allow it to be filed.
The Tribe appealed the Judge's refusal to allow the Tribe's intervention and Brad Jolly represented the Tribe as its general counsel. In its opinion, aligning itself with prior decisions from Oregon and Iowa, the Nebraska Supreme Court recognized that the ICWA preempts state law and requiring tribes to appear only through attorneys would interfere with the federal right of intervention guaranteed in the ICWA. Further, the Court recognized that economic barriers which may prevent tribes from being able to afford legal counsel would prevent many tribes from intervening in ICWA proceedings. leaving both the rights of the tribe and key rights of the children unrepresented and unheard. The Court concluded that enforcement of Nebraska's unauthorized practice of law ("UPS") statutes "is incompatible with the federally granted tribal right of intervening in child custody proceedings governed by ICWA."
On the other hand, the Court held, while the state has a legitimate interest in requiring organizations to be represented by an attorney, its interests did not outweigh those of the tribes and the federal government in ICWA proceedings. The Court noted that state law permits individuals to represent themselves in court proceedings and also permits employees of organizations to perform certain acts that otherwise constitute the practice of law when done for the benefit of the organization. The Court also noted that the state's interests were not necessarily compromised because tribes generally appear through child welfare professionals, such as the Tribe's ICWA Specialist, who are familiar with juvenile proceedings and the ICWA.
Ultimately, the Court held that "tribal participation in state custody proceedings innvolving Indian children is essential to achieving the goals of ICWA." Importantly, the Court held that state courts "shall allow the Tribe's designated representative to fully participate in [ICWA] proceedings."
The case is an important victory for the Ponca Tribe of Nebraska and all other tribes with ICWA cases in the state. Over the years, many county court and juvenile court judges have refused to allow tribes to appear in ICWA cases without an attorney. At times, even when a judge allows a tribe to intervene without an attorney, they do not allow the tribe to participate in the proceedings by refusing to allow the tribe's representative to speak in court, present evidence, or do anything other than observe. The Nebraska Supreme Court's bold opinion finally settles the issue in Nebraska, ensuring that Indian nations will be permitted to not only intervene, but to fully participate in ICWA proceedings in accordance with federal law.
Thanks to John Dall for his research on this!...Trace