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In re Elias L., 227 Neb. 1023 (2009) - Partner Achieves Victory for Tribal Rights Under the ICWA

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by Brad Jolly, Partner

June 26, 2009

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.

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