Nebraska Court of Appeals makes influential decisions on Indian Child Welfare Act

***For Immediate Release***

NE_Appleseed_Icons_Legal-128May 20, 2014

Contact, Jeff Sheldon
Communications Director, Nebraska Appleseed
Office: (402) 438-8853
Mobile: (402) 840-7289
jsheldon@neappleseed.org
 

Nebraska Court of Appeals makes influential decisions on Indian Child Welfare Act

Court holds ICWA protections apply to state wards placed in parental home

LINCOLN – Today, the Nebraska Court of Appeals ruled that the Indian Child Welfare Act’s active efforts requirement applies to cases involving state wards who are placed in their own home as part of a juvenile court case.  The active efforts requirement is the state’s heightened obligation in child welfare cases involving Native American children to prove that services have been provided to prevent the separation of the family.

This decision in the case In re Interest of Shayla H., has significant implications as Nebraska increases efforts to place more children in their own homes.  According to the most recent Kids Count in Nebraska Report, in 2013, 847 children were placed in the parental home as part of a juvenile court case (2,614 were placed out-of-home).  Today’s decision made clear that, in cases involving Native American children, the state’s heightened requirement to provide remedial services and rehabilitative programs to prevent the separation of the family applies even when the children are placed in-home.

“This is an important case in protecting the best interests of Indian children in Nebraska,” said Rosalynd Koob of Heidman Law Firm, L.L.P., who represents the Winnebago Tribe of Nebraska and the Omaha Tribe of Nebraska.  “By ensuring children and families are offered and provided preventative and remedial services, the decision is critical to helping fulfill the goals of ICWA, to protect and preserve Native American families and culture.”

The case involves the disposition of a juvenile court case regarding three children, who are enrolled and eligible for enrollment in the Rosebud Sioux Tribe.  The Indian Child Welfare Act, which governs child custody proceedings involving Native American children, requires, among other things, that the state prove that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.”

“This is a positive result for the family and for the tribes,” said Patrick Carraher of Legal Aid of Nebraska, who represents the father in the case.  “If the decision had gone the other way, and the Court had found that the ICWA did not apply unless children were removed, there would have been a significant negative impact on Native American families in juvenile court.”

“The active efforts requirement is a vital tool to preserve cultural connections and address the disproportionate number of Native American children in the state child welfare system,” said Robert McEwen, staff attorney for Nebraska Appleseed.  “Today’s decision makes clear that ICWA is not a light switch than can be turned on and off during the course of a juvenile court case depending on the child’s placement.”

The Indian Child Welfare Act was enacted by Congress as a means of addressing the disproportionate number of Native American children removed from their homes and placed in non-Indian foster or adoptive homes by state agencies.  According to the 2013 Kids Count report, 4.9 percent of foster care entries in Nebraska involve Native American children, which is higher than their proportion in the population.  According national reports in recent years, Nebraska has had one of the highest rates of disproportionality of Native American children in the foster care system in the country.

Patrick Carraher of Legal Aid of Nebraska represented the Appellant father.

An amicus brief was filed in this case by the Nebraska ICWA Coalition by Rosalyn J. Koob of Heidemann Law Firm, L.L.P. on behalf of the Winnebago Tribe of Nebraska and the Omaha Tribe of Nebraska; Brad S. Jolly of Brad S. Jolly & Associates, L.L.C. on behalf of the Ponca Tribe of Nebraska; Jennifer Bear Eagle of Fredericks, Peebles & Morgan, L.L.P. on behalf of the Santee Sioux Nation; and Robert McEwen and Sarah Helvey on behalf of the Nebraska Appleseed Center for Law in the Public Interest.

The Nebraska ICWA Coalition is a group of tribal representatives and advocates committed to the full enforcement of ICWA in Nebraska.  

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