Nebraska Supreme Court decides Indian Child Welfare Act case

***For Immediate Release***

NE_Appleseed_Icons_Legal-128November 14, 2014

Contact, Jeff Sheldon
Communications Director, Nebraska Appleseed
Office: (402) 438-8853
Mobile: (402) 840-7289

Nebraska Supreme Court makes influential decision on Indian Child Welfare Act

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

LINCOLN – Today, the Nebraska Supreme Court 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., will have 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, more than 800 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.

“Today’s decision by the Nebraska Supreme Court reaffirms that ICWA applies in all juvenile court cases involving Native American children,” said Robert McEwen, staff attorney for Nebraska Appleseed. “This decision is a great victory for native families and tribes. Nebraska Appleseed is very proud to partner with Legal Aid and attorneys from the Winnebago, Ponca, Santee Sioux, and Omaha tribes to preserve the rights of native families and tribes.”

Had the Court not upheld the Court of Appeals’ ruling, and decided that the ICWA does not apply unless children are removed from their home, it would have created a significant negative impact on Native American families in Nebraska’s juvenile court system.

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.”

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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