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Neb. court: Tribe can intervene in kids’ cases

LINCOLN, Neb. – Financially strapped American Indian tribes do not have to hire attorneys to represent their interests in child welfare cases, the Nebraska Supreme Court ruled June 26.

The court said preserving American Indian culture and saving tribes from extinction trumps any interest the state has in restricting the practice of law to lawyers.

The decision was a victory for the Ponca Tribe of Nebraska, which had argued that a Dakota County juvenile court judge wrongly denied its rights under the Indian Child Welfare Act when he rejected the tribe’s request to intervene in a child welfare case because it wasn’t represented by an attorney. The case included two Ponca children that the state alleged needed help.

“This decision promotes the rights of tribes to protect their families and children within the state’s judicial system,” a statement from the tribe said.

The tribe’s motion to intervene was submitted by a trained specialist who counsels tribes on juvenile cases. It argued it didn’t have the money to hire attorneys to represent it in child-custody proceedings.

Judge Kurt Rager threw out the motion, saying the court has a duty to enforce a state ban on people practicing law without a license. The high court disagreed, saying more important interests were at stake.

“By implication, if the tribe cannot intervene, its rights and interests in the Indian Child Welfare Act would go unrepresented,” Judge William Connolly wrote in the opinion issued by the high court June 26.

The court also said the tribe’s interest in preserving its culture and families, which the Indian Child Welfare Act is designed to advance, outweigh the state’s interests in enforcing a rule regarding attorneys.

“Ultimately, Congress enacted ICWA in response to the looming crisis facing Indian tribes – namely, that they would face extinction through the removal of their children through state-court, child-custody proceedings,” says the opinion from the high court.

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.

The high court pointed out that at the time the law was passed, about 90 percent of Indian children adopted were placed in non-Indian homes.

The figure now is closer to 60 percent, said Terry Cross, executive director of the Oregon-based National Indian Child Welfare Association.

Nationally, tribes intervene in 20 percent to 30 percent of child-welfare cases, and it is common for non-attorneys to file the motions, Cross said.

A message left for Rager was not immediately returned June 26. Judges normally do not comment on cases in which they are personally named.

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