SUMMARY: Under its right to intervene in ICWA proceeding, a Tribe’s designated representative does not have to be authorized to practice law and may fully participate in proceedings.
The Ponce Tribe of Nebraska made a motion to intervene in child custody proceedings involving Indian children. The Tribe’s representative filing the motion is an ICWA specialist and not a licensed attorney. The court denied the motion on the basis that state law prohibited the unauthorized practice of law. The Tribe appealed.
The Nebraska Supreme Court reversed the court’s decision. It concluded that tribal interests in intervening in matters involving Indian children outweighed the State’s interest in protecting against the unauthorized practice of law. Under federal law, Tribes have the right to intervene at any point in a proceeding involving Indian children. The Supreme Court reasoned that although N.R.S. 7-101 prohibits non-attorneys from practicing law there already exist several exceptions and the use of ICWA specialists in place of attorneys would not necessarily compromise proceedings. The Supreme Court also noted that Indian tribes do not typically have the resources available to provide legal representation in child custody cases and that they have a compelling interest in ensuring their continuing existence and integrity.