Summary:
This is an appeal from the Separate Juvenile Court of Lancaster County. Manuel C. and Mateo S. were previously adjudicated as minors for purposes of § 43-247(3)(a), dealing with abuse and neglect allegations. A motion to terminate the parental rights of their mother, Amber S., was filed. The Red Lake Tribe of Chippewa Indians filed a motion to intervene, which was granted. The State then filed a motion to reconsider. Following a hearing, the motion to reconsider was granted and intervention denied. Amber appeals, and the tribe cross-appeals, the juvenile court’s denial of the tribe’s motion to intervene.
The questions presented by this appeal are (1) whether Amber and the tribe appeal from a final order and (2) whether Manuel and Mateo are children for purposes of the Indian Child Welfare Act (ICWA) and the Nebraska Indian Child Welfare Act (NICWA), where their biological mother is eligible for enrollment, but not yet a member of the tribe, and the tribe has indicated that it considers Amber to be a member of the tribe for purposes of ICWA.
Background
Manuel was born in January 2021, and Mateo was born in September 2019. Amber is the biological mother of Manuel and Mateo. The parental rights of the children’s biological father are not at issue in this appeal.
Following Manuel’s birth, the State sought to adjudicate Manuel and Mateo as a result of Amber’s admitted methamphetamine use, as well as a history of domestic violence between Amber and the children’s father. That petition was granted, and the children were removed from Amber’s care. Services were attempted, but the State ultimately sought termination in April 2022.
On July 8, 2022, Amber’s counsel filed a motion to continue, noting “there is reason to know the children are ICWA children” and “notification for the Indian Child’s tribe has not occurred.” Thereafter, the court ordered that notice be sent to the tribe, and such notice was served on July 22. The tribe sought intervention on August 16, which was initially granted on August 25.
That same day, the State filed a motion to reconsider the order granting the tribe’s motion to intervene. The juvenile court granted the motion to reconsider, and a hearing was held on the motion to intervene on August 26. At that hearing, the State argued that intervention should be denied because Manuel and Mateo were not Indian children for purposes of ICWA. The State conceded that the record produced at the hearing showed that Manuel and Mateo were eligible for membership in the tribe, but argued that there was no evidence presented that Amber, their biological parent, was a member of the tribe. Upon follow up, the tribe clarified in an email that “because Amber is eligible for enrollment,” she was considered “a member for purposes of being accorded the protections of ICWA.”
A representative of the tribe testified at this hearing that Amber was “eligible for enrollment for the tribe. When she becomes enrolled, then she is a citizen of this nation…Amber…and her children are all eligible for enrollment, yes.” The representative further testified that there was no distinction between “enrollment” and “membership.” The representative’s testimony continued:
Q [I]s it Red Lake as a sovereign nation, are they the ones who get to decide who is considered an Indian child or Indian member?
A Yes.
Q And is it also the tribe who consider — can decide who they consider an Indian member for being accorded the protections of ICWA?
A Yes, it is up to the tribe.
Q And is it your understanding that in [this] case that the tribe has considered them members for purposes of being accorded the protections of ICWA?
A Yes.
Q And so, for ICWA purposes, [Amber] and her children are considered members to be accorded that protection?
A Yes.
Q As we sit here today, Amber…is not an enrolled member of your, of the Red Lake Nation, correct?
A Correct.
At the hearing on intervention, counsel for the tribe acknowledged that “Amber is not an enrolled member, but I believe we need to look behind the curtain in this particular case.” Counsel later noted that “this particular case…doesn’t fit the definition, but…clearly it meets the spirit of the law.”
In denying the motion to intervene, the juvenile court noted that Amber was “eligible” for enrollment and had begun that process. The court further acknowledged that the tribe and Amber both encouraged a finding that Amber was a member as a function of the “‘spirit of the law.’” The juvenile court declined that invitation, noting that its
sworn duty…is to apply laws exactly as they are written. While the children may become Indian Children under the Act at some point in the future, and the tribe wishes to extend ICWA protections to them today, this Court simply cannot embellish or ignore the words of federal and state legislation to make the requested findings.
Accordingly, the juvenile court vacated its order granting the tribe’s motion to intervene. Amber appeals, and the tribe cross-appeals
Assignments of Error
On appeal and cross-appeal, Amber and the tribe both assign that the juvenile court erred in (1) finding that ICWA and NICWA did not apply to Amber and her children and (2) vacating its order granting the tribe’s motion to intervene.
Final Order:
This case presents an issue regarding appellate jurisdiction. In a juvenile case, as in any other appeal, before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. When an appellate court is without jurisdiction to act, the appeal must be dismissed.
For an appellate court to acquire jurisdiction of an appeal, there must be a final order or judgment entered by the court from which the appeal is taken; conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders. Under § 25-1902, the four types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right in an action and which in effect determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered, and (4) an order denying a motion for summary judgment when such motion is based on the assertion of sovereign immunity or the immunity of a government official.
The Nebraska Supreme Court has previously indicated that a proceeding before a juvenile court is a special proceeding for appellate purposes. Thus, the Court focused its analysis upon the second category of final orders set forth in § 25-1902. And as provided by that section, to be final and appealable, an order in a special proceeding must affect a substantial right. A substantial right is an essential legal right, not a mere technical right. A substantial right is affected if an order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which the appeal is taken.
In In re Interest of Brittany C. et al., the Nebraska Court of Appeals concluded that the denial of the biological mother’s request to transfer jurisdiction to a tribal court was final and appealable. Specifically, the Court of Appeals noted that the order affected a substantial right because it was
not merely a step or proceeding within the overall action. If the request were granted, the pending proceedings would stop and these matters would be transferred to another forum. While a tribal court in some respects may resemble a judicial forum based on Anglo-Saxon judicial traditions, it may differ in other respects consistent with the tribal court’s Native American traditions…[And Congress’] findings [with regard to the purposes of ICWA] emphasize Congress’ determination that a tribal court may provide the parent and the child with significant advantages inherent in the recognition and implementation of Native American customs and traditions.
But in In re Interest of Jassenia H., the Nebraska Supreme Court found that a juvenile court’s determination that ICWA and NICWA applied was not a final order. The Court observed that
all of the heightened protections afforded by ICWA and NICWA apply prospectively to future determinations in the proceedings. In the present case, there is no indication that these protections have had any effect upon the adjudication proceedings. From the record, it does not appear that the juvenile court has entered a preadjudication detention order…And it is clear that [the child] had not yet been adjudicated at the time ICWA and NICWA were found applicable. Further, we see no motion to transfer jurisdiction to a tribal court or any indication that the…tribe has sought to intervene.
Until the court takes action to implement or contravene the heightened protections afforded by ICWA and NICWA in some fashion, we cannot conclude that the mere determination of applicability affects a substantial right. The juvenile court declared only that these laws apply—it did not implement them in any way affecting the child’s substantial rights. The court’s order was interlocutory and until it applied the law in some adjudicative or dispositive action, functioned merely as an advisory opinion.
The Nebraska Supreme Court concluded that the order denying intervention is final. ICWA and NICWA provide the tribe has a right, in certain situations, to intervene and participate in proceedings involving Indian children. NICWA recognizes that “Indian tribes have a continuing and compelling governmental interest in an Indian child.”
In reaching this conclusion, the Court found the appeal to be more similar to In re Interest of Brittany C. than to In re Interest of Jassenia H. In the latter case, the juvenile court made a finding regarding the future applicability of IWCA, but did not otherwise apply it. Conversely, in In re Interest of Brittany C., the juvenile court applied ICWA and denied the request to transfer the action to tribal court, and thus took action based on its conclusion that ICWA applied. Finally, the Court noted that the denial of a motion to intervene is generally a final and appealable order in Nebraska. The denial of the right to intervene under ICWA affects a substantial right. As such, the tribe and Amber appeal from a final order.
Applicability of ICWA
The tribe and Amber generally assert it is the tribe alone that makes determinations regarding a child’s membership, a child’s eligibility for membership, or a parent’s membership, and they further argue enrollment in a tribe is not dispositive as to the issue of membership in a tribe. As such, they contend the juvenile court erred when it found that the children were not Indian children despite the tribe’s assertion that they were.
Section 43-1502 sets forth that the purpose of NICWA is
to clarify state policies and procedures regarding the implementation by the State of Nebraska of the federal Indian Child Welfare Act. It shall be the policy of the state to cooperate fully with Indian tribes in Nebraska in order to ensure that the intent and provisions of the federal Indian Child Welfare Act are enforced. This cooperation includes recognition by the state that Indian tribes have a continuing and compelling governmental interest in an Indian child whether or not the Indian child is in the physical or legal custody of a parent, an Indian custodian, or an Indian extended family member at the commencement of an Indian child custody proceeding or the Indian child has resided or is domiciled on an Indian reservation. The state is committed to protecting the essential tribal relations and best interests of an Indian child by promoting practices consistent with the federal Indian Child Welfare Act and other applicable law designed to prevent the Indian child’s voluntary or involuntary out-of-home placement.
The Nebraska Supreme Court has previously held that a party to a proceeding who seeks to invoke a provision of NICWA has the burden to show that the act applies in the proceeding. § 43-1504(3) states that “in any state court proceeding for the…termination of parental rights to an Indian child, the Indian custodian of the child and the Indian child’s tribe or tribes shall have a right to intervene at any point in the proceeding…” “Indian child” is defined to mean “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”
In this case, there is no allegation that Manuel and Mateo are themselves members of the tribe. As such, ICWA and NICWA apply only if the children are eligible for membership in the tribe and if one of their biological parents—in this case, their mother, Amber—is also a member of the tribe. The juvenile court concluded that Amber was not a member, and as such, the children were not “Indian children,” and that the tribe’s motion to intervene should be denied.
The central dispute here is whether Amber is a member of the tribe when the only evidence in the record was that Amber was eligible for membership, that she had begun the enrollment process, and that the tribe “considered” Amber to be a member for purposes of ICWA. The tribe and Amber assert on appeal that the juvenile court and the State have incorrectly suggested enrollment is dispositive to the question of membership and that the tribe itself is the entity entitled to identify its members.
The Court agreed that a tribe has the sole “jurisdiction and authority” to make a decision as to who might be a member of the tribe, but noted it must still determine whether the tribe has made such a decision with respect to Amber. The Court recognized that enrollment is not the only means of establishing someone’s membership in a tribe. Although enrollment is not wholly dispositive to membership, it is relevant here, where the tribe’s representative testified at the hearing on the motion to intervene that for her purposes, there was no distinction between “enrollment” and “membership,” and that Amber would be a “citizen” of the tribe, “when she becomes enrolled.” The juvenile court indicated that Amber was not enrolled—rather than finding that Amber was not a member—when it found that the children were not “Indian children.”
The Nebraska Supreme Court did not give weight to the juvenile court’s finding on appeal. Rather, the Court reviewed the decision of the juvenile court de novo, and the tribe has the burden to show that ICWA and NICWA are applicable. In that de novo review, the Court noted that the tribe failed to introduce any other evidence showing that Amber was a member of the tribe; rather, the tribe offered only evidence that it “considered” Amber, Manuel, and Mateo to be members for purposes of ICWA.
Evidence that the tribe “considered” Amber a member for purposes of ICWA is insufficient. The plain language of § 43-1503(8) provides as relevant that an “Indian child” must have a biological parent who is a member of a tribe. The evidence adduced in the juvenile court shows that Amber is not currently a member of the tribe; the children, in turn, do not have a biological parent that is a member of the tribe. While their status may change in the future, Manuel and Mateo are not currently Indian children for purposes of ICWA and NICWA. As such, ICWA and NICWA are inapplicable and the juvenile court did not err in denying the tribe’s motion to intervene.
Conclusion
The decision of the juvenile court is affirmed.