Nebraska Supreme Court transfers child case to Omaha Tribe

Monday, December 17, 2012  

The Nebraska Supreme Court on Friday transferred an Indian Child Welfare Act to the Omaha Tribe.

Lower courts previously said the tribe waited too long to intervene in proceedings involving two siblings. But the Nebraska Supreme Court noted that the tribe joined as soon as termination of parental rights proceedings began in state court.

"Here, the relevant proceedings commenced on February 7, 2011, when the state filed its motions to terminate parental rights. The tribe intervened and requested transfer of both cases by March 1," the decision stated.

The decision also noted that a lower court determined that it was in the "best interests" of the children to keep the case from the tribe. The children had been out of their parents' home for two years and were apparently kept in a foster home that respected their tribal heritage, according to the ruling.

The Nebraska Supreme Court, however, said state courts can't use the "best interests" test to avoid one of the main goal of ICWA -- to allow tribes to determine the fate of their children. A prior case on the issue was overruled.

"Stated another way, recognizing best interests as 'good cause' for denying transfer permits state courts to decide that it is not in the best interests of Indian children to have a tribal court determine what is in their best interests. By enacting ICWA, Congress clearly stated otherwise," the decision stated.

Chief Justice Michael Heavican, a former U.S. Attorney General for Nebraska, filed a dissent. He said the tribe's involvement came too late and so it would be in the best interests of the children to keep the case in the state court system.

Get the Story:
Decision on 2 sisters' future will be left to tribe (The Omaha World-Herald 12/15)

Nebraska Supreme Court Decision:
In re Interest of Zylena R. and Adrionna R (December 14, 2012)