|
(Cite
as: 277 Neb. 1023, 767 N.W.2d 98) |
Supreme
Court of Nebraska.
In
re Interest of ELIAS L., a child under 18 years of age.
State
of Nebraska, appellee,
v.
Jennifer
M. and Michael L., appellees,
and
the
Ponca Tribe of Nebraska, appellant.
In
re Interest of Evelyn M., a child under 18 years of age.
State
of Nebraska, appellee,
v.
Jennifer
M., appellee,
and
the
Ponca Tribe of Nebraska, appellant.
Nos.
S-08-1182, S-08-1183.
June
26, 2009.
**99
Syllabus
by the Court
*1023
1. Statutes:
Appeal and Error.
Statutory interpretation presents a question of law, which an appellate court
decides independently of the determination made by the lower court.
2.
Interventions:
Pleadings: Appeal and Error.
In considering a motion to intervene, an appellate court assumes that the
petition's allegations are true.
3.
Juvenile
Courts: Appeal and Error.
An appellate court reviews juvenile cases de novo on the record and reaches
conclusions independently of the juvenile court's findings.
4.
Federal
Acts: States.
Generally, federal law preempts state law when it conflicts with a federal
statute, when a state law does major damage to clear and substantial federal
interests, or when the U.S. Congress explicitly declares federal legislation to
have a preemptive effect.
5.
Indian
Child Welfare Act: Jurisdiction.
When the state law affects Indian tribes, state jurisdiction over an action or
issue is preempted if it interferes or is incompatible with federal and tribal
interests reflected in federal law, unless the state interests at stake are
sufficient to justify the assertion of state authority.
*1024
6. Indian
Child Welfare Act: Attorneys at Law.
The requirement that an Indian tribe be represented by a Nebraska licensed
attorney in accord with Neb.Rev.Stat. ? 7-101 (Reissue 2007) is preempted in the
narrow context of state court child custody proceedings under the federal and
state Indian Child Welfare Act.
Brad
S. Jolly, of Smith & Jolly, L.L.C., Denver CO, for appellant.
No
appearance for appellees.
Sarah
Helvey and LaShawn Young for amicus curiae Nebraska Appleseed Center for Law in
the Public Interest.
Rosalynd
J. Koob, of Heidman Law Firm, L.L.P., Sioux City, IA, for amicus curiae
Winnebago Tribe of Nebraska.
Mark
C. Tilden, Boulder, CO, of Native AmericanRights Fund, for amici curiae National
Indian Child Welfare Association et al.
Ben
Thompson, of Thompson Law Office, L.L.C., Omaha, for amicus curiae Omaha Tribe
of Nebraska.
Jennifer
Gaughan for amicus curiae Legal Aid of Nebraska.
HEAVICAN,
C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN,
JJ.
**100
CONNOLLY, J.
The
Ponca Tribe of Nebraska (Tribe) appeals from the county court's order denying
its motion to intervene in child custody proceedings involving two children who
are members of the Tribe. The court denied the motion to intervene because an
attorney had not signed the motion. We reverse, and remand because the Tribe's
right to intervene under the federal Indian Child Welfare Act (ICWA)
FN1
preempts Nebraska's laws regulating the unauthorized practice of
law.FN2
FN1.
25 U.S.C. ?? 1901 to 1963 (2006).
FN2.
See Neb.Rev.Stat. ?? 7-101 to 7-116 (Reissue 2007).
The
Nebraska Department of Health and Human Services filed two separate petitions in
the Dakota County Court *1025
alleging that Elias L. and Evelyn M., both children of Jennifer M., are children
in need of assistance under Neb.Rev.Stat. ? 43-247(3)(a) (Reissue 2008). Because
the children are ?Indian children? under both ICWA and the Nebraska
ICWA,FN3
the Tribe was notified of the children's custody proceedings. The Tribe moved
for intervention under ? 1911(c), which provides that ?[i]n any State court
proceeding for the foster care placement of, or termination of parental rights
to, an Indian child, the Indian custodian of the child and the Indian child's
tribe shall have a right to intervene at any point in the proceeding.?
FN4
FN3.
Neb.Rev.Stat. ?? 43-1501 to 43-1516 (Reissue 2008).
FN4.
Accord ? 43-1504(3).
Jill
Holt, the Tribe's ICWA specialist and an employee of the Tribe's Department of
Social Services, and the Tribe's representative, filed the motion. No party
objected. Yet, on October 9, 2008, the court refused to let the Tribe intervene.
It ruled that the motion ?is not filed in the Court's files pursuant to ... ?
7-101.?
The
court recognized that the Tribe had a right to intervene under ICWA and the
Nebraska ICWA but determined that Holt was not an attorney licensed by the
Nebraska Supreme Court to practice law in the State of Nebraska. The court
stated that it ?is charged with the duty to enforce the prohibition against the
practice of law without a license.? Because an attorney licensed to practice in
Nebraska had not filed the motion, the court refused to recognize the
motion.
The
Tribe retained legal counsel and appealed. The Tribe assigns that the county
court erred in concluding that ? 7-101 prohibits it from intervening in an ICWA
and Nebraska ICWA child custody proceeding without being represented by a
Nebraska licensed attorney. The Tribe also assigns that the court erred in
failing to conclude that ? 1911(c), which gives an Indian child's tribe the
right to intervene in an ICWA proceeding, preempts ? 7-101 under the Supremacy
Clause of the U.S. Constitution.
[1][2][3]
Statutory interpretation presents a question of law, which we decide
independently of the determination made *1026
by the lower court. FN5
In considering a motion to intervene, we assume that the petition's allegations
are true.FN6
Additionally, we review juvenile cases de novo on the record and reach
conclusions independently of the juvenile court's findings.FN7
FN5.
See In
re Adoption of Kenten H.,
272 Neb. 846, 725 N.W.2d 548 (2007).
FN6.
See Basin
Elec. Power Co-op. v. Little Blue N.R.D.,
219 Neb. 372, 363 N.W.2d 500 (1985).
FN7.
See In
re Interest of Tyler F.,
276 Neb. 527, 755 N.W.2d 360 (2008).
**101
The federal ICWA and state ICWA are silent regarding whether a tribe may appear
in court through a nonlawyer representative. Nebraska law allows plaintiffs ?the
liberty of prosecuting, and defendants ... the liberty of defending,?
themselves.FN8
But Nebraska does limit nonlawyer representation. Section 7-101 provides
that
FN8.
? 7-110.
no
person shall practice as an attorney or counselor at law, or commence, conduct
or defend any action or proceeding to which he is not a party, either by using
or subscribing his own name, or the name of any other person, or by drawing
pleadings or other papers to be signed and filed by a party, in any court of
record of this state, unless he has been previously admitted to the bar by order
of the Supreme Court of this state.... It is hereby made the duty of the judges
of such courts to enforce this prohibition.
Applying
? 7-101, the county court refused to recognize the Tribe's motion to intervene
because a Nebraska licensed attorney did not file the motion. But the Tribe
argues that federal law preempts any Nebraska law which requires an attorney to
represent the Tribe in ICWA proceedings.
[4][5]
Generally, federal law preempts state law when it ?conflicts with a federal
statute,? FN9
when a state law does ?major damage to clear and substantial federal interests,?
FN10
or when *1027
the U.S. Congress explicitly declares federal legislation to have a preemptive
effect.FN11
But that is not the preemption standard here. When the state law affects Indian
tribes, courts must make ? ?a particularized inquiry into the nature of the
state, federal, and tribal interests at stake.? ? FN12
In such cases, state jurisdiction over an action or issue is preempted if ?it
interferes or is incompatible with federal and tribal interests reflected in
federal law, unless the state interests at stake are sufficient to justify the
assertion of state authority.? FN13
FN9.
Zannini
v. Ameritrade Holding Corp.,
266 Neb. 492, 503, 667 N.W.2d 222, 232 (2003) (citing Eyl
v. Ciba-Geigy Corp.,
264 Neb. 582, 650 N.W.2d 744 (2002)).
FN10.
Collett
v. Collett,
270 Neb. 722, 728, 707 N.W.2d 769, 774 (2005).
FN11.
See Zannini,
supra
note 9.
FN12.
New
Mexico v. Mescalero Apache Tribe,
462 U.S. 324, 333, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983) (quoting White
Mountain Apache Tribe v. Bracker,
448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980)).
FN13.
New
Mexico, supra,
note 12, 462 U.S. at 334, 103 S.Ct. 2378. See, also, In
re N.N.E.,
752 N.W.2d 1 (Iowa 2008); State
ex rel. Juv. Dept. v. Shuey,
119 Or.App. 185, 850 P.2d 378 (1993).
Here,
we first determine whether the state law requiring that an attorney represent
the Tribe in ICWA proceedings ?interferes or is incompatible with? the Tribe's
right to intervene. If an interference or incompatibility appears, then we must
balance the competing state and tribal interests.
The
Tribe argues that conditioning tribal intervention on whether an attorney
represents it would significantly interfere with its ability to intervene. The
Tribe claims it lacks sufficient financial resources to retain legal counsel to
represent it in state court child custody proceedings governed by ICWA. By
implication, if the Tribe cannot intervene, its rights and interests in the
Indian child would go unrepresented.
The
Tribe claims that its primary source of funding for child and family services
comes from federal grants and contracts. But some doubt exists whether a tribe
can **102
use federal child welfare funds to support legal representation for the tribe in
child custody proceedings.FN14
The Tribe claims that it lacks financial resources outside those provided by the
federal government and cannot independently pay for legal counsel. The Tribe
claims that because of these economic barriers, any *1028
requirement that tribes appear with legal counsel interferes with the Tribe's
right to intervene. We find the Tribe's argument persuasive.
FN14.
See, e.g., ? 1931(a)(5) and (8); 25 C.F.R. ?? 89.40 and 89.41 (2008). See, also,
In
re N.N.E., supra
note 13; Shuey,
supra
note 13.
[6]
Federally recognized Indian tribes, while possessing unique attributes of
sovereignty and self-government,FN15
lack many of the revenue-generating options open to federal and state
governments.FN16
And we must be cognizant of the hardship that would occur if we were to require
tribes to hire attorneys in ICWA matters. Requiring legal counsel to represent
the Tribe in ICWA proceedings would place additional financial burdens on the
Tribe which would directly interfere with its right to intervene. Thus, we
conclude that enforcement of ? 7-101 in this case interferes and is incompatible
with the federally granted tribal right of intervening in child custody
proceedings governed by ICWA.
FN15.
United
States v. Wheeler,
435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) (superseded by statute as
stated in U.S.
v. Weaselhead,
156 F.3d 818 (8th Cir.1998)).
FN16.
See, generally, 42 C.J.S. Indians
? 140 (2007); Atkinson
Trading Co. v. Shirley,
532 U.S. 645, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001).
[7]
We next address whether the State's interest in enforcement of the
representation requirement in ICWA proceedings outweighs tribal interests in
intervening in such proceedings. Because requiring legal counsel as a condition
of intervention under ICWA would, at a minimum, burden the Tribe's right of
intervention, the State can require legal representation only if the State's
interests outweigh those of the Tribe and the United States.FN17
FN17.
New
Mexico, supra
note 12.
Obviously,
the State has a legitimate interest in requiring groups and associations to be
represented by an attorney. Section 7-101 ensures that those appearing in
judicial proceedings are familiar with substantive and procedural requirements
and protocols, thus ensuring adequate representation. FN18
By limiting the practice of law to only licensed attorneys, the State's goal is
to protect the public from any potential harm caused by *1029
the actions of nonlawyers engaging in the unauthorized practice of
law.FN19
FN18.
See Shuey,
supra
note 13.
FN19.
Neb. Ct. R., ch. 3, art. 10, Statement of Intent.
Yet,
Nebraska law allows individuals to represent themselves and participate in
trials and legal proceedings in their own behalf.FN20
And, an employee of an organization can engage in certain acts that would
normally constitute the practice of law if done for the sole benefit of the
organization.FN21
Additionally, a nonlawyer may engage in the authorized practice of law to the
extent allowed by a published opinion or rule of this court.FN22
So, while the general rule may be that only an individual can appear pro se in
his or her own **103
behalf,FN23
statutes and court rules provide some exceptions.
FN20.
? 7-110.
FN21.
Neb. Ct. R. ?? 3-1001 and 3-1004(N).
FN22.
Neb. Ct. R. ? 3-1004(W).
FN23.
Compare ?? 7-101 and 7-110. See, also, Osborn
v. United States Bank,
22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824).
Furthermore,
the Tribe has significant interests in intervening in ICWA proceedings. Congress
passed ICWA in response to the alarmingly high number of Indian children being
removed from their families and placed in non-Indian adoptive or foster homes by
state welfare agencies and courts.FN24
At the time of ICWA's enactment, 25 to 35 percent of all Indian children were
removed and separated from their tribes and families to be placed in adoptive or
foster homes.FN25
To make matters worse, about 90 percent of Indian adoption placements occurred
in non-Indian homes away from their culture and community.FN26
FN24.
Mississippi
Choctaw Indian Band v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989).
FN25.
Id.
FN26.
Id.
Commenting
on the loss of Indian culture, Congress noted that ?[c]ontributing to this
problem has been the failure of State officials, agencies, and procedures to
take into account the special problems and circumstances of Indian families and
*1030
the legitimate interest of the Indian tribe in preserving and protecting the
Indian family as the wellspring of its own future.? FN27
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. Congress concluded
that ?there is no resource that is more vital to the continued existence and
integrity of Indian tribes than their children.? FN28
Thus, Congress designed the procedural and substantive standards of ICWA to ?
?protect the rights of the Indian child as an Indian and the rights of the
Indian community and tribe in retaining its children in its society.? ?
FN29
The Tribe's right to intervene in state court child custody proceedings provides
a means to achieve this goal.
FN27.
H.R.Rep. No. 95-1386, at 19 (1978), reprinted
in
1978 U.S.C.C.A.N. 7530, 7541. See, also, ? 1901(5).
FN28.
? 1901(3).
FN29.
See Holyfield,
supra
note 24, 490 U.S. at 37, 109 S.Ct. 1597.
Moreover,
other state courts have concluded that the tribal interests articulated in ICWA
are of the highest order, outweighing other state interests. The Utah Supreme
Court stated that ?[t]he protection of th[e] tribal interest [in its children]
is at the core of the ICWA.? FN30
The Iowa Supreme Court, concluding that an Indian tribe may represent itself in
ICWA proceedings, determined that the state's interest in requiring adequate
representation ? ?cannot compare with a tribe's interests in its children and
its own future existence.? ? FN31
FN30.
Matter
of Adoption of Halloway,
732 P.2d 962, 969 (Utah 1986).
FN31.
In
re N.N.E., supra
note 13 at 12.
And,
in the narrow context of ICWA proceedings, the State's interests are not
necessarily compromised by allowing the Tribe to be represented by a nonlawyer.
In this case, the Tribe has authorized Holt, its ICWA specialist, to appear on
its behalf and has entrusted her with representing its interests in ICWA
proceedings. Her responsibilities require familiarity with the procedural and
substantive requirements of ICWA, and familiarity with other social **104
service agencies that are a part of the *1031
state child custody proceedings. In sum, the Tribe has authorized her to speak
for it, and she is familiar with the applicable law and procedures.
[8]
We conclude that tribal participation in state custody proceedings involving
Indian children is essential to achieving the goals of ICWA. The tribal
interests represented by ICWA and the Tribe's right to intervene under ? 1911(c)
and ? 43-1504(3) outweigh the State interests represented by ? 7-101. Under the
applicable preemption test, the scale tips in favor of tribal interests. Thus,
we determine that federal law preempts the requirement of ? 7-101 that the Tribe
be represented by a Nebraska licensed attorney in these ICWA proceedings. On
remand, the court shall allow the Tribe's designated representative to fully
participate in further proceedings.
Reversed
and remanded with directions.