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Indian child welfare coalition and ACLU of Nebraska file brief in Lincoln case on appeal

The Lincoln Journal Star - 12/7/2023

Dec. 4—A civil liberties group and Indian child welfare coalition have filed a "friend of the court" brief in a Lancaster County case involving the termination of a Native mother's parental rights to her sons.

The Nebraska Court of Appeals is set to hear oral arguments in the case involving the Indian Child Welfare Act later this month.

The Nebraska Indian Child Welfare Coalition and the American Civil Liberties Union of Nebraska aren't parties to the case, but filed an amicus brief in which they provide information or argument for the judges to consider as they weigh the legal arguments.

In a decision this summer, the U.S. Supreme Court upheld the Indian Child Welfare Act, which requires state officials to make efforts to keep Native families together and says courts cannot terminate Native parents' parental rights or place Native youths in foster care without hearing testimony from a qualified expert witness.

Because both children in the case and their mother are enrolled or eligible for membership with the Oglala Sioux Tribe, the law applies in the case.

In the mother's appeal, her attorneys with Legal Aid of Nebraska argue that the Lancaster County Juvenile Court Judge Shellie Sabata's decision should be reversed because it wasn't in the children's best interest and wasn't "supported by qualified expert testimony."

At a formal hearing in April, the state presented the testimony of five witnesses, including mental health practitioners, a supervisor and a specialist with the Department of Health and Human Services and the foster parent.

They argue none was a qualified expert witness, who is meant to have expertise beyond normal social worker qualifications and knowledge of social and cultural standards of the Oglala Sioux Tribe.

NICWC and the ACLU of Nebraska's amicus brief discusses the expert witness requirement under ICWA and how it relates to Nebraska statute and Bureau of Indian Affairs regulations. It also raises a 2009 case where the Nebraska Court of Appeals determined a Department of Health and Human Services employee did not meet ICWA's expert witness requirement as she did not regularly provide services to Indigenous Nebraskans or have extensive knowledge of the Rosebud Sioux Tribe.

Misty Flowers, executive director of Nebraska Indian Child Welfare Coalition and a member of the Santee Sioux Nation, said the coalition frequently is contacted about Indian Child Welfare Act qualified expert witnesses, "and we always defer to tribal qualified expert witnesses from the child's tribe."

If one isn't available, the coalition can help fill that role, she said. And they have provided training for tribal members who want to serve in that role for their tribe.

"It is an important part of our work to educate, advocate and bring people together around ICWA compliance to protect the rights of Indian children and maintain their cultural connections," Flowers said.

Joy Kathurima, legal and policy counsel for ACLU of Nebraska, said as Justice Neil Gorsuch wrote in June, the Indian Child Welfare Act "did not come out of a vacuum."

She said it came in direct response to the forced mass removal of Native children from their families, tribes and tribal cultures.

"Especially given that context, the significance of qualified expert witness testimony in determining the best interests of a child cannot be overstated," Kathurima said.

She said they hope the brief "leads to an outcome that ensures state officials fully meet their obligation under ICWA to understand how this custody decision will impact these children and their access to cultural identity, language and heritage."

Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger

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