## Facts

- Nebraska filed separate juvenile petitions alleging that Elias L. and Evelyn M. were children in need of assistance under Neb. Rev. Stat. § 43-247(3)(a).
- Both children were “Indian children” and members of the Ponca Tribe of Nebraska, triggering the federal and Nebraska Indian Child Welfare Acts (ICWA).
- The Tribe received notice and sought to intervene under 25 U.S.C. § 1911(c), which grants tribes a right to intervene at any point in covered state child-custody proceedings.
- The intervention motion was signed and filed by the Tribe’s ICWA specialist, a nonlawyer tribal employee designated to represent the Tribe.
- The county court denied intervention solely because the motion was not filed by a Nebraska-licensed attorney, citing Neb. Rev. Stat. § 7-101 and enforcement of unauthorized-practice rules.
- The Tribe retained counsel and appealed the denial to the Nebraska Supreme Court.

## Issues

1. Whether Nebraska’s attorney-licensing requirement (Neb. Rev. Stat. § 7-101) may be applied to bar a tribe from intervening in an ICWA child-custody proceeding when the tribe’s filing is made through a nonlawyer tribal representative.
2. Whether the tribe’s federal right to intervene under 25 U.S.C. § 1911(c) preempts Nebraska’s unauthorized-practice-of-law restrictions in this context.

## Decision

- The Nebraska Supreme Court reversed and remanded with directions.
- The court held that, in the limited setting of state child-custody proceedings governed by ICWA, federal law preempts Nebraska’s requirement that the Tribe appear only through a Nebraska-licensed attorney.
- The county court erred by denying intervention based solely on the absence of a Nebraska-licensed attorney’s signature and appearance.

## Legal Principles

- Federal law preempts state law when it conflicts with federal statutes, when state law causes major damage to clear and substantial federal interests, or when Congress expressly provides for preemption.
- In matters affecting tribes, state authority is preempted if it interferes with or is incompatible with federal and tribal interests reflected in federal law, unless state interests are sufficient to justify the asserted authority.
- ICWA grants an Indian child’s tribe a right to intervene at any point in covered state proceedings, and a state may not apply general court-representation rules in a way that effectively defeats that federal right.
- Nebraska’s attorney-licensing requirement is preempted in the narrow context of ICWA child-custody proceedings to the extent it bars tribal intervention through a designated nonlawyer representative.

## Conclusion

The court held that ICWA’s statutory right of tribal intervention cannot be nullified by applying Nebraska’s attorney-licensing and unauthorized-practice rules to exclude a tribe that appears through a nonlawyer representative in ICWA-governed child-custody proceedings.


In re Interest of Elias L., 277 Neb. 1023, 767 N.W.2d 98 (Neb. 2009)