Media Contact

Sam Petto, ACLU of Nebraska
Misty Flowers, Nebraska Indian Child Welfare Coalition, Inc.

December 4, 2023

LINCOLN, Neb. – Two Nebraska organizations are weighing in on an appeal of a juvenile court case that terminated a Native American mother’s parental rights.

On Friday, the Nebraska Indian Child Welfare Coalition (NICWC), Inc., and the American Civil Liberties Union (ACLU) of Nebraska filed an amicus brief in the case before the Nebraska Court of Appeals. An amicus brief essentially offers supportive information for  judges to consider as they weigh legal arguments.

The Indian Child Welfare Act (ICWA) is at the center of both the brief and the mother’s appeal. The law - recently upheld by the U.S. Supreme Court - requires state officials to make active efforts to keep Native families together. Among other provisions, it says courts cannot terminate Native parents’ parental rights or place Native youth 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 to their family and related proceedings. In her appeal, the mother argues that testimony from a clinician fails to meet ICWA’s requirement for an expert witness unless the clinician also has a thorough understanding of prevailing 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.

The appeal is set for a hearing on Dec. 12.

Misty Flowers, executive director of NICWC, and member of the Santee Sioux Nation, made this statement on today’s filing:

“NICWC is contacted frequently about ICWA qualified expert witnesses, and we always defer to tribal qualified expert witnesses from the child’s Tribe,” Flowers said. “If the Tribe does not have a qualified expert witness available, we can help fill that role. We have provided qualified expert witness training for several years for tribal members interested in serving as one for their Tribe. We encourage and support the use of qualified expert witnesses from the child’s Tribe who can testify to the prevailing social and cultural standards of the child’s 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.”

ACLU of Nebraska Legal and Policy Counsel Joy Kathurima made this statement on today’s filing:

“As Justice Gorsuch wrote in June, ICWA did not come out of a vacuum,” Kathurima said. “This law was a 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. We hope our 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.” 

Congress passed ICWA in 1978 to address a nationwide crisis of child welfare agencies forcibly removing Indigenous children from their homes and placing them in non-Native homes at disproportionate rates, a continuation of family separation practices that began far earlier in U.S. history.

Last year, the ACLU of Nebraska joined its national office and 11 other ACLU state affiliates in filing an amicus brief with the U.S. Supreme Court that urged the court to uphold ICWA’s constitutionality. The justices upheld ICWA 7-2 in June of this year. 

Nebraska has similar state-level protections in the Nebraska Indian Child Welfare Act (NICWA).