In re Interest of Elias L.

the Agency’s other assignments of error and conclude they
lack merit.
We conclude that § 18-2142.01(2) forecloses the Agency
from contesting the redevelopment contract’s validity. Because
the contract is valid, PRP acquired YMCA’s interest in the con-
tract through the trustee’s sale. All other redevelopers entitled
to TIF funds under the contract have disclaimed or forfeited
their interest in the funds. We conclude that the district court
correctly determined that PRP, as YMCA’s successor in inter-
est, should have the TIF funds.
A ffirmed.
Wright, J., not participating.
In Re InTeResT oF elIAs l. 	1023
Cite as 277 neb. 1023
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.
767 n.W.2d 98
Filed June 26, 2009. 	nos. s-08-1182, s-08-1183.
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 inter-
vene, 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 sub-
stantial 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

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 Acts.
Appeals from the County Court for Dakota County: kurt
rAger, Judge. Reversed and remanded with directions.
Brad s. Jolly, of smith & Jolly, l.l.C., 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., for amicus
curiae Winnebago Tribe of nebraska.
Mark C. Tilden, of native American Rights Fund, for amici
curiae national Indian Child Welfare Association et al.
Ben Thompson, of Thompson law office, l.l.C., 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.
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)1 preempts nebraska’s laws regulat-
ing the unauthorized practice of law.2
The nebraska Department of Health and Human services
filed two separate petitions in the Dakota County Court
1 25 U.s.C. §§ 1901 to 1963 (2006).
2 see neb. Rev. stat. §§ 7-101 to 7-116 (Reissue 2007).
1024 	277 neBRAsKA RePoRTs

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,3
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.”4
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 pro-
ceeding, preempts § 7-101 under the supremacy Clause of the
U.s. Constitution.
[1-3] statutory interpretation presents a question of law,
which we decide independently of the determination made
3 neb. Rev. stat. §§ 43-1501 to 43-1516 (Reissue 2008).
4 Accord § 43-1504(3).
In Re InTeResT oF elIAs l. 	1025
Cite as 277 neb. 1023

by the lower court.5 In considering a motion to intervene, we
assume that the petition’s allegations are true.6 Additionally, we
review juvenile cases de novo on the record and reach conclu-
sions independently of the juvenile court’s findings.7
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.8 But nebraska does limit nonlawyer representa-
tion. section 7-101 provides that
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 attor-
ney 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 “con-
flicts with a federal statute,”9 when a state law does “major
damage to clear and substantial federal interests,”10 or when
5 see In re Adoption of Kenten H., 272 neb. 846, 725 n.W.2d 548 (2007).
6 see Basin Elec. Power Co-op v. Little Blue N.R.D., 219 neb. 372, 363
n.W.2d 500 (1985).
7 see In re Interest of Tyler F., 276 neb. 527, 755 n.W.2d 360 (2008).
8 § 7-110.
9 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)).
10 Collett v. Collett, 270 neb. 722, 728, 707 n.W.2d 769, 774 (2005).
1026 	277 neBRAsKA RePoRTs

the U.s. Congress explicitly declares federal legislation to have
a preemptive effect.11 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.’”12 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.”13
Here, we first determine whether the state law requiring that
an attorney represent the Tribe in ICWA proceedings “inter-
feres or is incompatible with” the Tribe’s right to intervene. If
an interference or incompatibility appears, then we must bal-
ance 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 impli-
cation, 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 con-
tracts. But some doubt exists whether a tribe can use federal
child welfare funds to support legal representation for the
tribe in child custody proceedings.14 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
11 see Zannini, supra note 9.
12 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)).
13 New Mexico, supra note 12, 462 U.s. at 334. 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).
14 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.
In Re InTeResT oF elIAs l. 	1027
Cite as 277 neb. 1023

requirement that tribes appear with legal counsel interferes
with the Tribe’s right to intervene. We find the Tribe’s argu-
ment persuasive.
Federally recognized Indian tribes, while possessing unique
attributes of sovereignty and self-government,15 lack many
of the revenue-generating options open to federal and state
governments.16 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.
We next address whether the state’s interest in enforce-
ment 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.17
obviously, the state has a legitimate interest in requir-
ing groups and associations to be represented by an attorney.
section 7-101 ensures that those appearing in judicial proceed-
ings are familiar with substantive and procedural requirements
and protocols, thus ensuring adequate representation.18 By lim-
iting the practice of law to only licensed attorneys, the state’s
goal is to protect the public from any potential harm caused by
15 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)).
16 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).
17 New Mexico, supra note 12.
18 see Shuey, supra note 13.
1028 	277 neBRAsKA RePoRTs

the actions of nonlawyers engaging in the unauthorized prac-
tice of law.19
Yet, nebraska law allows individuals to represent themselves
and participate in trials and legal proceedings in their own
behalf.20 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.21 Additionally, a
nonlawyer may engage in the authorized practice of law to the
extent allowed by a published opinion or rule of this court.22
so, while the general rule may be that only an individual can
appear pro se in his or her own behalf,23 statutes and court rules
provide some exceptions.
Furthermore, the Tribe has significant interests in interven-
ing 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 adop-
tive or foster homes by state welfare agencies and courts.24 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.25 To make
matters worse, about 90 percent of Indian adoption place-
ments occurred in non-Indian homes away from their culture
and community.26
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
19 neb. Ct. R., ch. 3, art. 10, statement of Intent.
20 § 7-110.
21 neb. Ct. R. §§ 3-1001 and 3-1004(n).
22 neb. Ct. R. § 3-1004(W).
23 Compare §§ 7-101 and 7-110. see, also, Osborn v. United States Bank, 22
U.s. (9 Wheat.) 738, 6 l. ed. 204 (1824).
24 Mississippi Choctaw Indian Band v. Holyfield, 490 U.s. 30, 109 s. Ct.
1597, 104 l. ed. 2d 29 (1989).
25 Id.
26 Id.
In Re InTeResT oF elIAs l. 	1029
Cite as 277 neb. 1023

the legitimate interest of the Indian tribe in preserving and pro-
tecting the Indian family as the wellspring of its own future.”27
Ultimately, Congress enacted ICWA in response to the looming
crisis facing Indian tribes—namely, that they would face extinc-
tion 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.”28 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 chil-
dren in its society.’”29 The Tribe’s right to intervene in state
court child custody proceedings provides a means to achieve
this goal.
Moreover, other state courts have concluded that the tribal
interests articulated in ICWA are of the highest order, out-
weighing 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.”30 The Iowa supreme Court, conclud-
ing that an Indian tribe may represent itself in ICWA proceed-
ings, 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.’”31
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 famil-
iarity with other social service agencies that are a part of the
27 H.R. Rep. no. 95-1386, at 19 (1978), reprinted in 1978 U.s.C.C.A.n.
7530, 7541. see, also, § 1901(5).
28 § 1901(3).
29 see Holyfield, supra note 24, 490 U.s. at 37.
30 Matter of Adoption of Halloway, 732 P.2d 962, 969 (Utah 1986).
31 In re N.N.E., supra note 13 at 12.
1030 	277 neBRAsKA RePoRTs

state child custody proceedings. In sum, the Tribe has autho-
rized her to speak for it, and she is familiar with the applicable
law and procedures.
[6] We conclude that tribal participation in state custody pro-
ceedings 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 inter-
ests. Thus, we determine that federal law preempts the require-
ment 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.
In Re InTeResT oF elIAs l. 	1031
Cite as 277 neb. 1023