In re Interest of Dakota L., et al

Caselaw Number
14 Neb. App. 559
Filed On


SUMAMRY: “In an action for adjudication of Indian children, it is necessary to plead facts under the ICWA.” In this case, the juvenile court committed error when it adjudicated the children under the original petition which did not contain the facts required by ICWA.Also, there was insufficient facts to determine whether the tribe received adequate notice, so the Court of Appeals required that notice be given to the children’s tribe.

Five siblings were placed in temporary custody with DHHS after CPS and the Omaha Tribe’s Tribal Court were unable to provide the family necessary services for the children’s health and safety. The mother appealed her children’s adjudication claiming that: the juvenile court had no authority to claim concurrent jurisdiction with the tribal court, that the court failed to meet ICWA pleading requirements, and that insufficient notice was sent to the tribal court.

“In an child custody proceeding involving an Indian child, the tribe has exclusive jurisdiction in two instances: (1) when the Indian child resides or is domiciled within the reservation, except where jurisdiction is otherwise vested in the state by federal law, and (2) when the Indian child is a ward of the tribal court, notwithstanding the residence or domicile of the child.” While there was no debate that the children failed prong one because the children were not living on the reservation at the time of removal, the mother argued that the children met the second prong due to the family’s involvement with the tribal court. The Court of Appeals concluded that the tribal court would have exclusive jurisdiction if they were wards of the tribal court, but there was no evidence that the children were wards. However, the court noted that this did not foreclose the possibility of intervention by the tribe in a future proceeding on this case.

The court reversed the juvenile court’s adjudication for failing to properly plead under ICWA, and remanded “for an adjudication under an appropriate amended petition.” “In an action for adjudication of Indian children, it is necessary to plead facts under the ICWA.”In this case, although the State did file an amended petition including the allegations required under ICWA, the juvenile court proceeded under the original petition, which lacked the required facts under ICWA, and therefore the juvenile court committed error.

The mother claims that the notice should have been sent to the tribal court, rather than the “ICWA specialist;” however, there was no authority cited for this proposition. The court concluded that since it was unclear “whether notification directed to the ICWA specialist complied with the ICWA’s notice requirements,” that notice instead be given to the children’s tribe. The statutory language further required that the tribe be given notice of “pending proceedings,” but did not require that the notice contain the fact that the children were in state foster care placement at the time the notice was sent.