In re Interest of Manuel C. & Mateo S., 988 N.W.2d 520

Manuel (b. Jan 2021) and Mateo (b. Sept 2019) were adjudicated for neglect/abuse after their mother Amber admitted methamphetamine use and there was a history of domestic violence; children were removed and the State later moved to terminate Amber’s parental rights.
Counsel raised potential ICWA applicability; notice was sent to the Red Lake Band of Chippewa Indians, which moved to intervene and was initially granted by the juvenile court.
The State moved to reconsider; at the rehearing the tribe’s representative testified Amber was eligible for enrollment, the children were eligible for enrollment, and the tribe “considered” them members for purposes of ICWA, but Amber was not yet formally enrolled.
The juvenile court vacated its grant of intervention, concluding ICWA/NICWA protections apply only where a biological parent is a member of a tribe and that eligibility or the tribe’s statement that it “considers” the family members to be members was insufficient.
Amber appealed and the tribe cross-appealed; the Nebraska Supreme Court reviewed whether the order denying intervention was final and whether the children were “Indian children” under ICWA/NICWA when the parent was eligible but not enrolled.

Issue	Plaintiff's Argument (Amber/Tribe)	Defendant's Argument (State)	Held
Whether the juvenile court’s denial of the tribe’s motion to intervene is a final, appealable order	Denial affects a substantial right (tribal interest); appealable	Denial may be interlocutory depending on whether ICWA protections were actually implemented	Court held denial of intervention is a final, appealable order because it affects a substantial right (right to intervene under ICWA/NICWA)
Whether Manuel and Mateo are “Indian children” under ICWA/NICWA where Amber is eligible for enrollment but not enrolled and the tribe “considers” them members	Tribe/Amber: tribal determination of membership controls; enrollment is not dispositive and tribe may treat eligible persons as members for ICWA purposes	State: statutory language requires a biological parent to be a member; Amber is not enrolled so ICWA/NICWA do not apply	Court held ICWA/NICWA do not apply: evidence only showed eligibility and the tribe’s statement it “considered” them members is insufficient; a biological parent must be a member for the children to qualify as "Indian children" under the statutes

In re Interest of Jassenia H., 291 Neb. 107, 864 N.W.2d 242 (Neb. 2015) (ICWA/NICWA applicability holding can be interlocutory where protections have not been implemented)
In re Interest of Brittany C. et al., 13 Neb. App. 411, 693 N.W.2d 592 (Neb. Ct. App. 2005) (denial of transfer to tribal court was final and appealable because it halted transfer to another forum)
In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (Neb. 2007) (party invoking NICWA bears burden to prove applicability)
In re Adoption of C.D., 751 N.W.2d 236 (N.D. 2008) (enrollment is not the only evidence of tribal membership, but courts must assess whether tribe has actually made a membership determination)
United States v. Broncheau, 597 F.2d 1260 (9th Cir. 1979) (recognizing that enrollment is not the sole means of proving tribal membership)