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Nebraska Supreme Court Advance Sheets

314 Nebraska Reports

IN RE INTEREST OF MANUEL C. & MATEO S.

Cite as 314 Neb. 91

In re Interest of Manuel C. and Mateo S., 

children under 18 years of age. 

State of Nebraska, appellee and cross-appellee, 

v. Amber S., appellant, and Red Lake Band 

of Chippewa Indians, appellee 

and cross-appellant.

___ N.W.2d ___

Filed April 21, 2023. No. S-22-653.

1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question 

which does not involve a factual dispute is determined by an appellate 

court as a matter of law, which requires the appellate court to reach a 

conclusion independent of the lower court’s decision.

2. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court’s findings.

3. Judgments: Statutes: Appeal and Error. When an appeal calls for 

statutory interpretation or presents questions of law, an appellate court 

must reach an independent, correct conclusion irrespective of the determination made by the court below.

4. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case, 

as in any other appeal, before reaching the legal issues presented for 

review, it is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it.

5. Jurisdiction: Appeal and Error. When an appellate court is without 

jurisdiction to act, the appeal must be dismissed.

6. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, there must be a final order or judgment entered by the court from which the appeal is taken; conversely, 

an appellate court is without jurisdiction to entertain appeals from nonfinal orders.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/21/2023 08:05 AM CDT
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Nebraska Supreme Court Advance Sheets

314 Nebraska Reports

IN RE INTEREST OF MANUEL C. & MATEO S.

Cite as 314 Neb. 91

7. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 

(Cum. Supp. 2022), the four types of final orders which may be 

reviewed on appeal are (1) an order which affects a substantial right in 

an action and which in effect determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special 

proceeding, (3) an order affecting a substantial right made on summary 

application in an action after a judgment is rendered, and (4) an order 

denying a motion for summary judgment when such motion is based 

on the assertion of sovereign immunity or the immunity of a government official.

8. Juvenile Courts: Appeal and Error. A proceeding before a juvenile 

court is a special proceeding for appellate purposes.

9. Final Orders: Appeal and Error. As provided by Neb. Rev. Stat. 

§ 25-1902 (Cum. Supp. 2022), to be final and appealable, an order in a 

special proceeding must affect a substantial right.

10. Final Orders: Words and Phrases. A substantial right is an essential 

legal right, not a mere technical right.

11. Final Orders: Appeal and Error. A substantial right is affected if an 

order affects the subject matter of the litigation, such as diminishing a 

claim or defense that was available to the appellant prior to the order 

from which the appeal is taken.

12. Interventions: Final Orders: Appeal and Error. The denial of a 

motion to intervene is generally a final and appealable order.

13. Indian Child Welfare Act: Proof. A party to a proceeding who seeks 

to invoke a provision of the Nebraska Indian Child Welfare Act has the 

burden to show that the act applies in the proceeding.

Appeal from the Separate Juvenile Court of Lancaster 

County: Shellie D. Sabata, Judge. Affirmed.

Jacinta Dai-Klabunde, of Legal Aid of Nebraska, for 

appellant.

Patrick F. Condon, Lancaster County Attorney, and Maureen 

E. Lamski for appellee State of Nebraska.

Joseph Plumer, for appellee Red Lake Band of Chippewa 

Indians.

Allison Derr, Robert McEwen, and Sarah Helvey for amicus 

curiae Nebraska Appleseed Center for Law in the Public 

Interest.
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IN RE INTEREST OF MANUEL C. & MATEO S.

Cite as 314 Neb. 91

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

Manuel C. and Mateo S. were previously adjudicated as 

minors for purposes of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 

2016), dealing with abuse and neglect allegations. A motion 

to terminate the parental rights of their mother, Amber S., was 

filed. The Red Lake Tribe of Chippewa Indians filed a motion 

to intervene, which was granted. The State then filed a motion 

to reconsider. Following a hearing, the motion to reconsider 

was granted and intervention denied. Amber appeals, and the 

tribe cross-appeals, the juvenile court’s denial of the tribe’s 

motion to intervene.

The questions presented by this appeal are (1) whether 

Amber and the tribe appeal from a final order and (2) whether 

Manuel and Mateo are children for purposes of the Indian 

Child Welfare Act (ICWA) and the Nebraska Indian Child 

Welfare Act (NICWA), where their biological mother is eligible for enrollment, but not yet a member of the tribe, and 

the tribe has indicated that it considers Amber to be a member 

of the tribe for purposes of ICWA. We affirm the denial of the 

motion to intervene.

BACKGROUND

Manuel was born in January 2021, and Mateo was born in 

September 2019. Amber is the biological mother of Manuel 

and Mateo. The parental rights of the children’s biological 

father are not at issue in this appeal.

Following Manuel’s birth, the State sought to adjudicate 

Manuel and Mateo as a result of Amber’s admitted methamphetamine use, as well as a history of domestic violence 

between Amber and the children’s father. That petition was 

granted, and the children were removed from Amber’s care. 

Services were attempted, but the State ultimately sought termination in April 2022.
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IN RE INTEREST OF MANUEL C. & MATEO S.

Cite as 314 Neb. 91

On July 8, 2022, Amber’s counsel filed a motion to continue, noting “there is reason to know the children are ICWA 

children” and “notification for the Indian Child’s tribe has not 

occurred.” Thereafter, the court ordered that notice be sent to 

the tribe, and such notice was served on July 22. The tribe 

sought intervention on August 16, which was initially granted 

on August 25.

That same day, the State filed a motion to reconsider the 

order granting the tribe’s motion to intervene. The juvenile 

court granted the motion to reconsider, and a hearing was 

held on the motion to intervene on August 26. At that hearing, 

the State argued that intervention should be denied because 

Manuel and Mateo were not Indian children for purposes of 

ICWA. The State conceded that the record produced at the 

hearing showed that Manuel and Mateo were eligible for 

membership in the tribe, but argued that there was no evidence 

presented that Amber, their biological parent, was a member 

of the tribe. Upon followup, the tribe clarified in an email that 

“because [Amber] is eligible for enrollment,” she was considered “a member for purposes of being accorded the protections of ICWA.”

A representative of the tribe testified at this hearing that 

Amber was “eligible for enrollment for the tribe. When she 

becomes enrolled, then she is a citizen of this nation. . . . 

Amber . . . and her children are all eligible for enrollment, 

yes.” The representative further testified that there was no 

distinction between “enrollment” and “membership.” The representative’s testimony continued:

Q . . . [I]s it Red Lake as a sovereign nation, are they 

the ones who get to decide who is considered an Indian 

child or Indian member?

A Yes.

Q And is it also the tribe who consider — can decide 

who they consider an Indian member for being accorded 

the protections of ICWA?

A Yes, it is up to the tribe.
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IN RE INTEREST OF MANUEL C. & MATEO S.

Cite as 314 Neb. 91

Q And is it your understanding that in [this] case that 

the tribe has considered them members for purposes of 

being accorded the protections of ICWA?

A Yes.

Q And so, for ICWA purposes, [Amber] and her children 

are considered members to be accorded that protection?

A Yes.

. . . .

Q As we sit here today, Amber . . . is not an enrolled 

member of your, of the Red Lake Nation, correct?

A Correct.

At the hearing on intervention, counsel for the tribe acknowledged that “[Amber] is not an enrolled member, but I believe 

we need to look behind the curtain in this particular case.” 

Counsel later noted that “this particular case . . . doesn’t fit the 

definition, but . . . clearly it meets the spirit of the law.”

In denying the motion to intervene, the juvenile court noted 

that Amber was “eligible” for enrollment and had begun that 

process. The court further acknowledged that the tribe and 

Amber both encouraged a finding that Amber was a member 

as a function of the “‘spirit of the law.’” The juvenile court 

declined that invitation, noting that its

sworn duty . . . is to apply laws exactly as they are 

written.

While the children may become Indian Children under 

the Act at some point in the future, and the tribe wishes to 

extend ICWA protections to them today, this Court simply 

cannot embellish or ignore the words of federal and state 

legislation to make the requested findings.

Accordingly, the juvenile court vacated its order granting 

the tribe’s motion to intervene. Amber appeals, and the tribe 

cross-appeals.

ASSIGNMENTS OF ERROR

On appeal and cross-appeal, Amber and the tribe both assign 

that the juvenile court erred in (1) finding that ICWA and 
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IN RE INTEREST OF MANUEL C. & MATEO S.

Cite as 314 Neb. 91

NICWA did not apply to Amber and her children and (2) vacating its order granting the tribe’s motion to intervene.

STANDARD OF REVIEW

[1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of 

law, which requires the appellate court to reach a conclusion 

independent of the lower court’s decision. 1

[2,3] An appellate court reviews juvenile cases de novo on 

the record and reaches its conclusions independently of the 

juvenile court’s findings. 2 When an appeal calls for statutory 

interpretation or presents questions of law, an appellate court 

must reach an independent, correct conclusion irrespective of 

the determination made by the court below. 3

ANALYSIS

Final Order.

[4,5] This case presents an issue regarding appellate jurisdiction. In a juvenile case, as in any other appeal, before reaching the legal issues presented for review, it is the duty of an 

appellate court to determine whether it has jurisdiction over the 

matter before it. 4 When an appellate court is without jurisdiction to act, the appeal must be dismissed. 5

[6,7] For an appellate court to acquire jurisdiction of an 

appeal, there must be a final order or judgment entered by the 

court from which the appeal is taken; conversely, an appellate court is without jurisdiction to entertain appeals from 

nonfinal orders. 6 Under Neb. Rev. Stat. § 25-1902 (Cum. 

1 In re Interest of Jassenia H., 291 Neb. 107, 864 N.W.2d 242 (2015).

2 In re Interest of Shayla H. et al., 289 Neb. 473, 855 N.W.2d 774 (2014).

3 In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007).

4 In re Interest of Jassenia H., supra note 1.

5 Id.

6 See Florence Lake Investments v. Berg, 312 Neb. 183, 978 N.W.2d 308 

(2022).
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IN RE INTEREST OF MANUEL C. & MATEO S.

Cite as 314 Neb. 91

Supp. 2022), the four types of final orders which may be 

reviewed on appeal are (1) an order which affects a substantial 

right in an action and which in effect determines the action 

and prevents a judgment, (2) an order affecting a substantial 

right made during a special proceeding, (3) an order affecting a substantial right made on summary application in an 

action after a judgment is rendered, and (4) an order denying 

a motion for summary judgment when such motion is based 

on the assertion of sovereign immunity or the immunity of a 

government official. 7

[8,9] We have previously indicated that a proceeding before 

a juvenile court is a special proceeding for appellate purposes. 8

Thus, we focus our analysis upon the second category of final 

orders set forth in § 25-1902. And as provided by that section, 

to be final and appealable, an order in a special proceeding 

must affect a substantial right. 9

[10,11] We have defined a “substantial right” in various 

ways. We have stated that a substantial right is an essential 

legal right, not a mere technical right. 10 We have also explained 

that a substantial right is affected if an order affects the subject 

matter of the litigation, such as diminishing a claim or defense 

that was available to the appellant prior to the order from 

which the appeal is taken. 11

We find relevant In re Interest of Brittany C. et al. 12 and 

In re Interest of Jassenia H.

 13 In In re Interest of Brittany 

C. et al., the Nebraska Court of Appeals concluded that 

7 See id.

8 Id.

9 Id.

10 Id.

11 Id.

12 In re Interest of Brittany C. et al., 13 Neb. App. 411, 693 N.W.2d 592 

(2005).

13 In re Interest of Jassenia H., supra note 1.
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IN RE INTEREST OF MANUEL C. & MATEO S.

Cite as 314 Neb. 91

the denial of the biological mother’s request to transfer jurisdiction to a tribal court was final and appealable. Specifically, 

the Court of Appeals noted that the order affected a substantial 

right because it was

not merely a step or proceeding within the overall action. 

If the request were granted, the pending proceedings 

would stop and these matters would be transferred to 

another forum. While a tribal court in some respects may 

resemble a judicial forum based on Anglo-Saxon judicial 

traditions, it may differ in other respects consistent with 

the tribal court’s Native American traditions. . . .

. . . [And Congress’] findings [with regard to the 

purposes of ICWA] emphasize Congress’ determination 

that a tribal court may provide the parent and the child 

with significant advantages inherent in the recognition 

and implementation of Native American customs and 

traditions. 14

But in In re Interest of Jassenia H., we found that a juvenile 

court’s determination that ICWA and NICWA applied was not 

a final order. We observed that

all of the heightened protections afforded by ICWA and 

NICWA apply prospectively to future determinations in 

the proceedings. In the present case, there is no indication that these protections have had any effect upon the 

adjudication proceedings. From the record, it does not 

appear that the juvenile court has entered a preadjudication detention order. . . . And it is clear that [the child] 

had not yet been adjudicated at the time ICWA and 

NICWA were found applicable. Further, we see no motion 

to transfer jurisdiction to a tribal court or any indication 

that the . . . [t]ribe has sought to intervene.

Until the court takes action to implement or contravene the heightened protections afforded by ICWA 

14 In re Interest of Brittany C. et al., supra note 12, 13 Neb. App. at 421, 693 

N.W.2d at 601-02.
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IN RE INTEREST OF MANUEL C. & MATEO S.

Cite as 314 Neb. 91

and NICWA in some fashion, we cannot conclude that the 

mere determination of applicability affects a substantial 

right. The juvenile court declared only that these laws 

apply—it did not implement them in any way affecting the child’s substantial rights. The court’s order was 

interlocutory and until it applied the law in some adjudicative or dispositive action, functioned merely as an 

advisory opinion. 15

We conclude that the order denying intervention is final. 

ICWA and NICWA provide the tribe has a right, in certain 

situations, to intervene and participate in proceedings involving 

Indian children. As we observe in more detail below, NICWA 

recognizes that “Indian tribes have a continuing and compelling governmental interest in an Indian child.” 16

[12] In reaching this conclusion, we find the appeal before 

us to be more similar to In re Interest of Brittany C. et al. than 

to In re Interest of Jassenia H. In the latter case, the juvenile 

court made a finding regarding the future applicability of 

IWCA, but did not otherwise apply it. 17 Conversely, in In re 

Interest of Brittany C. et al., the juvenile court applied ICWA 

and denied the request to transfer the action to tribal court, and 

thus took action based on its conclusion that ICWA applied. 

Finally, we note that the denial of a motion to intervene is generally a final and appealable order in Nebraska. 18

We conclude that the denial of the right to intervene under 

ICWA affects a substantial right. As such, the tribe and Amber 

appeal from a final order.

15 In re Interest of Jassenia H., supra note 1, 291 Neb. at 115-16, 864 

N.W.2d at 249.

16 Neb. Rev. Stat. § 43-1502 (Reissue 2016).

17 In re Interest of Jassenia H., supra note 1.

18 See, e.g., In re Interest of Jordon B., 312 Neb. 827, 981 N.W.2d 242 

(2022); In re Margaret L. Matthews Revocable Trust, 312 Neb. 381, 

979 N.W.2d 259 (2022); Streck, Inc. v. Ryan Family, 297 Neb. 773, 901 

N.W.2d 284 (2017).
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IN RE INTEREST OF MANUEL C. & MATEO S.

Cite as 314 Neb. 91

Applicability of ICWA.

We turn to the substantive question presented by this 

appeal—namely whether the juvenile court erred in finding 

that Manuel and Mateo were not “Indian Children” under 

ICWA and NICWA and, accordingly, in denying the tribe’s 

motion to intervene.

The tribe and Amber generally assert it is the tribe alone 

that makes determinations regarding a child’s membership, a 

child’s eligibility for membership, or a parent’s membership, 

and they further argue enrollment in a tribe is not dispositive 

as to the issue of membership in a tribe. As such, they contend the juvenile court erred when it found that the children 

were not Indian children despite the tribe’s assertion that 

they were.

Section 43-1502 sets forth that the purpose of NICWA is

to clarify state policies and procedures regarding the 

implementation by the State of Nebraska of the federal 

Indian Child Welfare Act. It shall be the policy of the 

state to cooperate fully with Indian tribes in Nebraska 

in order to ensure that the intent and provisions of the 

federal Indian Child Welfare Act are enforced. This cooperation includes recognition by the state that Indian tribes 

have a continuing and compelling governmental interest 

in an Indian child whether or not the Indian child is in the 

physical or legal custody of a parent, an Indian custodian, 

or an Indian extended family member at the commencement of an Indian child custody proceeding or the Indian 

child has resided or is domiciled on an Indian reservation. The state is committed to protecting the essential 

tribal relations and best interests of an Indian child by 

promoting practices consistent with the federal Indian 

Child Welfare Act and other applicable law designed to 

prevent the Indian child’s voluntary or involuntary outof-home placement.
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IN RE INTEREST OF MANUEL C. & MATEO S.

Cite as 314 Neb. 91

[13] We have previously held that a party to a proceeding 

who seeks to invoke a provision of NICWA has the burden to 

show that the act applies in the proceeding. 19

Neb. Rev. Stat. § 43-1504(3) (Reissue 2016) states that “[i]n 

any state court proceeding for the . . . termination of parental 

rights [to] an Indian child, the Indian custodian of the child and 

the Indian child’s tribe or tribes shall have a right to intervene 

at any point in the proceeding . . . .” “Indian child” is defined 

to mean “any unmarried person who is under age eighteen and 

is either (a) a member of an Indian tribe or (b) is eligible for 

membership in an Indian tribe and is the biological child of a 

member of an Indian tribe.” 20

In this case, there is no allegation that Manuel and Mateo 

are themselves members of the tribe. As such, ICWA and 

NICWA apply only if the children are eligible for membership in the tribe and if one of their biological parents—in this 

case, their mother, Amber—is also a member of the tribe. The 

juvenile court concluded that Amber was not a member, and 

as such, the children were not “Indian children,” and that the 

tribe’s motion to intervene should be denied. We review that 

determination de novo.

The central dispute here is whether Amber is a member of 

the tribe when the only evidence in the record was that Amber 

was eligible for membership, that she had begun the enrollment process, and that the tribe “considered” Amber to be a 

member for purposes of ICWA. The tribe and Amber assert on 

appeal that the juvenile court and the State have incorrectly 

suggested enrollment is dispositive to the question of membership and that the tribe itself is the entity entitled to identify 

its members.

We agree that a tribe has the sole “jurisdiction and authority” to make a decision as to who might be a member of 

19 See, e.g., In re Adoption of Kenten H., supra note 3.

20 Neb. Rev. Stat. § 43-1503(8) (Reissue 2016).
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the tribe, 21 but we must still determine whether the tribe has 

made such a decision with respect to Amber. 22 We also recognize that enrollment is not the only means of establishing 

someone’s membership in a tribe. 23 Although enrollment is not 

wholly dispositive to membership, we believe it is relevant 

here, where the tribe’s representative testified at the hearing 

on the motion to intervene that for her purposes, there was 

no distinction between “enrollment” and “membership,” and 

that Amber would be a “citizen” of the tribe, “[w]hen she 

becomes enrolled.” We note that the juvenile court indicated 

that Amber was not enrolled—rather than finding that Amber 

was not a member—when it found that the children were not 

“Indian children.”

But we do not give weight to the juvenile court’s finding on 

appeal. Rather, this court reviews the decision of the juvenile 

court de novo, and the tribe has the burden to show that ICWA 

and NICWA are applicable. 24 In that de novo review, we note 

that the tribe fails to introduce any other evidence showing that 

Amber was a member of the tribe; rather, the tribe offered only 

evidence that it “considered” Amber, Manuel, and Mateo to be 

members for purposes of ICWA.

We hold that evidence that the tribe “considered” Amber a 

member for purposes of ICWA is insufficient. The plain language of § 43-1503(8) provides as relevant that an “Indian 

child” must have a biological parent who is a member of a 

tribe. The evidence adduced in the juvenile court shows that 

Amber is not currently a member of the tribe; the children, 

in turn, do not have a biological parent that is a member of 

the tribe. 25

21 25 C.F.R. § 23.108 (2022).

22 See In re Adoption of C.D., 751 N.W.2d 236 (N.D. 2008).

23 See, e.g., United States v. Broncheau, 597 F.2d 1260 (9th Cir. 1979).

24 See In re Adoption of Kenten H., supra note 3.

25 See, also, In re Adoption of C.D., supra note 22.
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Cite as 314 Neb. 91

While their status may change in the future, Manuel and 

Mateo are not currently Indian children for purposes of ICWA 

and NICWA. As such, ICWA and NICWA are inapplicable and 

the juvenile court did not err in denying the tribe’s motion to 

intervene.

CONCLUSION

The decision of the juvenile court is affirmed.

Affirmed.