C.F.R. » Title 25 » CHAPTER I—BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR › SUBCHAPTER D—HUMAN SERVICES › PART 23—INDIAN CHILD WELFARE ACT › Subpart I—Indian Child Welfare Act Proceedings

25 C.F.R. § 23.108

Who makes the determination as to whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member of a Tribe?

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(a) The Indian Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) determines whether the child is a member of the Tribe, or whether the child is eligible for membership in the Tribe and a biological parent of the child is a member of the Tribe, except as otherwise provided by Federal or Tribal law.

(b) The determination by a Tribe of whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member, is solely within the jurisdiction and authority of the Tribe, except as otherwise provided by Federal or Tribal law. The State court may not substitute its own determination regarding a child's membership in a Tribe, a child's eligibility for membership in a Tribe, or a parent's membership in a Tribe.

(c) The State court may rely on facts or documentation indicating a Tribal determination of membership or eligibility for membership in making a judicial determination as to whether the child is an “Indian child.” An example of documentation indicating membership is a document issued by the Tribe, such as Tribal enrollment documentation.

Notes of Decisions
Cited in 44 cases (24 in the last 5 years), 2016–2026 · leading case: In re Dependency of Z.J.G., 471 P.3d 853 (Wash. 2020).
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In re Dependency of Z.J.G., 471 P.3d 853 (Wash. 2020). · cites it 6× “25 C.F.R. § 23.108 . These tribal interests are protected by the notice provision in ICWA and WICWA.”
In re S.R., 436 P.3d 696 (Mont. 2019). · cites it 5× “, ¶ 14 ; 25 C.F.R. § 23.108 (b). A tribal determination of membership eligibility is conclusive as a matter of law.”
H.J.B. v. A - J.A.B. Judgment Affirmed Just. Berkenkotter Delivered the Opinion of the Court, in Which Chief Just. Boatright Just. MÁrquez Just. Hood Just. Gabriel Just. Hart, 2023 CO 48 (Colo. 2023). · cites it 3× “3d at 761; see also 25 C.F.R. § 23.108 (b) (2023). ¶20 The division ordered a limited remand so that the Department could apply the appellate court’s new three-step test.”
Los Angeles Cnty. Dep't of Child. & Fam. Servs. v. Lydia O., 8 Cal. App. 5th 636 (Cal. Ct. App. 2017). “…solely within the jurisdiction and authority of the Tribe, except as otherwise provided by Federal or Tribal law.” ( 25 C.F.R. § 23.108 (b) (2017).)”
Sacramento Cnty. Dep't of Health & Human Servs. v. Joseph A., 375 P.3d 879 (Cal. 2016). “”]; see 25 C.F.R. § 23.108 (b) (2016) [“The determination by a Tribe of whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member, is solely within the jurisdiction and authority of the Tribe, except as otherwise provided…”
Jocelyn Lee Geouge v. Jason Barry Traylor, Dustin Griffith & Tiffany Vadella-Griffith, 808 S.E.2d 541 (Va. Ct. App. 2017). “25 C.F.R. § 23.108 (b).4 4 For the majority of the Act’s existence, there have been no federal regulations regarding how it should be implemented.”
Native Vill. of Chignik Lagoon v. State of Alaska, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., & Native Vill. of Wales, 518 P.3d 708 (Alaska 2022). · cites it 5× “A federal regulation, 25 C.F.R. § 23.108 , defines who decides tribal membership under ICWA: (a) The Indian Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) determines whether the child is a member of…”
In re D.E., 2021 Ohio 524 (Ohio Ct. App. 2021). “{¶ 66} Furthermore, 25 C.F.R. 23.108(a), which details the responsibility for determining whether a child is a member of a tribe, provides: The Indian Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member)…”
In re Interest of Manuel C. & Mateo S., 988 N.W.2d 520 (Neb. 2023). “The plain lan- guage of § 43-1503(8) provides as relevant that an “Indian child” must have a biological parent who is a member of a tribe.”
Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018). “25 C.F.R. § 23.108 (a). "The State court may not substitute its own determination regarding a child's membership in a Tribe, a child's eligibility for membership in a Tribe, or a parent's membership in a Tribe.”
Jimmy E. v. State of Alaska, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., Allie P. v. State of Alaska, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 529 P.3d 504 (Alaska 2023). “30 25 C.F.R. § 23.108 (a). 31 BIA GUIDELINES, supra note 27, at 22.”
in Interest of K.C & L.C, 2021 CO 33 (Colo. 2021). “”); 25 C.F.R. § 23.108 (b) (2021) (“The determination by a Tribe of whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member, is solely within the jurisdiction and authority of the Tribe, except as otherwise provided by…”
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— 25 C.F.R. § 23.108(a) — 1 case
In re D.E., 2021 Ohio 524 (Ohio Ct. App. 2021). “{¶ 66} Furthermore, 25 C.F.R. 23.108(a), which details the responsibility for determining whether a child is a member of a tribe, provides: The Indian Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member)…”
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