Does a tribe have transfer jurisdiction under ICWA over children who are eligible for membership?
Yes. The ICWA defines an Indian child as a child who is a member of an Indian tribe, or a child who is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. 1903(4). A tribe’s determination that a child is a member of, or is eligible for membership in, a tribe is conclusive evidence that a child is an Indian child within the meaning of the ICWA. See also, Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Bureau of Indian Affairs Nov. 26, 1979) (guidelines for state courts). Neither enrollment nor blood quantum is required as long as the child is recognized as a member of the tribe or as eligible for membership. In re Riffle (Riffle II), 922 P.2d 510, 513 (Mont. 1996). Practice Tip: The ICWAs definition of Indian child is more expansive than most tribal laws, and thus expands tribal jurisdiction over a broader category of Indian children, for example, children who are eligible for enrollment but who have not yet been formal
