C.  Who Is an Indian Child?

25 U.S.C. § 1903(3)
An Indian is any person who is a member of an Indian tribe, or who is an Alaska native and is a member of a Regional Corporation as defined in section 1606 of title 43.

25 U.S.C. § 1903(4)
B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006)
An Indian child is any unmarried person who is under age 18 and is either:
  • A member of an Indian tribe; or
  • Is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
People in Interest of A.G-G., 899 P.2d 319 (Colo. App. 1995)
1.  Who Determines Tribal Membership?

The burden of proof is on the party alleging that the ICWA applies.

People in Interest of J.O., 170 P.3d 842 (Colo. App. 2007)
C.R.S § 19-1-126
The fact that the parent has the burden of proof, however, does not excuse the social services department from complying with the notice requirements or from inquiring.

People in Interest of J.O., 170 P.3d 840 (Colo. App. 2007)
Tribal membership is not defined by the ICWA, and each tribe has the authority to determine its membership criteria and to decide who meets such criteria. This is because one of an Indian tribe’s most basic powers is the authority to determine questions of its own membership.

People in Interest of A.G-G., 899 P.2d 319 (Colo. App. 1995)
Once the question of a child’s Indian status is raised, the court must decide whether, based on the information in front of it, the ICWA applies.

B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006)
The tribe is the best source of information regarding tribal membership.
People in Interest of J.A.S., 160 P.3d 257 (Colo. App. 2007)
A tribe’s determination of membership or membership eligibility is conclusive and final.

25 U.S.C. § 1903(5) Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed. Reg. 67584, 67,586-87 B.2
2.  Membership in Multiple Tribes

If the child is eligible for membership in more than one tribe or is a member of more than one tribe, the child’s tribe shall be considered the one in which the child has the more significant contacts.

Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed. Reg. 67584, 67,587 B.2(c)(i) through (viii)
The court should consider:
  • The length of residence on or near the reservation of each tribe and frequency of contact with each tribe;
  • The child’s participation in activities of each tribe;
  • The child’s fluency in the language of each tribe;
  • Whether there has been a previous adjudication with respect to the child by a court of one of the tribes;
  • Residence on or near one of the tribe’s reservation by the child’s relatives; 
  • Tribal membership of the custodial parent or Indian custodian;
  • The interest asserted by each tribe in response to the notice;
  • The child’s self identification.