At Fed Bar this year, I spoke about concerns regarding the definition of an Indian child for the purposes of ICWA when the child is eligible and the parent is a tribal member. This is the third case I’ve seen where there is an argument that a parent’s eligibility should be enough. Unfortunately, this isn’t the definition, and it has been an unsuccessful argument.
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.
One practice tip may be for tribes to apply for permissive intervention under the state court rules rather than the mandatory intervention under ICWA. This may be compelling for a judge when a parent is in the process of becoming a tribal member–at which point, ICWA would apply moving forward.