Turtle Talk

JimmyE

[14]We consider the Washington Supreme Court’s reasoning to be persuasive and note that other states also consider a specific, recent claim of Native heritage to be a “reason to know” the child is an Indian child.⁴⁷ Tribes have many methods to determine membership or eligibility for membership, including lineal descent or blood quantum.⁴⁸Additionally, a tribe may enroll an eligible child after being notified by a state agency that the child is involved in a child custody proceeding.⁴⁹ Because the tribe as sovereign has exclusive power to determine tribal membership or eligibility for tribal membership, notifying the tribe when a child who may be a member is involved in a child custody proceeding is imperative to implementing ICWA’s protections of tribes and tribal members.

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Perhaps more importantly, treating a parent’s uncertain statements as determinative in a context like this could undermine tribal sovereignty, because the tribe decides who is a member.⁵⁶ It is a “basic federal rule” that tribes are the exclusive authority on their membership.⁵⁷ We have previously held that absent a determination by a tribe, a child’s membership or eligibility for membership in a tribe is likely not subject to judicial admission, recognizing the legal authority of tribes to determine membership.⁵⁸ Giving too much weight to the statements of a party without proof or input from the tribe would undermine this fundamental principle.

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We reiterate that a “reason to know” that children are Indian children may arise in many different ways, based upon a multitude of different pieces of information, and determining whether there is a “reason to know” is a fact-intensive analysis requiring consideration of the record of information and context presented in any given case.⁶⁴ Here, Jimmy’s specific claim that he is a recent descendant of a CIRI shareholder, paired with his early assertions related to his children’s tribal affiliation, gave OCS and the court “reason to know” his children are Indian children, triggering OCS’s duty to inquire and to treat the children as Indian children pending a definitive answer as to their status.