D. Response of Tribe

1. Tribe Confirms Membership

Tribes have differing methods of establishing membership, and enrollment is not required.[78] A tribe’s determination regarding the child’s membership status is conclusive.[79]

2. Existing Indian Family Doctrine

This is a judicially created exception to ICWA based on the premise that if a child’s parent does not have a social, cultural or political connection with an Indian tribe or the child has never lived in an Indian environment, ICWA should not apply. Many state courts have rejected this approach, citing the lack of statutory authority for this interpretation. Texas courts have not addressed the issue.

The new Guidelines state that there is no exception to ICWA based on the existing Indian family doctrine and provide a non-exhaustive list of factors that should not be considered in determining whether ICWA is applicable.[80]