D. Indian Child Determination

A tribe’s determination regarding the child’s status is conclusive and a "State court may not substitute its own determination regarding a child's membership or eligibility for membership in a Tribe or a parent's membership in a Tribe." 25 C.F.R. § 23.108(b).[65] Certain factors relied upon by courts in the past in determining whether a case is subject to ICWA are expressly excluded from this determination, including: a family's involvement with the tribe and cultural, social, religious or political activities; the child's blood quantum, or whether the parent ever had custody. 25 C.F.R. § 23.103(c).[66] If the only identified tribe confirms that a child is neither a member nor eligible for membership, this evidence can support a request that the court find that the ICWA does not apply.

If a Tribe fails to respond after being properly noticed, counsel should first verify that the agency has exercised due diligence to communicate with the Tribe by phone, fax or e-mail. A state court may rely on facts or documentation indicating a Tribal determination or membership or eligibility, such as an enrollment document, to make a determination regarding Indian child status. 25 C.F.R. § 23.108(c).[67]

In the more common scenario, when documents showing a tribal determination are not available, a tribe's failure to respond to notice may present a distinct difficulty. Once the court confirms by way of report, declaration or testimony on the record that due diligence was used to identify and work with all potential tribes, the Regulations direct the court to "[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of ‘Indian child’…" 25 C.F.R. § 23. 107(b).[68]

Depending on the nature of the evidence that gave the court reason to know that the child is an Indian child and prompted notice, imposing ICWA's requirements without confirmation from a tribe or independent evidence may not be legally supportable. Until there is further case law interpreting the Regulations, the determination of a child's Indian status in the absence of tribal input may depend on the court's assessment of the nature and quality of the initial report of possible Indian child status and the evidence available after proper notice is provided.

The Regulations state that there is no exception to ICWA based on the premise that if the child’s parent does not have a social, cultural or political connection with an Indian tribe that ICWA should not apply. This judicially-created doctrine, called the existing Indian family doctrine, had not been addressed in Texas courts but is now specifically denounced in the Regulations.