25 CFR § 23.108 - Who makes the determination as to whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member of a Tribe?

---
identifier: "/us/cfr/t25/s23.108"
source: "ecfr"
legal_status: "authoritative_unofficial"
title: "25 CFR § 23.108 - Who makes the determination as to whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member of a Tribe?"
title_number: 25
title_name: "Indians"
section_number: "23.108"
section_name: "Who makes the determination as to whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member of a Tribe?"
chapter_name: "BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR"
subchapter_number: "D"
subchapter_name: "HUMAN SERVICES"
part_number: "23"
part_name: "INDIAN CHILD WELFARE ACT"
positive_law: false
currency: "2026-04-05"
last_updated: "2026-04-05"
format_version: "1.1.0"
generator: "[email protected]"
authority: "5 U.S.C. 301; 25 U.S.C. 2, 9, 1901-1952."
regulatory_source: "59 FR 2256, Jan. 13, 1994, unless otherwise noted."
cfr_part: "23"
---


# 23.108 Who makes the determination as to whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member of a Tribe?

(a) The Indian Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) determines whether the child is a member of the Tribe, or whether the child is eligible for membership in the Tribe and a biological parent of the child is a member of the Tribe, except as otherwise provided by Federal or Tribal law.

(b) The determination by a Tribe of whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member, is solely within the jurisdiction and authority of the Tribe, except as otherwise provided by Federal or Tribal law. The State court may not substitute its own determination regarding a child's membership in a Tribe, a child's eligibility for membership in a Tribe, or a parent's membership in a Tribe.

(c) The State court may rely on facts or documentation indicating a Tribal determination of membership or eligibility for membership in making a judicial determination as to whether the child is an “Indian child.” An example of documentation indicating membership is a document issued by the Tribe, such as Tribal enrollment documentation.