Duhaime's Law Dictionary


Indian Child Definition:

(USA) Any unmarried individual under 18 who is either (a) a member of an Indian tribe or (b) is eligible for membership in an tribe and is the biological child of a member of a tribe.

Related Terms: Indian

A legal term of Indian law in the United States not issue of the common law or treaties but because it appears in a Federal law, the Indian Child Welfare Act (ICWA).

That statute is Chapter 21 of Title 25 of the United States Code and the definition, at §1903(4):

“Indian child means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe."

In Re M.B., Justice Thomas Malone added:

"[E]nrollment is not always required in order to be a member of a tribe. Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative. Thus, the fact that neither the children nor the parents were enrolled members of an Indian tribe at the time of either the adjudication hearing or the termination hearing is not conclusive evidence of the children's status as Indian children."

Note, further, the absence, in the statutory definition, of a prescribed Indian blood quantum or residency upon an Indian reserve.

REFERENCES:

  • In re M.B., 176 P. 3d 977 (Court of Appeals of Kansas, 2008)

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