The North Dakota Supreme Court on Thursday refused to apply the Indian Child Welfare Act in a case involving a child who is eligible for membership in the Oglala Sioux Tribe of South Dakota.

In briefs, the tribe determined that "Chad" is eligible for membership. But the tribe failed to determine that Chad is the biological child of a tribal member, the court said. "Mary," the boy's mother, is not enrolled, although she is eligible for membership.

"The question here is not whether the Tribe has the authority to determine its own membership. It clearly does," the decision stated. "The question here is whether any admissible evidence of such a determination by the Tribe was presented to the district court."

"The Tribe and Mary, as the parties urging ICWA's application in this case, had the burden to present evidence that Chad was eligible for membership in the Tribe and that Mary was a member of the Tribe," the court said [emphasis added].

Since the tribe and Mary failed to meet their burden to prove Chad is an "Indian child" as defined by ICWA, the court said the law doesn't apply in the case. The decision allows for the termination of Mary's parental rights.

Court Decision:
In the Matter of the Adoption of C.D. (June 26, 2008)