---
kind: "section"
citation: "25 C.F.R. § 23.108"
title: "25"
number: "23.108"
heading: "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?"
url: "https://uscodex.org/cfr/25/23.108"
---

# §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.

## Notes

### Source

Source: 81 FR 38867, June 14, 2016, unless otherwise noted.

### Authority

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 1901-1952.

### Source

Source: 59 FR 2256, Jan. 13, 1994, unless otherwise noted.