Or. Admin. Code § 413-115-0030

Current through Register Vol. 63, No. 10, October 1, 2024

Section 413-115-0030 - Tribal Membership and Enrollment

(1) Tribal Determination of Membership or Eligibility for Membership.

(a) The determination of whether the child is a member of a tribe (or eligible for membership), is solely within the jurisdiction of the tribe, except as otherwise provided in tribal or federal law.

(b) The determination of whether a biological parent is a member of a tribe is solely within the jurisdiction of the tribe, except as otherwise provided by tribal or federal law.

(c) When the Indian child is a member or eligible for membership in only one tribe, that tribe is the Indian child's tribe.

(d) When the Indian child is a member of one tribe but is eligible for membership in one or more other tribes, the tribe of which the Indian child is a member is the Indian child's tribe.

(e) When the Indian child is a member of more than one tribe or if the Indian child is not a member of any tribe but is eligible for membership with more than one tribe, the Indian child's tribe is:

(A) The tribe designated by agreement between the tribes of which the Indian child is a member or in which the Indian child is eligible for membership; or

(B) If the tribes are unable to agree on the designation of the Indian child's tribe, the tribe designated by the court.

(2)Department Responsibilities.

(a) When a child may be a member or enrolled or eligible for membership or enrollment in a tribe, the Department must follow all notification requirements in OAR 413-115-0050 and notice requirements in OAR 413-115-0120.

(b) When a child may be a member of or enrolled in, or eligible for membership of or enrollment in, more than one tribe, the Department must gather and document information to assist the court in making a determination for purposes of ORICWA. The information, if available, must include, but is not limited to:

(A) The parents' preference for the membership or enrollment of the Indian child.

(B) The length of past domicile or residence on or near the reservation or Indian lands of each tribe.

(C) Tribal membership or enrollment of the Indian child's custodial parent or Indian custodian.

(D) Interest asserted by each tribe in the child-custody proceeding.

(E) Whether there has been a previous adjudication with respect to the Indian child by a court of one of the tribes.

(F) Self-identification of the child if the Indian child is of sufficient age and capacity to meaningfully self-identify.

(c) When the Department receives tribal confirmation regarding the status of an Indian child'smembership or enrollment or eligibility for membership or enrollment, the Department must:

(A) Document in the Department's information system either:

(i) The determination by the tribe of the child's membership or enrollment or eligibility for membership or enrollment; or

(ii) The determination by the tribe declaring the child is ineligible for membership or enrollment.

(B) Submit any and all confirmation from the tribe(s) regarding the child's membership or enrollment status at subsequent court hearings.

(d) The Department must:

(A) Identify and work with all of the tribes of which the Department knows or has reason to know the child may be a member (or eligible for membership); and

(B) Treat the child as an Indian child when there is reason to know the child may be an Indian child unless it is determined by the court that the child does not meet the definition of an Indian child.

(e) In any proceeding under ORS chapter 419B when there is reason to know the child is an Indian child and the child is not a member of a federally recognized Tribe and the Department reasonably believes that the Indian child is eligible for enrollment in a tribe, the Department must notify the Indian child's parent's right to object to the Department's assistance. Unless an Indian child's parent objects, the Department must provide assistance with enrolling an Indian child within the juvenile court's jurisdiction under ORS 419B.100 in a tribe with which the child is eligible for enrollment.

Or. Admin. Code § 413-115-0030

CWP 2-2017(Temp), f. & cert. ef. 2-7-17 thru 8-5-17; CWP 5-2017(Temp), f. & cert. ef. 5-12-17 thru 8-5-17; CWP 9-2017, f. 8-5-17, cert. ef. 8/6/2017; CWP 123-2018, amend filed 12/12/2018, effective 12/12/2018; CWP 148-2020, temporary amend filed 12/31/2020, effective 1/1/2021 through 6/29/2021; CWP 16-2021, amend filed 06/29/2021, effective6/29/2021; CWP 32-2021, amend filed 12/30/2021, effective 1/1/2022

Statutory/Other Authority: ORS 418.005 & ORS 409.050

Statutes/Other Implemented: ORS 418.005