Mother gives Daughter up for adoption upon Daughter’s birth.
Daughter has been in the custody of state child welfare agency for all of her two years.
Father seeks custody of Daughter. Father is an American Indian.
Father seeks to invoke the Federal Indian Child Welfare Act (ICWA), which applies to children of American Indian heritage.
In the first trial over custody of Daughter, Father’s tribe sends a representative to testify in state family court that Daughter is not formally enrolled as a member of their American Indian tribe – and is no longer eligible for membership. The tribal representative represents that ICWA is not applicable to Daughter.
Father disagrees. Court orders a new child custody trial so that Father may have an expert testify otherwise.
For the new trial, Father subpoenas the chief and other leaders (the real decision-makers) of his tribe, to testify that Daughter is eligible for enrollment in the tribe.
The tribal leadership then asserts sovereign immunity in federal court to challenge Father’s subpoenas, arguing that enrollment decisions are internal matters of Indian affairs about which tribe officials should not be compelled to testify.
Father responds that the tribe waived that argument by previously furnishing a representative to testify on the very same subject in the state’s family court at the first trial.