Noka

PROVIDENCE — Narragansett Tribal Councilman Randy Noka will not have to testify in a child-custody trial being heard in Family Court following an agreement reached by the tribe and the father’s lawyer.

The tribe and the Rhode Island Office of the Public Defender, which represents Jackie Robinson, the Narragansett Indian father, entered a consent order Tuesday before Judge William E. Smith in U.S. District Court saying that Noka would not have to take the stand.

The Narragansett Indian Tribe had asked the court to find that its sovereign immunity shielded it from subpoenas that would require testimony about “internal tribal matters.” The tribe wanted to block the subpoena that would have forced Noka to testify in the child-custody trial ordered by the state’s high court.

The case involves Robinson’s effort to regain custody of his 2-year-old daughter, Tameka, who has been in the care of the state Department of Children, Youth and Families since birth.

The state Supreme Court in July vacated a Family Court ruling that placed Robinson’s then-infant daughter in DCYF custody. The court found that Robinson was entitled to have an expert witness testify on his behalf under the federal Indian Child Welfare Act, a 1978 law intended to address concerns about a high incidence of Native American children being removed from their families.

It ordered a new trial, which is now under way before Judge John A. Mutter in Family Court. A Narragansett tribal advocate, appearing as DCYF’s expert witness, testified that Tameka is not enrolled in the tribe, nor is she still eligible for membership. She said the Indian Child Welfare Act did not apply.

The public defender’s office argued Noka or another tribal leader might offer testimony contrary to that of the advocate. They looked to a letter by the tribe’s lawyer that said the tribal council was reviewing 400 membership applications, including Tameka’s.

The consent order reached Tuesday states that the Narragansett Indian Tribe, as a federally recognized tribe, has the exclusive authority to determine its membership. It notes that Robinson did not file a membership application on his daughter’s behalf within a year of her birth as required by the tribe. As a result, she was not enrolled or considered a member.

But the tribe, it said, occasionally opens its enrollment to consider children inadvertently left off the tribal roll and recently did so for those believed to be omitted since 1994. Robinson’s daughter is one of the children being considered for membership “according to Tribal law and lore.”

The public defender’s office agreed to withdraw its subpoena and the action was dismissed without costs to either party.

kmulvane@projo.com