PROVIDENCE — The Narragansett Indian Tribe is asking U.S. District Court to find that its sovereign immunity shields it from subpoenas against the tribe or its leaders that would require testimony about “internal tribal matters.”

The tribe is trying to block the subpoena that would require Tribal Councilman Randy Noka to take the stand in a child-custody trial ordered by the state’s high court.

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

The state Supreme Court in July vacated a Family Court ruling that placed his then infant daughter in state 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, passed in 1978 to address concerns about a high incidence of Native American children being removed from their Native American families.

The decision, written by now Chief Justice Paul A. Suttell said: “There is no dispute that at the time of trial Tamika was eligible for membership in the Narragansett Indian Tribe.” The high court ordered a new Family Court trial.

That trial is now under way before Judge John A. Mutter in Family Court during which a Narragansett tribal advocate appeared as the DCYF’s “expert” witness Sept. 16. The advocate testified Tamika is not enrolled in the tribe, nor is she still eligible for membership. The advocate said the Indian Child Welfare Act did not apply in the case.

The public defender’s office, representing Robinson, argues Noka, Chief Sachem Matthew Thomas and other council members “who are actually the decision-makers concerning an individual’s membership status,” might offer testimony contrary to the tribal advocate. They look to an Oct. 6 letter from the tribe’s lawyer, John F. Killoy, that says the tribal council was in the process of reviewing 400 membership applications, including Tamika’s.

Robinson accuses the tribe of selectively asserting its immunity, unfairly subverting Robinson’s efforts to refute the advocate’s testimony. He argues the tribe waived its immunity in asking the advocate to appear on its behalf as well as any argument that it was not subject to the jurisdiction of Family Court.

The tribe countered that the case falls outside the scope of the federal act because the child is not enrolled, as the advocate testified. Any inquiry about enrollment procedures “goes to the heart of tribal government and internal tribal matters,” which are protected, it said.

“The harm at issue is a threat to legally protected federal rights,” the tribe wrote, continuing “Far from harming the public interest, the fundamental long-standing government-to-government relationship between the United States and Narragansett Indian Tribe is at the center of this controversy.”

The parties met Thursday before U.S. District Judge William E. Smith, who urged a resolution, according to lawyers involved. They will reconvene Thursday.

“I am optimistic we’ll find a way to work through their concerns,” said Killoy, lawyer for the tribe, which seeks a restraining order. Assistant Public Defender Frank Pannozzi did not return a phone call seeking comment.

Robinson lived with Eleanor Wilson and they were raising their four children at the time of Tamika’s birth in October 2007. He considered Wilson his common-law wife, court records show.

Robinson had an affair with another woman that resulted in Tamika’s conception.

Tamika’s mother, already supporting four children, placed the baby with a social service agency. DCYF filed a petition against both parents citing allegations of “[drug] dependency and neglect.” The Family Court granted DCYF temporary custody and the baby was placed in foster care. The judge placed Tamika in DCYF custody after a trial last year.

kmulvane@projo.com