[I]s there at all a threshold before you can call, under the statute, a child an “Indian child”? 3/256ths? . . . I’m just wondering is 3/256ths close—close to zero?
—Chief Justice Roberts, Oral Argument in Adoptive Couple v. Baby Girl (April 16, 2013)
[An “Indian” under federal law] should be one-half. . . . What we are trying to do is get rid of the Indian problem rather than add to it.
—Sen. Burton K. Wheeler, Chairman of the Senate Committee on Indian Affairs (1934)
Baby girl A.D. [has] more than 50% non-Indian blood . . . . Some of the tribes consider individuals with only a tiny percentage of Indian blood to be Indian.
—Complaint, A.D. v. Washburn (July 6, 2015)
In Adoptive Couple v. Baby Girl, several Supreme Court Justices began to question whether a Tribal Nation could grant citizenship to a child of a tribal citizen if the child lacks sufficient blood quantum. As Chief Justice Roberts asked, “is there at all a threshold” at which the child of a tribal citizen can no longer be considered eligible for citizenship in a Tribal Nation? For the 567 federally recognized Tribal Nations that remain in existence today, the suggestion that at a certain point federal law will preclude their citizens from giving birth to another generation of citizens is alarming, to say the least.
This concept, however, is not new or even uniquely contemporary. Instead, this same concept—specifically, the idea that a minimum blood quantum is necessary before federal law will recognize an individual as a citizen of a Tribal Nation—originated at the turn of the twentieth century during the Allotment Era, when the United States sought to eliminate tribal governments, and their citizens, altogether. From 1887 through the Termination Era in the 1950s, the federal government imposed minimum blood quantum requirements to define tribal citizenship as part of an overall effort to (1) eliminate the number of individuals to whom the federal government owed a trust responsibility, (2) transfer millions of acres from Tribal Nations to non-Indian ownership, and (3) justify wholesale termination of federal recognition of entire Tribes.
The Allotment Era, however, marked the very first period in which the United States federal government imposed minimum blood quantum requirements to define tribal citizenship under federal law. Prior to the Allotment Era, from the inception of the United States until the late nineteenth century, the federal government consistently recognized “Indian” as a political designation signifying citizenship in an Indian Nation. That is, at no time in the nineteenth century did the United States ever uniformly impose a minimum amount of blood quantum to define an “Indian” under federal law. In the hundreds of treaties signed between Tribal Nations and the United States, the United States consistently recognized the inherent right of Tribal Nations to define their own citizenship requirements.
By the end of the nineteenth century, however, the federal government became desperate to open up tribal lands on reservations for white settlement. To do this, Congress passed a series of allotment acts and ultimately, during the course of their implementation, imposed a minimum amount of blood quantum to define tribal citizenship and thereby diminish the authority of Tribal Nations over both their lands and their citizens.
Federal policy changed again in 1934, when the federal government passed the Indian Reorganization Act (IRA) and once again defined “Indian” under federal law as individuals “who are members of any recognized tribe now under federal jurisdiction” without regard for whether they met a minimum blood quantum requirement. With the IRA, the federal government restored its original understanding that “Indian” constitutes a political classification based on citizenship in a Sovereign Tribal Nation.
Since 1934, with the exception of select termination acts in the 1950s, Congress and the Supreme Court have repeatedly recognized and affirmed the inherent right of Tribal Nations to define their own rules and regulations regarding who qualifies for citizenship in a Nation—regardless of blood quantum.
It is true that some Tribal Nations currently maintain citizenship laws that require a certain amount of blood quantum to be eligible for citizenship. That, however, is the determination of the individual Sovereign Tribal Nation. As Nations pre-dating the existence of the United States, tribal governments maintain an exclusive, sovereign authority to define requirements for their citizenship. Just as France has no authority to define the requirements for citizenship in the United States, the United States has no constitutional or inherent authority to impose tribal- citizenship requirements based on a minimum amount of blood quantum.
And yet this is precisely what the Supreme Court’s decision in Adoptive Couple signals the Court may soon do. At oral argument and in the majority opinion, the Adoptive Couple Court clearly questioned whether Baby Girl could be a citizen of the Cherokee Nation, despite the fact that her father was a citizen of the Nation, and she herself, under the Cherokee Nation’s law, was eligible for citizenship.