Blood Quantum, Race, and Identity in Indian Country

Posted in History, Identity Development/Psychology, Law, Media Archive, Native Americans/First Nation, Papers/Presentations, United States on 2012-03-10 22:44Z by Steven

Blood Quantum, Race, and Identity in Indian Country

January 2011
32 pages

Sarah Montana Hart, Judicial Clerk
Magistrate Judge Carolyn Ostby
Federal District Court for the District of Montana

This article discusses how blood quantum laws affect racism and other relations between Indian nations and the United States.

1. Introduction

Throughout the history of our country, different levels of “blood quantum” have been required to achieve different levels of status – one drop here, one-half there, and so on. In this way, “[o]ur propensity to sort people into categories has, over the course of history, contributed to immense human suffering.” Depending on the group, its political clout, and the monetary resources at stake, different lines are drawn around or through a group, and only enough “blood” will get you across those different lines. For example, one drop of “black” blood (aka anyone black in your family tree) was enough to make you a member of the “negro” group. However, it took anywhere from one-fourth to one-half “Indian” blood (an Indian parent or a grandparent) to get you into the “Indian” group. In this way, blood quantum has been used to define the boundaries of groups throughout our history.

A closer examination of the history of Indian blood quantum shows, however, that sometimes this boundary drawing was completely arbitrary, based on nothing more than an individual’s appearance. Sometimes the determination of insider/outsider status was also based on the property interest of the powerful class (read: whites). Despite the dubious history of blood quantification, however, the mechanism is still used today by many Indian tribes to determine insider or outsider status. Blood quantum has been adopted by the tribes to determine, for their own purposes, who is considered an Indian and who is not. Thus, blood quantum has been used by tribes to decide tribal membership.

Adoption of blood quantum rules by Indians themselves would be troubling enough, given the imperial and arbitrary history of their early implementation by the U.S. government. What is even more troubling, however, is that even today, blood quantum is used to determine who gets valuable resources – land, money, and preference. Those who are determined, by their blood quantum, to be “Indian” enough are given rights to land, natural recourses, per capita payments, and a number of other valuable assets.

In the United States, however, we have developed a very strong belief in equal protection: no one should be deprived of anything, or get anything extra, based only on the color of their skin, their racial heritage, or their affiliation with a certain group. We take this equality very seriously; people died to make sure that could happen. And yet, Indian tribes today are determining that one tribal member gets a certain amount of government money because they have the right “blood quantum,” while depriving someone who does not have that same “blood quantum” of getting an equal amount of money. To many people, tribal members or otherwise, this determination seems suspect. Given the history of our country, and our tradition of equal protection, should we be suspect of any rule that gives an individual anything on the basis of race alone?

The United States Supreme Court has said, however, that “Indian” is not a racial category. It has determined that Indian blood quantum is a political, rather than a racial determination, and therefore no one is getting anything extra, or being denied anything, based on their race. The Court has carved out Indian blood quantum rules from regular equal protection analysis, and created a troubling legal fiction. By insisting that “Indians” are political, rather than racial beings, the Court ignores both the history and the reality of tribal membership.

This paper argues that this legal fiction is not only absurd, but harmful to Indian interests. Blood quantum is a suspect classification that should be subject to normal equal protection analysis. Part Two of this paper discusses the intellectual concept of “blood quantum” and defines it in the abstract. This discussion and definition show how easily blood quantum rules can be used as arbitrary political tools. Part Three puts this abstract definition into actual historical contexts and shows how Indian blood quantum rules came to exist. The history shows that the rules were based on a disturbing historical precedent, and implemented by the U.S. government with the specific intention of limiting the number of “Indians” who were eligible for land grants. The history also makes it clear that who was determined “Indian” and who was not was the product of a split-second, racial determination by random government officials during a chaotic enrollment process. Part Four shows how, despite the dubious history of blood quantum rules, tribes have increasingly used them to determine tribal membership. Part Five discusses how the U.S. Supreme Court continues to insist that “Indian” is not a racial category, but a political one. The section explains why, in the light of the history and the practical use of blood quantum by tribes today, this is a complete legal fiction.

Part Six discusses why the continued use of blood quantum rules should matter, based on an equal protection analysis. The section explains that maintaining a legal fiction (that “Indian” is not a racial category), actually harms Indian interests, and promotes racism rather than understanding. While blood quantum rules are racial, and should be subject to strict scrutiny, this section also discusses arguments that could be used to overcome that judicial hurdle. The conclusion, in Part Seven, reiterates that discussion about Indian identity, and the benefits or preferences that one can receive as an Indian, should be candidly one of racial distinction. This discussion should also include a justification of policies specifically tailored to advance a compelling tribal and governmental interest in maintaining a trust relationship and righting historical wrongs. If that conversation can occur openly, the racist idea that Indians get special treatment or something for nothing, is addressed head on, and justified through recognizable equal protection standards. This is a far more productive discussion than side-stepping the issue entirely and pretending that race is not a factor in the equation…

Read the entire paper here.

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