Document Type
Article
Publication Date
2006
Abstract
The concept of blood quantum confronts anyone interested in American Indian identity in the United States. Both for federal recognition as an “Indian” and for membership in a tribal nation, a person generally must possess a threshold amount of Indian or tribal “blood,” expressed as one-half, one-quarter, or some other fractional amount. In this context, blood is a metaphor for ancestry, as the amount of Indian blood depends on the status of a person’s lineal ancestors. For instance, a person with one Indian parent and one non-Indian parent has one-half Indian blood, while a person with one Indian grandparent and three non-Indian grandparents has one-quarter Indian blood. Intermixture between an Indian and a non-Indian reduces a resulting child’s Indian blood quantum, potentially jeopardizing that child’s federal status as an Indian for certain purposes. Even intermixture with an Indian of a different tribe reduces a resulting child’s tribal blood quantum, potentially jeopardizing his or her tribal membership, and indirectly his or her Indian status for other purposes. Classification as an Indian or non-Indian or a member Indian or non-member Indian is central to jurisdictional questions in Indian law, as both Congress and the Supreme Court demarcate federal, tribal and state authority on Indian lands based on an individual’s status. Further, such classification determines eligibility for a host of tribal rights and federal benefits.
Blood quantum is controversial among academics, policy makers, and affected individuals both inside and outside tribal communities. Some allege that the federal government applies blood quantum to eliminate its responsibilities to Indian people by legally defining Indians out of existence. In the tribal membership context, some see blood quantum as a negative force allegedly imposed by the United States and at odds with traditional forms of tribal membership. Others see it as a neutral method to define tribal membership when consistent with the policy goals of a tribe.
While blood quantum permeates federal Indian policy, its origins are not well documented. This paper is an attempt to fill the void. It traces the use of blood quantum by the federal government to 1935. This time period covers the advent of federal Indian policy to the passage of the Indian Reorganization Act, a major transitional development in Indian law which set up procedures for tribes to adopt constitutions to define their membership.
The article focuses on the evolution of the use of blood quantum primarily in the context of federal definitions of two separate terms, “Indian” and “tribal member,” by courts, by Congress, and by the Department of Interior. Part I discusses colonial and early state uses of blood quantum. Part II discusses federal uses of blood quantum, divided into several periods of federal Indian policy. Part IIA discusses the treaty period (1817-1871). Part IIB discusses the reservation period (1871-1887). Part IIC discusses the allotment period (1887-1934). Part IID discusses the 1934 Indian Reorganization Act.
In Part III the article concludes that blood quantum in federal Indian policy to 1935 is more striking for its lack of use than its application. Though early federal officials were aware of blood quantum and used it in scattered situations for specific purposes, they generally preferred definitions that applied matrilineal or patrilineal descent or tribal membership. Blood quantum became an important method of defining Indian and tribal membership only in the early twentieth century. By the passage of the Indian Reorganization Act, blood quantum was firmly entrenched in federal Indian policy, though it existed alongside political definitions of Indian status. The shift from the almost exclusive use of political definitions to the selective use of biological ones tracks the changing perception of the federal government’s relationship to Indian tribes. Ultimately, the lack of consistency in applications of blood quantum reflects the failure of the United States to reconcile the foundational contradictions of federal Indian law.
Publication Title
South Dakota Law Review
Volume
51
First Page
1
Last Page
50
Keywords
Blood Quantum, Federal Indian Law, United State Tribal Membership, Indian Law Jurisdiction, Federal Indian Policy
Recommended Citation
A Legal History of Blood Quantum in Federal Indian Law to 1935, 51 South Dakota Law Review 1 (2006).