Alex Pearl on Dusten Brown’s Blood Quantum, which apparently is 3/256

The following is by my FIU colleague Alex Pearl, an Indian Law scholar and an enrolled member of the Chickasaw Nation of Oklahoma.

There are a lot of very good assessments of the Adoptive Couple v. Baby Girl decision, and I will not attempt to add to that thoughtful analysis of the holding.  Instead, I’d like to focus on a different aspect of the Court’s opinion, which is its misplaced and worrisome obsession with whether Veronica is Indian enough.  While not the stated basis for the Court’s decision, the repeated references to Veronica’s percentage of Cherokee ancestry display a misunderstanding of tribal citizenship laws and (ironically, given the Court’s color-blind bent) reinforce an inchoate racialization of Native people.  The Court’s message seems to be: if children like Veronica lack sufficient “Indian blood,” they do not warrant the legal protections that their political status as American Indian tribal members otherwise affords.
 What’s in a number?  More than you would think.  Justice Alito began his majority opinion with this statement: “[t]his case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” Thankfully, the Court references Baby Veronica’s blood quantum by BOTH fraction and percentile for those math challenged readers.  This has the effect of attempting to reiterate that Baby Veronica really isn’t that much of an Indian, so this isn’t really that big of a deal. Under Cherokee membership requirements, Veronica’s so-called blood quantum is irrelevant, however.  The only thing that matters is whether she descends from an ancestor on the Cherokee Nation’s Dawes Roles.  Justice Alito later acknowledges this, referencing Baby Veronica’s “remote ancestor” which, again, attempts to delegitimize her Indian-ness. 

However, Baby Veronica’s actual quantum of blood is simply irrelevant, which Justice Sotomayor points out in her vigorous dissent. (slip op. at 23-24).  The plain fact, which the Majority gets wrong, is that Baby Veronica is a Cherokee Indian—no matter the extent to which this fact challenges their own personal notions of who an Indian is and what an Indian looks like.  She is a citizen of the Cherokee Nation.  Her citizenship in the Cherokee Nation is not up for debate, diminution, or question.  Indeed, this is one of the many purposes of the Indian Child Welfare Act, to prevent non-Indians from making these types of judgments about who is/isn’t/might be/looks like an Indian.
The Majority’s statement about the “low” percentage of blood attempts to make more palatable the idea of this Cherokee girl facing a likely increased difficulty in connecting with her tribal culture and tribal family.  I say “likely” because my sincere hope is that wherever Baby Veronica is, she be given the opportunity to connect with her Cherokee community and engage with Cherokee culture. But, this is difficult because engaging with one’s tribal community culture, I’ll generalize briefly here, entails interaction with family.  The presumptive adoptive parents may not be inclined to encourage Baby Veronica’s connection to her biological father’s family. This, I might add, was a fundamental purpose of the Indian Child Welfare Act—to protect tribal culture. This is perhaps another benefit of the Majority’s use of “3/256,” to try and differentiate the statute’s purpose—protecting Indian children and tribal culture—from the facts of the current case, i.e. Baby Veronica isn’t really an Indian.
Baby Veronica is, or is eligible for, enrollment as a citizen of the Cherokee Nation of Oklahoma.  By the way, the Cherokee Nation isn’t like your local public library—not just anyone can join.  It’s like the United States.  Not everyone can join us here—the U.S. has citizenship requirements.  It would be unintelligible to say that someone is 3/256 American, right?  You either are or are not a citizen of a nation.  The usage of blood quantum in this way by the Majority conflates Indian identity and tribal citizenship.  Scholars of all types (legal, humanities, and social sciences) continue to grapple with these concepts and recognize the entanglement of the racial and political.  An example might help. 
Some individuals may have a parent enrolled as a tribal citizen but the Tribe’s citizenship criteria may be such that the child is not eligible for citizenship. Nonetheless, the non-citizen child lives in the tribal community, participates in cultural activity, and is by all accounts a member of the tribal community.  The child identifies as an Indian, but is not a tribal citizen.  This is not that radical of an idea.  There are thousands of people in this country that recognize their underlying national heritage (speak the language, celebrate the national holidays, etc) but are not eligible for citizenship in that country. I fully concede that this is an easy error to make.  Furthermore, Indian identity politics, tribal enrollment (and disenrollment) issues, and indigenous citizenship are extraordinarily complex and extremely sensitive.  Professor Sarah Krakoff has an excellent article out that gives these concepts far better treatment than I have done here. These complexities, however, provide all the more reason for the Court to avoid becoming (needlessly) embroiled in them while perpetuating misconceptions about Indians.I make these observations to point out that there remains a fundamental and likely widespread misunderstanding, or innocent ignorance, of Indian-ness.
As I said above, there are racial and political components to current conceptions of Indian tribes and tribal member.  This problem will continue to impair tribal performance in the courts on issues like this in the future.  Until people stop conjuring up images of Johnny Depp as Tonto (opens July 3^rd!) or the Washington Redskins when they hear the word “Indian,” this isn’t going to change. I promise--this is not an anti-Indian mascot post.   But I do believe that the recent attention given to the Washington Redskins logo and trademark illustrates the larger problem regarding misconceptions about Indian identity and tribal communities. The issues with the imagery of Tonto, the Redskins, and the Majority’s emphasis of Baby Veronica’s blood quantum are all manifestations of these misconceptions and continue to harm Native people.
I’ll end on this brief personal note.  I’m an enrolled member of the Chickasaw Nation of Oklahoma, and grew up in Oklahoma.  I have two young children and my hope is that they encounter the statement, “you don’t look Indian,” less than I did.  That statement questions a person’s Indian-ness in the exact same way the Majority utilizes Baby Veronica’s blood quantum to delegitimize her status as an Indian. If they hear that less, it means we are moving in the right direction. The continuing misconceptions about Indian-ness are not going to go away anytime soon. But, I think that open discussions about the issues are essential to reform—even if we don’t have the right answers yet.  Such a process yields benefits to everyone, Indians and non-Indians alike.

 

Posted by Howard Wasserman Howard Wasserman, Law and Politics | Permalink TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341c6a7953ef019103db3c51970c