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Wednesday, June 26, 2013

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 3rd!) 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 on June 26, 2013 at 02:35 PM in Howard Wasserman, Law and Politics | Permalink

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Great post. Thanks for joining the discussion given the number of frustrating counter posts out there (including the discussion on the faculty lounge).

Posted by: Colette | Jun 27, 2013 10:09:06 AM

Yikes, Colette. I just posted a comment over there too.

Posted by: Kate | Jun 27, 2013 1:25:20 PM

This reminds me of an old poem from when I was a kid:
Fuzzy Wuzzy was a bear, Fuzzy Wuzzy had no hair. So Fuzzy Wuzzy wasn't fuzzy, was he?
Fuzzy Wuzzy was a bear, Fuzzy Wuzzy had one hair. Was Fuzzy Wuzzy fuzzy?
Fuzzy Wuzzy was a bear, Fuzzy Wuzzy grew more hair. When was Fuzzy Wuzzy fuzzy?

If 3/256 isn't "Indian enough," is 4/256? 5/256? How does one quantify "Indian enough" if the tribes themselves aren't allowed to make that determination and have it unquestionably recognized?

Posted by: Denise | Jun 27, 2013 1:55:52 PM

I previously posted here, but it appears not to have been included. I too have commented on the curious post at Law Faculty Lounge. My original message was to congratulate Alex on his fine post on this important issue.

Posted by: paul spruhan | Jun 27, 2013 3:03:14 PM

Well this issue does address the idea of remote ancestry which is interesting and makes sense because it is reality and doesn't romanticize a one drop rule which was used for African Americans in the past to delete ones other more dominant heritage and put one in an un real category, simply because your remote ancestor appeared on a roll and now you have 1 percent but are 99% something else so you need to be in that 1% percent culture is not logical. However the dad also did abandoned the baby girl but maybe now he wants her casino check allotment and the CN Cherokee nation of Oklahoma appears to be made up of pale faces using a benefit made for a people of color,where's the color then?
It too is amazing to note how the CN fought hard to keep the abandoned daughter of a Pale faced quite European looking CN citizen but yet wants to kick out all the Cherokee Freeman descendants!
Guess they must be too dark?

Posted by: Raymund Siles | Jun 27, 2013 3:03:58 PM

The freeman that the CN Cherokee Nation want to kick out some of them may quite possibly have more than 1% percent Cherokee blood but yet the CN wants so bad to kick them all out and eliminate that hard obvious trace of African ancestry because the old dawes rolls doesn't show by Blood quantum for the CN freeman they do however since you talk about the tribe must choose whose is a member and they did choose to keep the Cherokee Freeman as members after slavery ended, so why isn't this the criteria being used as a basis for the freeman then?
Some freeman claim to of had Cherokee ancestors by Blood not just as slaves just as African Americans have Anglo blood they too can have Indian blood and probably some of the people that got on the dawes rolls may not of even been Indians by blood but adopted people,step relatives, illegitimate offspring or white people that payed there way onto the rolls.

Posted by: Raymund Siles | Jun 27, 2013 3:13:25 PM

But like it or not, every tribe requires a blood quantum. Whether it is a percentage or the result of someone being on a roll someplace. It is also important to remember that the rolls were not perfect. A lot of people were excluded out of choice or mistakes or malice. And why can't that child whose parents are tribal citizens become a citizen as well? ah! its that blood quantum thing again.

Posted by: Philp | Jun 27, 2013 3:46:42 PM

Great post, Professor Pearl!

Posted by: Catherine Munson | Jun 28, 2013 8:44:38 AM

It seems to me that the true issue, that of a Tribe's Sovereign power to determine citizenship, continues to be buried by, and under the weight of, colonial constructs.

Posted by: Brent Snavely | Jun 28, 2013 10:49:21 AM

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