Turtle Talk

New Student Scholarship on Tribal Citizenship and Blood Quantum

April 26, 2023Matthew L.M. Fletcher

Ashleigh Lussenden has published a Note, “Blood Quantum and the Ever-Tightening Chokehold on Tribal Citizenship: The Reproductive Justice Implications of Blood Quantum Requirements,” in the California Law Review. PDF

The abstract:

Blood often serves as the basis for identity for many groups in the United States. Native Americans, however, are the only population in which blood is a requirement for collective belonging and can be the determining factor for whether one receives tribal benefits and services. Many Tribal Nations use blood quantum, the percentage of Indian blood one has, as a bright-line rule to determine qualification for tribal membership. Initially established as a colonial tool of dispossession and assimilation, tribes adopted blood quantum to ensure the preservation of culture and community.

This Article contends that tribal adoption of blood quantum limits tribal members’ reproductive autonomy and violates the tenets of reproductive justice. Forcing tribal members to consider the blood quantum of their future children limits individual choice of partner and the manner in which tribal members choose to build their families. This limitation of autonomy and violation of reproductive justice principles is especially stark when analyzed in combination with contemporary pressures on Native conception and parenting, including urban migration, dysgenic environmental impacts on fertility, sexual violence, and inadequate, underfunded, and abusive reproductive healthcare. Collectively, these pressures decrease fertility, the number of available partners, and the ability for Native people to conceive and parent within their own communities.

By applying the principles of reproductive justice, Tribal Nations may begin to reassess what belonging means in Native communities and how tribal membership policies can support reproductive autonomy. The current rise of nation-building and concentrated push for self-determination in Native communities provides a unique opportunity to interrogate the priorities of tribal membership requirements and reimagine inclusion and collective belonging in Native Nations.

D.C. Circuit Rejects Federal Recognition of “Pilchuk Nation”

April 26, 2023Matthew L.M. Fletcher

Here are the materials in Kanam v. Bureau of Indian Affairs:

Order

Kanam Opening Brief

Answer Brief

ICWA Application Case out of Nebraska Supreme Court

April 25, 2023Kate Fort

Opinion here: N00009406PUB

At Fed Bar this year, I spoke about concerns regarding the definition of an Indian child for the purposes of ICWA when the child is eligible and the parent is a tribal member. This is the third case I’ve seen where there is an argument that a parent’s eligibility should be enough. Unfortunately, this isn’t the definition, and it has been an unsuccessful argument.

We hold that evidence that the tribe “considered” Amber a member for purposes of ICWA is insufficient. The plain language of § 43-1503(8) provides as relevant that an “Indian child” must have a biological parent who is a member of a tribe. The evidence adduced in the juvenile court shows that Amber is not currently a member of the tribe; the children, in turn, do not have a biological parent that is a member of the tribe.

One practice tip may be for tribes to apply for permissive intervention under the state court rules rather than the mandatory intervention under ICWA. This may be compelling for a judge when a parent is in the process of becoming a tribal member–at which point, ICWA would apply moving forward.