A Medley of Potpourri: Blood quantum laws

Tuesday, March 19, 2019

Blood quantum laws

From Wikipedia, the free encyclopedia

Members of the Muscogee (Creek) Nation in Oklahoma around 1877, including some with partial European and African ancestry

Blood quantum laws or Indian blood laws are those enacted in the United States and the former Thirteen colonies to define qualification by ancestry as Native American, sometimes in relation to tribal membership. These laws were developed by European Americans and thus did not necessarily reflect how Native Americans had traditionally identified themselves or members of their in-group, and thus ignored the Native American practices of absorbing other peoples by adoption, beginning with other Native Americans, and extending to children and young adults of European and African ancestry. Blood quantum laws also ignored tribal cultural continuity after tribes had absorbed such adoptees and multiracial children. Tribal enrollments were often incomplete or inaccurate for multiple reasons; individuals didn't trust the government and so they refused to enroll, families relocated before censuses were taken, or individuals were incorrectly identified by white men, whom were the census takers.

A person's blood quantum (abbreviated as BQ) is defined as the fraction of their ancestors, out of their total ancestors, who are documented as full-blood Native Americans. For instance, a person who has one parent who is a full-blood Native American and one who has no Native ancestry has a blood quantum of 1/2. Since re-establishing self-government and asserting sovereignty, some tribes may use blood quantum as part of their requirements for membership or enrollment, often in combination with other criteria. For instance, the Omaha Nation requires a blood quantum of 1/4 Native American and descent from a registered ancestor for enrollment.

In 1705 the Colony of Virginia adopted laws that limited civil rights of Native Americans and persons of one-half or more Native American ancestry. The concept of blood quantum was not widely applied by the United States government until the Indian Reorganization Act of 1934. At that time, the government required persons to have a certain blood quantum to be recognized as Native American and be eligible for financial and other benefits under treaties or sales of land.

Since that time, however, Native American nations have re-established their own governments, asserting sovereignty in setting their own rules for tribal membership, which vary among them. In some cases, individuals may qualify as tribal members, but not as American Indian for the purposes of certain federal benefits, which are still defined in relation to blood quantum. In the early 21st century, some tribes, such as the Cherokee and Wampanoag, tightened their membership rules and excluded persons who had previously been considered members. Challenges to such policies have been pursued by those excluded. Though individuals can self-identify as Native American, Native Americans are the only racial group in the United States that has to have proof of ancestry to receive government benefits.

Origin of blood quantum law

European Americans passed "Indian Blood law" or blood quantum law to regulate who would be classified as Native American. The Constitution uses the word “Indian” twice but never bothers to define it. The first such law was passed in 1705 in the Colony of Virginia, to define Native Americans and to restrict the civil rights of people who were half or more Native American. In the 19th and 20th centuries, the US government believed tribal members had to be defined, for the purposes of federal benefits or annuities paid under treaties resulting from land cessions.

Many traditionalist Native Americans, known as “irreconcilables” or “blanket Indians,” were so suspicious of the government that they refused to enroll at all, making all their descendants unenrollable as well. Many Native American tribes did not use blood quantum law until the government introduced the Indian Reorganization Act of 1934. Some tribes, such as the Navajo Nation, did not adopt the type of written constitution suggested in that law until the 1950s. Given intermarriage among tribes, particularly those that are closely related and have settled near each other, critics object to the federal requirement that individuals identify as belonging to only one tribe when defining blood quantum. They believe this reduces an individual's valid membership in more than one tribe, as well as costing some persons their qualification as Native American because of having ancestry from more than one tribe but not 1/4 or more from one tribe. Overall, the numbers of registered members of many Native American tribes have been reduced because of tribal laws that define and limit the definition of acceptable blood quantum.

"The U.S. census decennial enumerations indicate a Native American population growth for the United States that has been nearly continuous since 1900 (except for an influenza epidemic in 1918 that caused serious losses), to 1.42 million by 1980 and to over 1.9 million by 1990." In the 2000 census, there were 2.5 million American Indians. Since 1960, people may self-identify their ancestry on the US Census. Indian activism and a rising interest in Native American history appear to have resulted in more individuals identifying as having Native American ancestry on the census.

For decades, individual tribes had established their own requirements for membership. In some cases, they have excluded members who had long been part of the tribe. Common tribal membership requirements required documented lineal descent from a Native American member listed on a prior tribal rations-issue roll, or the Dawes Rolls for the 'Five Civilized Tribes' in Oklahoma, or a late 19th-century census; in some cases they may also require a certain percentage of Native American ancestry, and demonstrated residence with a tribe or commitment to the community. Unlike the provisions of the Indian Reorganization Act, many tribes allow members to claim ancestry in more than one tribe. For instance, the Little Traverse Bay Bands of Odawa Indians accept persons of 1/4 North American Indian ancestry, plus documented descent from an ancestor listed in specific records. In part, this recognizes that the Odawa people historically had a territory on both sides of what is now the border between the US and Canada.

Each federally recognized tribe has established its own criteria for membership. Given the new revenues that many tribes are realizing from gambling casinos and other economic development, or from settlement of 19th-century land claims, some have established more restrictive rules to limit membership.

In 2007 the Cherokee Nation voted in the majority to exclude as members those Cherokee Freedmen who had no documented ancestors on the Cherokee-by-blood list of the Dawes Rolls. However, the Cherokee Supreme Court ruled in 2005 that they were legitimate members of the tribe at that time. After the Civil War, the US required the Cherokee and other Native American tribes that had supported the Confederacy to make new treaties. They also required them to emancipate their slaves, and to give full tribal membership to those freedmen who wanted to stay in tribal territory. The Cherokee Freedmen often had intermarried and some had Cherokee ancestry at the time of the Dawes Rolls, qualifying as Cherokee by blood, but registrars typically classified them as Freedmen; registration was often inaccurate. Many individuals also refused to enroll or become documented because they didn't trust the government.

Similarly, in 2000, the Seminole Nation of Oklahoma attempted to exclude two bands of Seminole Freedmen from membership to avoid including them in settlement of land claims in Florida, where Seminole Freedmen had also owned land taken by the US government.

Since 1942, the Seminole have at times tried to exclude Black Seminoles from the tribe. The freedmen were listed separately on the Dawes Rolls and suffered segregation in Oklahoma. More recently, the Seminole refused to share with them the revenues of 20th-century US government settlements of land claims. The Center for Constitutional Rights has filed an amicus brief, taking up the legal case of the Black Seminoles and criticizing some officials of the Bureau of Indian Affairs for collaborating in this discrimination by supporting tribal autonomy in lawsuits. By treaty, after the American Civil War, the Seminole were required to emancipate slaves and provide Black Seminoles with all the rights of full-blood Indian members.

American Indian tribes located on reservations tend to have higher blood quantum requirements for membership than those located off reservation....[reference to table] [O]ver 85 percent of tribes requiring more than a one-quarter blood quantum for membership are reservation based, as compared with less than 64 percent of those having no minimum requirement. Tribes on reservations have seemingly been able to maintain exclusive membership by setting higher blood quanta, since the reservation location has generally served to isolate the tribe from non-Indians and intermarriage with them.

Issues related to blood quantum laws

Many Native Americans have become used to the idea of "blood quantum". The blood quantum laws have caused problems in Native American families whose members were inaccurately recorded as having differing full or partial descent from particular tribes. In some cases, family members or entire families have been excluded from being enrolled as members of their tribe even when they have no non-Native American ancestors.

At certain times, some state governments classified persons with African American and Native American admixture solely as African American, largely because of racial discrimination related to slavery history and the concept of the one drop rule. This was prevalent in the South after Reconstruction, when white-dominated legislatures imposed legal segregation, which classified the entire population only as white or colored (Native Americans, some of whom were of mixed race, were included in the latter designation). It related to the racial caste system of slavery before the American Civil War. Until 1870 there was no separate classification on the census for Indian.

The Lumbee, a group that appeared to organize from a variety of free people of color on the North Carolina frontier in the 19th century, achieved state recognition as Croatan Indian in 1885 after Reconstruction. This separate status allowed them to establish a school system for their children distinct from that for freedmen's children.

The question of identity is complex. Researcher Paul Heinegg and Dr. Virginia DeMarce found that ancestors of 80 percent of free people of color (including individuals on the census later claimed as Lumbee ancestors) in the 1790 and 1810 censuses on the North Carolina frontier were descended from families of white women and African men, and were free in colonial Virginia because of the mother's status. Many mixed-race people in frontier areas identified as Indian, Portuguese or Arab to escape racial strictures.

In 1952 the Croatan Indians voted to adopt the name of Lumbee. (They were settled near the Lumber River, also called the Lumbee.) They achieved limited federal recognition in 1956 as an ethnic Indian nation by a special act of the US Congress, and accepted at the time that it was without benefits. Since then, they have tried to appeal to Congress for legislation to gain full federal recognition. Their effort has been opposed by several federally recognized tribes.

In other cases, because mixed-race children were often raised in the mother's Native American culture, U.S. society considered them Native American, despite European ancestry. (As the trappers, traders and soldiers on the frontiers were mostly men, for some time most European-Native American unions were between European men and Native women.)

In 1924 Virginia passed the Racial Integrity Act, which required that every individual be classified as either white or black. (Some other states adopted similar laws.) In application, the law was enforced to the standard of the "one drop rule": individuals with any known African ancestry were classified as black. As a result, in the censuses of the 1930s and the 1940s, particularly in the South's segregated society, many people of African American and Native American heritage who were either biracial or multiracial were largely classified as black, even though they identified culturally as Native American. The result negatively affected many individuals with mixed African American and Native American heritage. Because there are few reservations in the South, such individuals had to provide evidence of ancestry to enroll in a tribe. The changes in historic records erased their documentation of continuity of identity as Indian. During the early years of slavery, some Native Americans and Africans intermarried because they were enslaved at the same time and shared a common experience of enslavement. Others made unions before slavery became institutionalized, as they worked together.

Today, the proposed regulations for children adopted into Native families are that they may not be federally recognized members unless they have a biological parent who is enrolled in a tribe. Such cases of adoption are probably less frequent than in the past. Historically, especially recorded during the colonial years and the 19th century in the American West, many tribes adopted young captives taken in war or raids to replace members who had died. Whether European or of another Native American tribe, the captives generally were fully assimilated into the tribal culture and were considered full members of the tribe. Generally, they remained with the tribe, marrying other members and rearing their children within the cultural tradition.

In some cases, census rolls for tribes such as the Cherokee were incomplete due to intermarriage, immigration, treaties, or because the members were not living within the boundaries of the nation, and thus would not be recorded on the census. However, as noted above many people have identified as Native American on the US Census but are not eligible for tribal enrollment.

Some critics argue that blood quantum laws helped create racism among tribal members. The historian Tony Seybert contends that was why some members of the so-called Five Civilized tribes were slaveholders. The majority of slave owners were of mixed-European ancestry. Some believed they were of higher status than full-blood Indians and people of African ancestry. Other historians contend that the Cherokee and other tribes held slaves because it was in their economic interest and part of the general southeastern culture. Cherokee and other tribes had also traditionally taken captives in warfare to use as slaves, though their institution differed from what developed in the southern colonies.

Issues with DNA ancestry testing

No federally recognized tribe enrolls members solely based on DNA testing, as it generally cannot distinguish among tribes. Some tribes may require DNA testing only to document that a child is related to particular parents. Many researchers have published articles that caution that genetic ancestry DNA testing has limitations and should not be depended on by individuals to answer all their questions about heritage.

Many African Americans may have some Native American ancestry. But, in the PBS series led by historian Henry Louis Gates, Jr., called African American Lives, geneticists said DNA evidence shows that African-Native American admixture may not be that common. Gates summarized the data:

Only 5 percent of African Americans have at least one-eighth Native American ancestry (equivalent to one great-grandparent). On the other hand, nearly 78 percent of African Americans have at least one-eighth European ancestry (the equivalent to a great-grandparent), and nearly 20 percent have at least one-quarter European ancestry (the equivalent to a grandparent.)

Some authors, assert a much higher percentage of Native American ancestry because many people of African American descent knew about their Native American relatives, but felt that to acknowledge it would be to deny their African heritage. However, now many acknowledge both their African and Native American heritage.

Some critics thought the PBS series African American Lives did not sufficiently explain such limitations of DNA testing for assessment of heritage. In terms of persons searching for ethnic ancestry, they need to understand that Y-chromosome and mtDNA (mitochondrial DNA) testing looks only at "direct" line male and female ancestors, and thus can fail to pick up many other ancestors' heritage. Newer DNA tests can survey all the DNA that can be inherited from either parent of an individual, but at a cost of precision. DNA tests that survey the full DNA strand focus on "single nucleotide polymorphisms" or SNPs, but SNPs might be found in Africans, Asians, and people from every other part of the world. Full survey DNA testing cannot accurately determine an individual's full ancestry. Though DNA testing for ancestry is limited more recent genetic testing research of 2015, have found that varied ancestries show different tendencies by region and sex of ancestors. These studies found that on average, African Americans have 73.2-82.1% West African, 16.7%-29% European, and 0.8–2% Native American genetic ancestry, with large variation between individuals.

Implementation

Many Native American tribes continue to employ blood quantum in current tribal laws to determine who is eligible for membership or citizenship in the tribe or Native American nation. These often require a minimum degree of blood relationship and often an ancestor listed in a specific tribal census from the late 19th century or early 20th century. The Eastern Band of Cherokee Indians of North Carolina, for example, require an ancestor listed in the 1924 Baker census and a minimum of 1/16 Cherokee blood inherited from their ancestor(s) on that roll. Meanwhile, the Cherokee Nation requires applicants to descend from an ancestor in the 1906 Dawes roll (direct lineal ancestry), but does not impose minimum blood quantum requirement. The United Keetoowah Band requires a minimum 1/4 blood quantum.

The Ute require a 5/8 blood quantum, the highest requirement of any American tribe. The Miccosukee of Florida, the Mississippi Choctaw, and the St. Croix Chippewa of Wisconsin all require one-half "tribal blood quantum", also a high percentage.

At the other end of the scale, some tribes, such as the Kaw Nation, have no blood quantum requirement.

Many tribes, such as Alabama-Quassarte Tribal Town and the Wyandotte Nation, require an unspecified amount of Indian ancestry (known as "lineal descendancy") documented by descent from a recognized member. Others require a specified degree of Indian ancestry but an unspecified share of ancestry from the ancestral tribe or tribes from which the contemporary tribal entity is derived, such as the Grand Traverse Band of Ottawa and Chippewa Indians and the Poarch Band of Creek Indians. Many tribes today are confederations of different ethnic groups joined into a single political entity making the determination of blood quantum challenging.

Other tribes require a minimum blood degree only for tribal members born "off" (outside) the nominal reservation. This is a concept comparable to the legal principles of Jus soli and Jus sanguinis in the nationality laws of modern sovereign states.

Tribes requiring 1/2 degree blood quantum for membership

(equivalent to one parent)

Tribes requiring 1/4 degree blood quantum for membership

(equivalent to one grandparent)

Absentee-Shawnee Tribe of Indians, Oklahoma
Ak-Chin Indian Community, Arizona
Blackfeet Tribe of the Blackfeet Indian Reservation of Montana
Cheyenne and Arapaho Tribes, Oklahoma
Confederated Tribes and Bands of the Yakama Nation, Washington
Confederated Tribes of the Chehalis Reservation, Washington
Ho-Chunk Nation of Wisconsin Wisconsin
Hopi Tribe of Arizona
Kickapoo Traditional Tribe of Texas
Kickapoo Tribe of Oklahoma, Oklahoma
Kiowa Tribe of Oklahoma, Oklahoma
Fort McDowell Yavapai Nation, Arizona
Fort Peck Assiniboine and Sioux Tribes, Montana
Lac du Flambeau Ojibwe Nation, Wisconsin
Mohawk Tribe, New York and Ontario/Quebec, Canada
Navajo Nation, Arizona, Utah and New Mexico
Oneida Tribe of Indians, Wisconsin
Pascua Yaqui Tribe, Arizona
Penobscot Nation, Maine
Poarch Band of Creek Indians, Alabama
Prairie Band Potawatomi Nation, Kansas
Seminole Tribe of Florida, Florida
Shoshone Tribe of the Wind River Reservation, Wyoming
Standing Rock Sioux Tribe, North and South Dakota
United Keetoowah Band of Cherokee Indians, Oklahoma
Utu Utu Gwaitu Paiute Tribe, California
Yavapai-Prescott Tribe, Arizona
Zuni Pueblo (Ashiwi), New Mexico

Tribes requiring 1/8 degree blood quantum for membership

(equivalent to one great-grandparent)

Tribes requiring 1/16 degree blood quantum for membership

(equivalent to one great-great-grandparent)

Tribes determining membership by lineal descent

These tribes do not have a minimum blood quantum requirement, but members must be able to document descent from original enrollees of tribal rolls.

Tribes determining membership by both blood quantum and lineal descent

These tribes require both a specified blood quantum and lineal descent from an individual on a designated tribal roll.

Confederated Tribes of the Umatilla Indian Reservation – Since 1993, have required 1/4 descent from any federally recognized Native American tribe, plus being the biological child or grandchild of an already-enrolled member.
Grand Traverse Band of Ottawa and Chippewa Indians
Little Traverse Bay Bands of Odawa Indians
Little River Band of Ottawa Indians
Poarch Band of Creek Indians

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