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June 25, 2013


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Paul Horwitz

Maybe it was a shot at Elizabeth Warren.

Jeffrey Harrison

Have not kept up with this but what are the qualifications necessary to be a member of the Cherokee Nation? The dad must have been 6/256th. From this it appears that Liz Warren made it easily. If so, why were Native Americans upset by her claims. I know this has nothing or little to do with law but I'd appreciate some enlightenment.


Well, it sure irked Justice Sotomayor and me too, but probably for different reasons. To me (a Dem, a minority, who voted for Obama, who supports affirmative action, reproductive choice and all the good things), the notion that the best interests of a child is overridden by the legislature when three of the child's great, great, great, great, great, great grandparents were Indian is morally awful. I suspect that Justice Sotomayor doesn't want her nose rubbed in that kind of bloodline typing. It smacks of Plessy and Korematsu, "one drop" and other odious pieces of racial law.

Try to figure out when your 256 ancestors of the 9th generation were living. The 1600's or 1700's most likely. The idea that the genetics of 3 of them trump your best interests is awful.


It's not relevant to an arbitrariness analysis under the EP Clause whether a law that designates someone as a Native American and affects their rights applies to someone who is only 3/256 Native American by ancestry?


The father has had custody of the child for over a year. Why wouldn't the ICWA protections be triggered now when the case is considered on remand even if (per the majority opinion) they should not have been considered when the case was decided?

william l reynolds

I did not know of this law. It is racist, no matter how well-intentioned. It reminds me of the Nuremberg laws; I have no idea (other than wrong precedent), whythis law doe not violate the 14th Amendment--both DP and EP

Jeffrey Harrison

So, as I understand it, the three women and Scalia vote against applying the standard of what is best for the child. I guess they found the rights of the father who had three ancestors probably in the 1700s who were Cherokee compelling. I don't agree with Conservatives most of the time but I never trust self-appointed liberals.

Orin Kerr

Dan, do you have answer to LurkingLawProf's question?


The ICWA defines an "Indian child" as a child who is an enrolled member (citizen) of an Indian tribe or a child whose parent is an enrolled member of a tribe and the child is eligible for enrollment. Each of the federally recognized Indian tribes in the United States determines their own enrollment criteria. This is a political classification, not a racial classification. (Morton v. Mancari, 1974)

To be an enrolled member of the Cherokee Nation, you must prove that you have an ancestor with Cherokee blood on the Dawes allotment rolls (i.g., your ancestor was living on Cherokee land when that land was divided up amongst the tribe into individual parcels of land). If you are not on this base roll, you cannot become a member, regardless of your degree of Cherokee blood.

The child's blood quantum is both irrelevant to the Cherokee Nation's citizenship requirement and to the provisions of ICWA itself. It was also a fact that appears no where in the record in this case -- it was claimed by the Petitioner for the first time in the US Supreme Court.


And the notion that the dissenting justices (or each one of the lower court decisions for that matter) ignored the best interests of the child is untrue. In enacting ICWA, Congress considered extensive testimony about how the best interests of Indian children would be served by preserving their ties with their biological parents, and their tribal culture. This child has been living with her biological father for more than 1 1/2 years. He is a decorated veteran, and a fit parent.

If you are interested in learning more about this case, you should consider reading the dozens of amicus briefs submitted by States, non-Indian organizations, and Indian tribes on behalf of the father and Cherokee Nation in this case.

Dan Filler

Orin, I am not an expert in American Indian law and in any case, it strikes me that an EP critique might be, at core, a general critique of special the special status of Native Americans and Indian tribes. If the point is that someone who is 3/256 Indian ought no longer be considered Indian in the way that someone who is 1/4 Indian might, and the reason for the distinction is that the EP clause both demands the distinction and trumps all other constitutional, statutory, or treaty-based considerations related to the special status, that issue is beyond anything I have studied.

But as far as I can tell, this is not presented as an Equal Protection case and it's not clear to me that this law prejudices the child in any case.


I am an Indian law scholar, and the quickest answer for why this does not implicate the EP clause is in my comment above. The statute is based on tribal citizenship. The tribe decides its citizenship criteria (which may include how much Indian blood a person has, but may also include other factors, such as place of birth, an ancestor's listing on a particular allotment roll, etc.). The federal government simply recognizes tribal citizens as individuals who are considered Indian for legal purposes. This is true for a plethora of legislation directed towards tribal members. In addition to Morton v. Mancari, cases like United States v. Antelope stand for this proposition.

paul spruhan

This has nothing to with the three fifths compromise, but an ongoing issue unique to Native Americans where status is defined by citizenship in a sovereign Indian nation but also defined by a federally-created document call a certificate of Indian blood. As discussed by some commenters above, tribes as sovereign nations may define their membership as they see fit, and being a citizen is what matters, regardless of the "amount" or "quantum" of "Indian blood", which like all such fractionated concepts of "race" has no real biological legitimacy, but nonetheless has immense legal and social power. The paradox for native people is that though federal law allegedly recognizes the absolute right for tribes to their define own membership, that same law as well as public perception will question the "indianness" of people depending on this antiquated notion of blood quantum. Alito's comment reflects the second prong of this issue- if you have allegedly little "blood" you're not Indian, and therefore statutes like ICWA which defers to sovereign Indian nation's membership criteria, are suspect and potentially unconstitutional. This was discussed in some detail during oral argument in this case, demonstrating the lack of real knowledge, or blatant contempt, for the sovereign right to declare who that tribe believes belong to them, and are therefore Indian. Indians did not create this system, but they are caught in it every time institutions such as the Supreme Court deal with legal issues in Indian law.

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