Excerpted from: Quintin Cushner and Jon M. Sands, Blood Should Not Tell: The Outdated Blood Test Used to Determine Indian Status in Federal Criminal Prosecution, 59-APR Federal Lawyer 31 (April, 2012). (44 footnotes omitted)
Blood should no longer play a leading role in determining whether a person is an Indian for purposes of federal criminal jurisdiction. The blood test evokes racial language in our jurisprudence that is outdated and unnecessary in 2012. A better test would discard blood and focus entirely on whether the person is enrolled or eligible for enrollment in a federally recognized Indian tribe.
Perhaps it is because of the way that blood can serve both as a symbol of our shared humanity (If you prick us, do we not bleed?) and our differences (Just one drop of black blood makes a man colored.) that we find it troubling that, for over a century and a half, federal courts have employed a blood test to assess whether a person is an Indian or a non-Indian for the purpose of federal criminal jurisdiction. Currently, in detemining whether an individual is an Indian for this purpose, federal courts examine that person's degree of Indian blood relating to a federally recognized tribe and his or her tribal or governmental recognition as an Indian.
In this article, we trace the use of the blood test in determining Indian status from its origins to its current applications. Ultimately, we conclude that, as applied by federal courts, the use of a blood test as a factor that determines Indian status both harks back to antiquated views and risks violating the Equal Protection Clause of the U.S. Constitution. Given these concerns, we believe that the use of the blood test for purposes of federal law should be relegated to the dustbin of history. Instead, tribal or governmental recognition of an individual as an Indian--only one prong of the two-pronged test that is currently used to determine a person's status as an Indian--is sufficient.