or who is eligible for membership and is the biological child of a tribal member. 37 Meanwhile,
virtually all Indian tribes define eligibility for membership in terms of ethnic heritage or
ancestry. 38 Federal regulations impose no minimum blood quantum. 39 This means that tribal
determinations as to whether a child is Indian are determinative—and a child can qualify as an
Indian child for purposes of ICWA based on one drop of Indian blood.
The Cherokee Constitution, for example, defines eligibility solely based on whether a
person has a direct ancestor on the Dawes Rolls. 40 Other tribes define membership by blood
quantum. Under Navajo law, for instance, a person is eligible for membership if he or she “is at
least one-fourth degree Navajo blood.” 41 Still other tribes require blood quantum, but not tribal
affiliation. Thus, the Gila River Indian Community entitles “[a]ll children of members . . . [who]
are of at least one-fourth Indian blood” to membership. 42 This means that a child who is, say, the
child of a tribal member, but who has only one percent Gila River ancestry, and twenty-four
percent Navajo ancestry, is eligible for membership in the Gila River Indian Community (but
37 Id. § 1903( 4).
38 See generally Kirsty Gover, Genealogy As Continuity: Explaining the Growing Tribal Preference for Descent
Rules in Membership Governance in the United States, 33 AM. INDIAN L. REV. 243 (2009).
39 Guidelines, 80 Fed. Reg. at 10153, B. 3(c)( 1).
40 CHEROKEE CONST. art. IV § 1. The Dawes Rolls, or Final Rolls of Citizens and Freemen of the Five Civilized
Tribes, was an attempted census of tribal membership overseen by the Dawes Commission in 1898. The rolls were
closed in 1907, although some names were added in 1914. The rolls are problematic evidence of Indian ancestry for
several reasons. First, many Indians refused to sign the rolls. ERIK M. ZISSU, BLOOD MATTERS: THE FIVE
CIVILIZED TRIBES AND THE SEARCH FOR UNITY IN THE TWENTIETH CENTURY 26 (2001). Thus, even full-blooded
Cherokee are today ineligible for tribal membership if a direct ancestor did not sign. Also, the Dawes Commission
mandated that Indians identify with a single tribe when signing, even though tribal membership and ancestry often
overlapped. As a result, non-Indian enrollment agents often arbitrarily assigned enrollees to one tribe or another.
See generally S. Alan Ray, A Race or A Nation? Cherokee National Identity and the Status of Freedmen’s
Descendants, 12 MICH. J. RACE & L. 387 (2007) (discussing how the Dawes era’s “reliance on nineteenth-century
race science” distorted tribal consciousness and channeled it into a racial or biological construct). The Cherokee
National Citizenship Act purports to make all eligible children automatic members of the tribe for a period of 240
days after birth in order to expand tribal authority under ICWA. The Tenth Circuit Court of Appeals has rejected
“this sort of gamesmanship on the part of a tribe.” Nielson v. Ketchum, 640 F.3d 1117, 1124 (10th Cir. 2011), cert.
denied, 132 S.Ct. 2429 (2012).
41 NAVAJO NATION CODE ANN. tit. i, § 701(B) (2016).