62 Children’s Legal Rights Journal [Vol. 37: 1 2017]
Native Hawaiians could vote for officials of the state’s Office of Native Hawaiian Affairs.364 It
employed a blood quantum requirement among other factors to determine eligibility.365 The state
relied on Mancari to argue that this distinction was political, instead of racial, but the Court
disagreed.366 Mancari and its progeny involved laws that singled out “‘a constituency of tribal
Indians,’” not “a ‘racial’ group consisting of ‘Indians,’” said the Court.367 The Hawaii law, by
contrast, “single[d] out ‘identifiable classes of persons . . . solely because of their ancestry or
ethnic characteristics.’”368 State law even defined the term “Native Hawaiian” as “any
descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to
[European contact] . . . [or] to the descendants of such blood quantum of such aboriginal
peoples.”369 This definition involved factors other than race, but that did not mean it was not a
ICWA plainly falls outside the bounds of Mancari.371 It applies not to members of tribes,
but to children who are both eligible for membership and biological children of members.372
Eligibility for tribal membership universally depends on biological ancestry.373 It follows
364 Id. at 498–99.
365 Id.at 510.
366 Id. at 518–22.
367 Id. at 519 (quoting Mancari, 417 U.S. at 553 n. 4).
368 Id. at 515 (quoting Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987)).
369 Id. at 516 (quoting HAW. REV. STAT. § 10-2 (1993)).
370 Id. at 516–17.
371 Courts addressing ICWA’s constitutionality of often been content simply to cite Mancari or similar cases,
without seriously weighing its applicability. For instance, in In re D.L.L. and C.L.L., 291 N. W.2d 278, 281 (S.D.
1980), the South Dakota Supreme Court summarily rejected an equal protection challenge to ICWA with the
conclusory assertion that ICWA is “based solely upon the political status of the parents and children and the quasi-sovereign nature of the tribe.” That case, however, involved children who were both tribal members and
domiciliaries of the reservation.
372 25 U.S.C. § 1903( 3), ( 4) (2012). ICWA does apply to children who are tribal members, but as membership
requires eligibility, the determinative factor is still eligibility, which is based on biology.
373 Even tribes like the Cherokee or Choctaw that impose no specific blood quantum still require lineal biological
descent from signers of Native censuses. See, e.g., CHEROKEE CONST. art. IV § 1; CHOCTAW CONST. art. II, § 1.