Racist Exclusionism: Blood Quantum and Immigration

In 2008, Peter Roberts was detained after being stopped at the border. His case became famous because he, a Native Canadian, owned property in the United States. After years of freely migrating between Canada and the United States, he was randomly prevented from doing so because he did not meet the stringent Blood Quantum requirements necessary to qualify for immigration under the Jay Treaty Free Passage Act and was ordered to be tried in front of a judge (Turnbull).

So, what is Blood Quantum? Blood Quantum today is a term used to define indigenity based on the amount of Native ancestry one has. I will discuss Blood Quantum in the context of immigration, but first, some context is needed.

In 1794, the United States and Britain signed a treaty called the “Jay Treaty ” because John Jay was the Secretary of State at the time ( Editors). The treaty was a tentative peace treaty between the newly formed United States and Britain. After the war of 1812, the majority of the treaty was abolished, except Article 3, which articulated that any Native American citizen had to ability to freely travel between what is now Canada, and the United States (Smith). This part of the treaty is still in effect today. This is now called the “Jay Treaty Free Passage Act” (Smith).

Image result for Jay Treaty article 3

Amaral, Angelina
A photo with the exact text of the Jay Treaty in 1794

In 1951, a stipulation was added to the Jay Treaty: in order to prevent abuse of the treaty, one had to present both a tribal citizenship card (proof that a native tribe certified the individual as a Native) and proof of at least 50% native blood

Why I am interested

I discovered the topic of settler colonialism through debate. In debate, there are arguments made against action because one side claims that the other side in the debate is affirming a policy that harms Native Americans. However, I never really learned deeply about the United States’ settlers history. Instead, debate was just a catalyst that made me realize how interested I am in native politics. Even before debate, I was shocked at how little my middle school classmates seemed to care about the Dakota Access Pipeline in comparison to other liberal political views like abortion or socialized health care. I did not understand this viewpoint at all. In summation, I always knew that I had an interest in native politics, but debate exposed me to arguments like settler colonialism. However, discovered blood quanta on my own, and it is something that I truly care about.

Historical Problems

In the United States, there was nativist backlash against indigenous people even before the 13 colonies became the United States. Settlers arrived in America with the intention of killing Native Americans and taking their land, knowing full well there were people already living where they were about to settle (Jacobs). One main example of this is Bacon’s Rebellion, in 1676. Nathaniel Bacon led an uprising for many reasons, one of which was that the Virginia state government was giving Native Americans too many protections, and not allowing Bacon to steal their land and pillage their homes (History Notes).

Bacon’s Rebellion is very emblematic of the mindset people had about natives from then, all the way until the 1900s, proven by the Indian Removal Act of 1830. In 1830, Andrew Jackson ordered thousands of  Cherokee Native Americans off their land to a new living area in Oklahoma. Although the Supreme Court ruled this unconstitutional, the will of the people backed it and Andrew Jackson still evicted and forced thousands of natives to walk thousands of miles to their new living area (History Notes).

After decades of policies and actions like the Indian Removal Act, the government decided to change the way it approached nativity. Introduced in 1924, under Calvin Coolidge, the Blood Quantum requirement allowed Natives to become citizens of the United States, and was at the time considered a very socially liberal thing to do. What was stated at the time was that Natives can be citizens and that anyone with one quarter or more Native blood is considered a Native American citizen, which was distinct from a “normal” citizen (Hair). To clarify, the term “Blood Quantum” only refers to defining natives per the amount of native blood they have. However, the intention of this law was not to incorporate natives into America, because that would have given them a voice. The real intention was to legally eliminate anyone from being classified as a native. The theory was that after a few generations of inter-race relationships, nobody would have one-quarter native blood, and the settler state would no longer have to worry about its appearance in regard to natives. This use of Blood Quanta was problematic because of its intentions, and also because it prevented natives from defining their own identity.

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“Indian Citizenship Act.”
Calvin Coolride After signing the 1924 Indian Citizenship Act

After the 1927 implementation, the two main expansions until the present day of Blood Quantum were in 1947 and 1951. In 1947, a bill was passed that required Native Americans to prove they had ½ native blood in order to buy land reserved for natives. Secondly, in 1951 the United States and Canada implemented an extension to the Jay Treaty, requiring natives to prove they had at least ½ indigenous blood, which then allowed them to cross the border freely, as opposed to just migrating without restrictions. All of these laws and acts enacted by the government have been opposed by Native Americans, but with little rights and say in what the government does, little success has been made for Natives. Not only that, but many Native Americans support Blood Quantum legislation (Tobar, Hector).

This article has a very good explanation of the United States Government’s eliminatory history against natives if you would like more explanation of the problem.

Patrick Wolfe: Settler Colonialism and the Elimination of the Native

Here is a link to my full essay if you would like more information about the history of the problem.

Present day problems

Currently, the largest problem today is Blood Quantum as it relates to immigration.

As I mentioned earlier, Article 3 of Jay’s Treaty in 1794 allowed Native Americans to migrate freely across the Canadian-American border legally. As said above, in 1951 a rule was passed that, in order to be constituted as a Native American at the border, one must present both a tribal citizenship card and proof of at least 50% native blood (Smith). This serves as a problem for multiple reasons.

Call to Action

It is crucial to inform immigration officials how the Jay Treaty Free Passage Act operates. Currently, along the border, within the USCIS (United States Center for Immigration Services), and within the SSA (Social Security Administration), there is a broad misunderstanding among officials what credentials are needed in order to cross the border, what their role is in determining whether Natives can migrate and whether Natives can access social services. This misinformation leads to legal malpractice such as Native Americans not being able to access social services (Smith). The main reason that there is miscommunication surrounding the Jay Treaty is that the way it’s currently worded is full of jargon that immigration officials cannot understand. Therefore, a relatively noncontroversial way to start change surrounding Blood Quanta would be to inform immigration officials how the legislation actually works. Even worse, sometimes government websites have different information than the actual legal text, which means that those officials are more likely to deviate from what is legal, thereby harming Natives. The solution to this particular issue is very straightforward: hire legal professionals to decipher the treaty and put it into basic English. From there, ordinary people like you and I should try to contact officials enforcing these laws and tell them what is codified within the Jay Treaty and what is not. This could occur over the phone, or in a visit to the United States-Canada border. Such grassroots action would circumvent many of the problems that stem from governmental action, some of which I will describe below.

Here is a link to my full Call To Action Essay if you would like more detail on solutions.

Large Scale Solutions

I believe that deferring control of the US-Canada border to Native Americans is optimal, for it would allow a gradual yet substantial change in the way that we view political action and does not legitimize the United States Federal government.

           So, what does it mean to defer immigration control of our northern border to Native Americans? In the most basic sense, instead of the current bodies who adjudicate who can enter and exit the United States, an organization created by the National Congress of American Indians would oversee said process. This would solve the problem of Native exclusion in the status quo.

           This action would be separate from simply ending Blood Quantum requirements. The main issue with just changing the law is that the root cause of the problem remains unchecked. Trusting the United States Federal government is dangerous since the government has both created the exact problems we would be relying on them to fix and has claimed to be helping Native Americans in the past, just to abuse them again. One example of this is the creation of blood quantum in the Dawes Act of 1924 (Jacques, et al). Therefore, continuing to turn to the government to solve all of the problems it created runs the risk that nothing will change because the nature of government will not change; thus, we should alter how society solves problems regarding Natives, by allowing Native Americans to control immigration and not the government (Paperson, Wang).

Here is a link to all the works I have cited for this project

Have any question, comments, or concerns? Feel free to comment down below and I’ll be sure to get back to you as soon as I can!

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  1. April 26, 2019 by Chloe.Smith-Frank

    Hi Cole,
    I had no idea this Treaty existed and I found your project incredibly fascinating and impressive. I have what I guess is more of a logistical question: how would one prove 50% Native ancestry? Do people have to provide family trees, or would results from a DNA testing service like 23AndMe be enough (especially since the accuracy of those tests has been questioned)?

    • April 29, 2019 by Cole.Wogan

      Yeah, that’s the completely logical response that I had as well! The problem is, government websites don’t specify, nor does the text of the treaty. Birth certificates are acceptable, but I couldn’t find any information about DNA testing services anywhere.

  2. April 27, 2019 by Dominick.Quaye

    Thanks! This was really informative! This argument specifically I liked : “Therefore, continuing to turn to the government to solve all of the problems it created runs the risk that nothing will change because the nature of government will not change; thus, we should alter how society solves problems regarding Natives, by allowing Native Americans to control immigration and not the government”.—– Do you think that this stance of giving Natives more jurisdiction over their own issues could be effective in solving other issues affecting them?

    • April 29, 2019 by Cole.Wogan

      Yes and no for a couple of reasons. Yes because it’s much harder for governmental discrimination to occur without jurisdiction over controversial fields. However, the 1934 Indian Reorganization Act gave Native Americans more jurisdiction over land control and purchasing rights (and largely adopted a stance of allowing tribes to govern themselves), but it was only partially successful. I do think that present-day instances of this type of political stance could be very beneficial though.

  3. April 27, 2019 by Eliana Jenkins

    I also had no idea the Jay Treaty existed and was unfamiliar with Blood Quantum. Your campaign is really informative and relevant to some of the things we need to care about today. I’m surprised this is my first time hearing about this. Does this mean the government is doing absolutely nothing at the moment to change the way these laws affect Native Americans?

    • April 29, 2019 by Cole.Wogan

      The majority of the government is doing basically nothing. In 2017 the Stiegler Act (another instance of racist Blood Quanta) was overturned, but even with the removal of Blood Quantum in the Jay Treaty being proposed in Congress, the movement has almost no political traction.

  4. April 29, 2019 by Brandon.Byrd

    Wow! This is so informative!

  5. April 29, 2019 by Brandon.Byrd

    Great paper! I have one question; If Native American tribes use Blood Quanta as the metric for determining whether someone is a member of the tribe, why is the Blood Quanta requirement in the text of the Jay Treaty any different?

    • May 01, 2019 by Cole.Wogan

      Great question! The reason that the uses are different is because 1). allowing Natives to control who is Native (ie. set the standard for the amount of blood needed to be considered a “Native”) is very different than the government imposing their view of who is and isn’t Native and 2). The National Congress of American Indians is very explicitly against this law.

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