Expansion of Federal Benefits to Non-Native Adopted Children

Abstract

There is palpable tension between tribal sovereignty and federal administrative control in the distribution of federal benefits to members of Tribal Nations. This tension is felt by adopted non-Native children who might struggle to receive federal benefits even though the tribe of their adopted parent(s) has accepted them as a member. This Note explores how adoption of a non-Native child by a tribal member intersects with tribal membership and whether that membership should be enough for the child to receive federal benefits. The Note discusses four main topics, including: (1) tribal membership, adoption, and current federal enrollment criteria; (2) an analysis of “Indian” identity/classification; (3) cultural and economic considerations and the impacts of non-Native adoption; and (4) state adoption law and proposed deviation of current federal benefit eligibility requirements. By framing benefit eligibility through the lens of inherent tribal sovereignty, this Note contends that the federal government must treat tribal enrollment criteria as authoritative, not advisory, in determining whether an adopted non-Native child receives federal benefits. It sets forth policy recommendations: if Tribal Nations in their sovereign capacity are permitted to choose who can and cannot become members, they should also be permitted to choose which members are eligible to receive federal benefits. Therefore, current benefit eligibility criteria, including blood quantum levels, should give way to tribal choic