Below is my column in The Hill Newspaper on the long-standing debate over self-identification of race — an issue brought again to the forefront by the Elizabeth Warren controversy. There is a broader issue here that impacts universities and businesses on how race should be confirmed when used professionally or academically or financially. There is an ongoing debate over self-identification of race and whether such questions are simply cultural rather than genetic.
For Warren, the desire to focus on her race announced this weekend may be overshadowed by the other race issue.
Here is the column:
For Senator Elizabeth Warren, the promise of Ancestry.com to use DNA to “celebrate how we all came to be” must have had a distinctly loathsome meaning this week. On the day of her highly anticipated announcement as a Democratic candidate for president, Warren is facing new questions in her long standing controversy over claims of Native American ancestry.
New allegations concern the discovery of a Texas legal bar registration form from 1986, on which Warren listed herself as “American Indian.” This claim of race, in her own handwriting, showed an unsolicited invocation by Warren that she is a person of color. However, her ancestry story has highlighted an even larger controversy over what actually constitutes minority status and how such claims of race can or should be confirmed.
Politicians and celebrities often seek compelling personal narratives of overcoming adversities or challenges. Warren has been dogged by other past claims. She once declared herself the first “nursing mother” to take the New Jersey bar exam, which seems not only unprovable but unlikely, since the first female lawyer in the state received a license back in 1895.
I have long had mixed feelings about the ancestry story told by Warren. Suggestions that Warren used her claimed status to secure academic positions is unproven. Her claim that she is a minority was not the reason for her considerable success as an academic. Warren has not only won teaching awards as a law professor but her writings on bankruptcy and financial markets made her a sharp intellectual with global reach. That does not mean such claims do not raise ethical or professional issues.
The Coalition of Bar Associations of Color passed a resolution several years ago calling on law schools to treat the practice of “box checking” minority status as academic “ethnic fraud.” Warren listed herself as a minority on the Association of American Law Schools directory and had her ethnicity changed from white to Native American at the University of Pennsylvania. She was listed as a minority at Harvard, which publicly highlighted her as a “Native American” law professor. The Fordham Law Review identified her as the “first woman of color” at Harvard, and she identified herself as “Cherokee” in a cookbook called “Pow Wow Chow.”
Warren rekindled the controversy over her minority status after making public a DNA test that showed a possible fraction of Native American heritage. Stanford University Professor Carlos Bustamante found that Warren may be 0.09 percent to 1.5 percent Native American. That is quite common and would place any of her possible ancestors between six to 10 generations back. If her great-great-great-grandmother were full Native American, Warren would be 1/32 Native American, but it could date back further to 10 generations, thus making her only 1/1,024 Native American.
The response from Native American groups who denounced Warren for using DNA to show ancestry was interesting. Cherokee Nation Secretary of State Chuck Hoskin insisted that “using a DNA test to lay claim to any connection to the Cherokee Nation or any tribal nation, even vaguely, is inappropriate and wrong. Senator Warren is undermining tribal interests with her continued claims of tribal heritage.” Warren privately apologized to the tribe for using a DNA test to establish status as a Native American.
The suggestion here is that actual DNA is not the measure of ancestry for Native Americans. Hoskin said that the tribe uses DNA to resolve issues of “paternity to an individual” but that “it is not evidence for tribal affiliation.” Notably, Cherokee Nation Principal Chief Bill John Baker is 1/32 Cherokee by blood. Yet, such ancestry is key to claiming not just minority status but also eligibility to share in revenues and benefits from tribal accounts and enterprises. The standards differ from tribe to tribe. Michael Woestehoff of the National Indian Gaming Association has explained that membership in the Navajo Nation requires that a person have 1/4 or more Navajo blood.
The same controversy rages on at universities, which do little to confirm minority status, making such “box checking” on college applications a self identification process. The Census Bureau approach is based solely on self identification. Since 2000, it has allowed people to check multiple boxes for races and ethnicities. Brown University attracted attention for proposing a pure self identification system for “people of color.” A host of programs can hinge on minority status, from government contracts to academic admissions to employment opportunities to financial benefits. Yet, the basis for claiming minority status remains fluid and uncertain.
When George Zimmerman killed Trayvon Martin, the shooting was portrayed as a white man who killed an African American youth, even though Zimmerman is half Hispanic. Jefferson Fish, author of “Myth of Race,” suggested that Zimmerman could be defined as black because he is 1/32 black from family on the side of his mother. Nonetheless, Fish insisted that “Zimmerman’s race is a matter of cultural, not biological information. So different American subcultures classify him differently.”
That, however, does not answer how race should be legally confirmed when substantial financial, academic, and professional benefits are at stake. It seems clear to most of us that Warren should not have claimed minority status, but there is little agreement on why. The criticism of her use of a DNA test to establish her ancestry begs the question of how to objectively answer such questions. Can anyone be “culturally” part of a race or ethnicity, or is that the ultimate form of cultural appropriation?
On the one side, there is the repugnance of accepting the notion of the “one drop rule” in some states that any African blood makes someone black. On the other side, there is the understandable resistance to those people like Warren claiming to be a person of color due to having as little as 0.09 percent DNA from an ancestor who has Native American blood.
It is far from clear that her claim of being a person of color is the story of “how she came to be” a leading academic. However, it is clear how this came to be the primary subject for Warren in her bid for the presidency. Voters will decide the extent to which they view the earlier claims to be disqualifying. Yet, that is just one job dispute. We still have to decide how to deal with such claims for thousands of other applications or positions.
That may prove to be what is most discomforting for many. This question has been carefully avoided for years at universities and other institutions. Schools want to boost minority enrollment and agencies want to benefit marginalized groups. What they are not eager to do is face the difficult question on how such claims should be confirmed. While hardly her intention, Warren may have now forced that long delayed discussion.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.