It has been interesting to follow the media frenzy with regard to Elizabeth Warren and her use of “self-suspected” Indian ancestry to advance her career in academia. The true relevance of the discussion is whether she was privileged to claim Indian ancestry in acquiring an employment or education benefit and the failure of the institutions involved in not requiring her to prove her claim. This failure exposes an issue that many institutions of higher learning avoid by claiming that to inquire into proof of the claim somehow violates equal education and employment opportunity as set forth in the Civil Rights Act of 1964. It is ironic (if not malpractice) that the very statute that contains an exemption for “Indian preference” is being used to discriminate against people who can prove they are Indian in favor of people who merely claim being Indian. Leaving the 1964 Civil Rights Act exemption aside, there is also an independent basis in federal Indian law for the institution to require proof of the claim.
University Legal Counsel has ignored the statutory exemption and have ignored the body of federal Indian law which defines “Indian” status of being a political/legal status rather than race. These misrepresentations are used as an excuse to forbid inquiry into the factual/legal basis of an applicant’s claim. Title IV of the Civil Rights Act sets forth an exemption for Indian Tribes, and even private employers who are based “on or near” Indian country. The exemption allows employers to apply Indian preference and even “tribal” preference. (See: Equal Employment Opportunity Commission (EEOC) Policy Statement on Indian Preference under Section 703(i) of Title Vii of the Civil Rights Act of 1964, by EEOC Chairman Clarence Thomas, May 16, 1988.)
University hiring authorities have a fiduciary duty to their institutions and student beneficiaries to make a proper legal and factual inquiry when a “benefit”, such as employment or scholarship award is involved. The hiring institution can and should require proof of tribal membership from a governmental entity having such recognition authority. Allowing self-identification without proof renders the legal/political status of those that can prove it, meaningless thus nullifying the benefits Congress sought to insure by the Civil Rights Act exemption. This nullification benefits those willing to fraudulently make the claim, as did Elizabeth Warren.
To claim “Indian” without a legal/factual basis amounts to fraud. There are many Indian Law and Indian Studies Professors who claim being “Indian” and such claims are just taken at face value. Tribal members of recognized tribes have to compete against these false claimants. Unfortunately for us, and fortunately for them, they beat out tribal member Indians most of the time because the educational and employment experiences they have (especially in the non-Indian world of academia) outweigh the tribal member’s “Indian country” education and experience. The disparities between non-Indian and Indian education (usually in a reservation setting) and employment opportunities is not anecdotal, it is born out in statistics. Laws have been passed by Congress, and even some states, to attempt to rectify or take into consideration the disparities. States can and do give legal recognition to Indian Tribes and their members as a matter of political/legal status, especially if the federal government does so (Rice v. Cayetano not withstanding). University systems have chosen to interpret the law on the basis of race and ethnicity rather than on the basis of political/legal status. Universities just don’t get it and would rather just get around it by hiring the person claiming to be Indian rather than the person who has a factual and legal basis for proving that they are a real Indian.
Harold Monteau is a Chippewa-Cree Attorney and Indian Business Consultant who resides in Albuquerque, New Mexico. He is the former Chairman of the National Indian Gaming Commission and an advocate for Indian Small Business owners. He can be contacted at firstname.lastname@example.org.