What’s up, you ask, with the “Native American” uproar in the Elizabeth Warren-Scott Brown race for U.S. senator from Massachusetts? The politics part is easily understood; the Indian part is a heavier lift, involving legalities of Native nations and tribal citizenship. You don’t have to be a lawyer—only a reader—to understand the issues.
The Brown camp says Warren said she was Native American to get a job teaching at Harvard Law School in the early 1990s, when the university needed to defend its diversity record. Warren says she didn’t know Harvard listed her that way, but she listed herself as Native American in 1986-1995 legal directories, “because I thought I might be invited to meetings where I might meet more people who had grown up like I had grown up.”
Born and raised in Oklahoma City, Warren cites her grandfather’s “high cheekbones” and a “family that has talked about…tribes, since I’ve been a little girl.” She claims Cherokee and Delaware; a genealogist in Boston says she’s 1/32 Cherokee. A tribal citizen must have at least one tribal citizen ancestor. Her ancestors are not on the Cherokee Nation citizenship rolls, which included the Delaware Tribe throughout Warren’s life, until 2009.
Of those who falsely claim to be tribal citizens, most claim Cherokee and varying percentages of Indian blood. Blood quantum was an imposed anthropological/federal construct, until the U.S. Supreme Court ruled in the Martinez case in 1978 (after Warren became a lawyer) that only the Indian tribe could determine tribal citizenry. Cherokee Nation did not adopt the federal blood quantum standard.
Warren’s defenders and detractors have blamed, smeared and minimized Cherokees, Cherokee Nation and Native Americans generally, with sophomoric language usually heard only at sports events featuring “Indian” stereotypes. Those who point out that she is the same amount of Cherokee blood as the Cherokee Nation chief are off point and beside the point. Why? Let’s review. Tribal citizenry is political, not racial, and Cherokee Nation uses a family (descendant) standard, not a blood quantum requirement.
When people legitimately claim particular Native nations, they are saying they are tribal citizens of one and eligible for citizenship and/or culturally tied to another. When people claim particular tribes and aren’t tribal citizens, they are promoting a false impression of tribal citizenship (and tribal experience and sanctioning), even if they never use the word citizen. People are Native American because Native nations they say they are; not because of the magic wand of self-declaration.
Native Americans are not the same as, for example, Irish-Americans, Japanese-Americans or Kenyan-Americans. Our nationalities are in our Native nations, which are more like Ireland, Japan or Kenya, with a political nation-to-nation relationship with the U.S. We are equivalent to the relatives of the hyphenated Americans in their old countries—more like the Irish, Japanese or Kenyans—still in our countries, only surrounded by the U.S. on our original lands.
Upon hearing this, non-Native people usually have one or more of these reactions: 1) now I understand, 2) I still don’t get it, 3) that’s not true, or 4) let’s put a stop to that! All too often, Native rights are viewed as unconstitutional super rights, and litigation ensues. The Supreme Court has ruled that Indian rights are not superior rights and do not violate the constitutional rights of non-Indians; they simply are different.
The Supreme Court ruled in the 1974 Mancari case that the Indian-preference hiring among qualified candidates in the Bureau of Indian Affairs was not race-based, but political (federal-tribal and tribe-citizen relationships): “The preference, as applied, is granted to Indians not as a discrete racial group, but rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion.”
In the landmark affirmative action Bakke decision in 1978, the high court rejected use of the Mancari ruling by non-tribal citizens, noting in a footnote: “In Mancari….we found that the preference was not racial at all, but ‘an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive….’”
At one time, being citizens of Native nations meant speaking heritage languages, exercising traditional religions and engaging in cultural ways of making a living, building a home, preparing a meal, wearing clothes. Today, few Native Americans can do all of those things. In fact, a tribal citizen need not do anything beyond simply being a tribal citizen. Native Peoples have citizenship criteria, as do all countries, but there is no citizenship test.
No one wants to test Warren or burden Harvard, but they should explain to law professors who are tribal citizens why her “Native American” claims and hire had nothing to do with them or their opportunities. Questions abound, but few are being asked or answered.
Suzan Shown Harjo (Cheyenne & Hodulgee Muscogee), an award-winning columnist and a poet, writer, curator and policy advocate, who has helped Native Peoples to protect sacred places and recover more than one million acres of land, is president of The Morning Star Institute in Washington, DC.