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Elizabeth Warren: Of Blood and Money

Harold Monteau
6/21/12

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 hamlaw@live.com.

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fslafountaine's picture
I disagree with the statement from news article: "To claim “Indian” without a legal/factual basis amounts to fraud." I meet of lots of people who claims Native American ancestry, especially people of British or French ancestry who can trace their ancestry to colonial times. They have no way of proving their claims, but they do sympathize with the plight of Native Americans.
fslafountaine
m8lsem's picture
Yes, but. Legal enrollment in a federally recognized tribe, as the one and only definition of 'Indian' is certainly simple, but it excludes a lot of very Indian people, including full-bloods and fractional bloods. Consider a man I know who is 100% Native American, but enrolled in no tribe because the one tribe in which he might enroll by blood percentage, he cannot enroll in because that tribe consider matrilineal heritage, and his is patrilineal. Further, the Cherokees do not use blood quantum. Now never having looked at the records in question, nor knowing Elizabeth Warren or her parents, I cannot speak to the authenticity of her claim. I do object, however, to have identity determined not by culture, nor by descent, but solely by legal enrollment. I am who I am, no matter what anyone tells me I am.
m8lsem
waterlady's picture
Why when a white person claims to be American Indian no one ask's for proof???? Yet when I made a Complaint in Utah about my son being harressed because he was American Indian the State Made me Prove That From the words of a member of Utah State Offices " you know you have to prove who you say you are" that is being American Indian. Yes I did prove with more than ample proof. But this is plain hypocrisy that American Indian had to prove oneself and a White person does not, Why??????? So there must be equality in this but I never see it. Of course the state of utah did nothing me having no money. but hey it is the true meaning of inequality of the life of minorities that is the American Indian Equality. How sad.
waterlady
thechief's picture
I'm six tribes and am lucky enough to be from a tribe that adds up all your blood from federally recognized tribes to count towards your blood quantum. Just as long as one of your parents is a community member. When I went to college I didn't list all six I just listed the one I'm enrolled in. My memory is kind of bad but I think they asked for the specific tribe you're enrolled in. I always thought it was so the financial aid office could contact your tribes education office. I have a friend that is a recruiter and he loves recruiting natives because the tribes usually have money to pay tuition. I could imagine the For Profit academic organizations are making a great deal off from tribes.
thechief
lancechendrickson's picture
Harold, I'm just not convinced that tying Indian preference to formal Tribal enrollment is the right answer vis-a-vis university hiring, for several reasons. First, I think the court reached the right result in U.S. v. Keys, for example -- essentially, there's more to the "Indian status" question than formal enrollment in a federally-recognized Tribe. I, for one, would have a hard time telling members of the Grand River Band here in Michigan (where the Tribe is state-recognized) that they're, uh, not Indian, just because the Department of the Interior hasn't yet shifted its bureaucratic backside and acted on the Band's petition. Going back a few years, it'd have been an odd result for one Lac Vieux Desert Band member graduating high school when I did (in 1987) to have been ineligible for scholarship programs (for lack of "being Indian") whereas, say, his brother graduating the next year would've been. Beyond that, what do you do if you're a university, administering your hiring policies under the "Monteau Rule," when, say, Chukchansi calls the day after you interview Indian Candidate X, and tells you that Candidate X's entire family has just been disenrolled? What do you put in that rejection letter? "Sorry, Candidate X, but since your family's side lost the last Tribal election, I guess you're not Indian anymore -- if you're eligible for enrollment over at Table Mountain, let us know when you get signed up." That's no policy for a university to have. For that matter, the last time I checked, Cherokee doesn't have a minimum blood quantum -- if Liz Warren were to gain enrollment status tomorrow, does that mean that she's not a "fraud" anymore, or does it mean that she didn't commit any "fraud" in the first place? Oh, and for a real curveball, what if Liz' Cherokee ancestors were Freedmen? My point, I suppose, is that I disagree with your assertion that "... Universities just don't get it and would rather just... hir[e] the person claiming to be Indian..." I suspect they do "get it," and that they've opted to include more people with Indian heritage in their preference-based hiring programs/policies, rather than keeping out as many as possible. In terms of serving the real-life goals of those programs/policies, it's hard to argue with that rationale.
lancechendrickson
margaretlaveson's picture
She is a fraud. She does not behave like a native. Anyone with an ounce of native blood would meet in an instant with the Cherokee women. Just out of cultural respect, if not, pure curiosity to learn more about the heritage she claims she comes from! It is dispicable, and insulting.
margaretlaveson
swrussel's picture
Fraud as a crime or fraud as a tort both require intent. And both require a benefit, something alleged but not named. I've heard she got a job on account of being Indian, something I doubt given Harvard's record, and the chair of the committee denied it. I've heard she got a loan that was specifically for minorities, but I don't know what that was about. She's certainly a minority in one sense: a woman tenured in securities regs. I would like to understand what benefit she got from repeating her family story so I could know whether to be angry rather than just amused. I'm perfectly willing to accept this information if somebody would just offer it.
swrussel