Map of Cherokee and Creek Territory in Alabama and Georgia, 1823 (Wikimedia Commons)

The Complexity of Claiming Native American Identity

What do Blake Lively, Johnny Depp, Justin Bieber, and Bill Clinton have in common? They all have claimed Native American ancestry. Of the four, Bieber is the only one who didn’t specifically claim Cherokee heritage, which is such a common tribal reference for self-identification that Wikipedia has an entry for it.

Elizabeth Warren’s ongoing public engagement with her alleged Cherokee ancestry is just the most visible current case. The issue has haunted her since her first Senate campaign, when it came to light that she claimed ancestry while she was a faculty member at Harvard Law School. On October 15th, Warren tried putting the question to rest once and for all when she performed a DNA test and released a video explaining that she “absolutely [has] a Native American ancestor in [her] pedigree.” Warren claimed vindication, Trump tweeted mockery, the Cherokee Nation criticized Warren’s decision, and the general public seemed wholly confused about what the DNA test had or had not proven.

Each November is recognized as Native American Heritage Month. Yet defining what it means to be “Native American” or “Cherokee” in the United States can be incredibly vexing. Here, I hope to address the historical complexity of Native American identity categories to highlight how problematic claims to “Native ancestry” can be.

In the United States, people have a way of thinking about ancestry and culture that complicates all conversations about heritage, Native American or otherwise. We tend to think that genetic ancestry creates a simultaneous claim to a cultural identity, and the advent of mainstream genetic tests such as those from strengthen that tacit connection.  Even though Senator Warren clearly rejected the notion that the DNA test proved Cherokee ancestry (it can’t), most viewers of that video may not know how to make that distinction.

Any claims to Native identities, whether cultural or genetic, are further complicated by the fact that Native identities are often legal identities. Being an enrolled member of a federally recognized tribe means that U.S. law literally applies differently to you. This is part of what makes Senator Warren’s claims so divisive. The current confusion about Native American identity reflects a long history of federal and state governments grappling with tribal Nations’ legal status.

A Tumultuous History

Because Native American tribal nations precede both the founding of the United States and the original colonies, their legal status differs from that of any other group or ethnicity in the country. In colonial times, tribal nations were seen as specific sovereign nations among many others. Legally, they were treated similarly to European nations: colonial officials cooperated, warred, and made treaties with the various tribes. Even today, tribes are still referred to as “nations.”

But the American Revolution and the founding of an independent republic complicated the recognition of independent nations within U.S. territory. To this day, a sovereign state like the U.S. does not tolerate the idea of fully sovereign nations within its borders. In 1831, a Supreme Court decision, Cherokee Nation v. Georgia, clarified that the Cherokee Nation–and by extension all Native American tribal lands–were indeed not sovereign, but “domestic dependent nations.” Since they were not foreign nations, the reasoning went, tribal nations were from then on considered wards of the U.S. government.

Even though the Supreme Court ruled the decision unconstitutional a year later in Worcester v. Georgia, President Andrew Jackson refused to uphold the revised ruling and continued his removal policy. Under this policy, tribes were pushed West in order to make way for white settlers. Most infamously, the administration forced the Cherokee Nation to march along the Trail of Tears from Georgia to their current reservations in Oklahoma.  Relying on the definition of tribes as domestic dependent nations, the Bureau of Indian Affairs lost its independent status in 1832, treaty rights were abrogated in 1871, and reservations system was extended in the following decades.

Defining tribal nations as “domestic dependent” and “wards” had consequences that echoed far into the 20th century and continue today. In 1924, the Indian Citizenship Act unilaterally forced American citizenship on all Native Americans, further undermining tribes’ claims to nationhood. After over a century of eroding tribes’ autonomy and fragmenting reservation communities, in 1934 Congress passed the Indian Reorganization Act to allow more tribal self-determination.

The trend toward greater Native American self-governance continued in the 1960s and 1970s, for example with the Indian Civil Rights Act (1968) and the Indian Self-Determination and Education Assistance Act (1975). Today, despite some progress since the civil rights era, tribal nations are still considered only partially sovereign, reservations remain the foundation of Native political organization, and treaty rights persist as a contentious point in Native-U.S. relations.

Thinking about Native American Identity as Legal Status

However, tribal nations do still have the right to stipulate their own membership, and this membership is a legal status. Within federal regulations, tribes can determine how they want to decide who belongs as a member. How to do this remains a heated debate within Indian country, considering that the legal definition of “membership” itself is perceived by many to be a colonizing practice forced onto tribal nations by the U.S. government. Most tribes today decide their members through a mix of lineage or blood quantum and residency within tribal territories. The Cherokee Nation doesn’t care about either, but requires a direct ancestor on the Dawes Rolls, a list of Cherokee members between 1898 and 1914.

Elizabeth Warren’s claim does not entitle her to any tribal enrollment because “DNA test[s are] useless to determine tribal citizenship,” as Cherokee Nation secretary of state Chuck Hoskin Jr. put it in a reaction to Warren’s video. Furthermore, “current DNA tests do not even distinguish whether a person’s ancestors were indigenous to North or South America.” This disregard for distinctions between the generic category “Native American” and legal tribal identities “makes a mockery out of DNA tests and its legitimate uses while also dishonoring legitimate tribal governments and their citizens,” Hoskin argues.

This then gets at the outrage over Warren’s claim in Indian country: it sounds like the Senator is at best misunderstanding or mocking Native concepts of identity, and at worst reinforcing white supremacy. Cherokee speaker and author Gyasi Ross called her actions “another example of white tone-deafness to Native concerns and Native voices” and accused Warren of using Native Americans as a “campaign prop.” Dr. Kim Tallbear, an enrolled citizen of the Sisseton-Wahpeton Oyate and Native Studies professor at the University of Alberta, makes clear how problematic Warren’s claims are in the context of discourses on Native identities: “It’s contributing to a broader conversation [] in which it’s assumed that everybody has the right to weigh in equally on what constitutes a Native American, or what constitutes a Cherokee.” But—as demonstrated above—since tribal identities convey legal status, that’s just not the case.  Instead, Tallbear argues, using DNA tests to claim Native identities isn’t only offensive, it perpetuates white supremacy. Warren’s video, she tweeted, left her nauseated and feeling ill.

Regardless of her DNA, for many people Warren’s claim sounds like another white person appropriating a Native identity for their own benefit–a type of cultural appropriation that has been en vogue for hundreds of years. From her privileged position, it is possible for Senator Warren to brush over the layers and layers of history that make American Indian identities so complicated for Americans to understand today. The complexity of the history and emotions involved in this topic explain why she, like so many other non-Native Americans, are deeply baffled at the fact that others find their claims problematic at all.

Janna Soeder is a PhD Candidate in Rhetoric & Political Culture at the University of Maryland, College Park.