Is Elizabeth Warren Native American?

Elizabeth Warren is not a citizen of the Cherokee Nation.

Elizabeth Warren is not enrolled in the Eastern Band of Cherokee Indians.

And Elizabeth Warren is not one of the United Keetoowah Band of Cherokee.

Nor could she become one, even if she wanted to.

Despite a nearly three-week flap over her claim of "being Native American," the progressive consumer advocate has been unable to point to evidence of Native heritage except for a unsubstantiated third-hand report that she might be 1/32 Cherokee. Even if it could be proven, it wouldn't qualify her to be a member of a tribe: Contrary to assertions in outlets ranging from The New York Times to Mother Jones that having 1/32 Cherokee ancestry is "sufficient for tribal citizenship," "Indian enough" for "the Cherokee Nation," and "not a deal-breaker," Warren would not be eligible to become a member of any of the three federally recognized Cherokee tribes based on the evidence so far surfaced by independent genealogists about her ancestry.

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"These are my family stories," Warren has said. "This is what my brothers and I were told by my mom and my dad, my mammaw and my pappaw." But so far she and her campaign have been unable to establish that her family lore about being part Native American is anything more than one of the most widely shared family myths known to American genealogical researchers; such myths are especially prevalent in Warren's home state of Oklahoma, which has the highest percentage of Native Americans in the nation and where the Cherokee are the largest minority group.

"There's a running joke in Indian country: If you meet somebody who you wouldn't necessarily think they're Native, but they say they're Native, chances are they'll tell you they're Cherokee," said Lenzy Krehbiel-Burton, a spokesperson for the Cherokee Nation in Oklahoma, which counts more than 300,000 citizens and is the largest Cherokee tribe.

Warren, now running as a Democrat to unseat Massachusetts Senator Scott Brown, has been embroiled in the controversy since reports surfaced that she described herself as a minority in a law school directory and was touted as a Native American faculty member while tenured at Harvard Law School in the mid-1990s. Warren has described herself as having Cherokee and Delaware Indian ancestry. Brown's campaign has seized on the story to raise questions about whether Warren misled Harvard or sought to use distant Native American ties for professional gain, and hammered on the propriety of a blonde, blue-eyed white woman describing herself as a minority. But the biggest question raised during the fracas is the one no one has been able to answer: Does she have Native American ancestry at all?

Warren has doubled down on her description of her background and dismissed suggestions she was ever an affirmative-action hire as preposterous. "I'm proud of my Native American heritage," she said Monday in an appearance on CNN. "I'm proud of my family." 

Her inability to name any specific Native American ancestor has kept the story alive, though, as pundits left and right have argued the case. Supporters touted her as part Cherokee after genealogist Christopher Child of the New England Historic Genealogical Society said he had found a marriage certificate that described her great-great-great-grandmother, who was born in the late 18th century, as a Cherokee. But that story fell apart once people looked at it more closely. The society, it turned out, was referencing a quote by an amateur genealogist in the March 2006 Buracker & Boraker Family History Research Newsletters about an application for a marriage certificate:

Lynda Smith said, "When Neoma's son William J. Crawford married his second wife, Mary LONG, in Oklahoma, he stated on his marriage application that his parents were Johnathan Houston Crawford and O. C. Sarah Smith and that his mother was Cherokee Indian."

No one has surfaced that document, and there's some reason to believe it may not exist. Lynda Smith later wrote that she does not believe she ever saw it herself, according to a report by amateur genealogist Michael Patrick Leahy, who has helped lead a full-court press from the right on the Warren ancestry story, along with other conservative outlets such as the Boston Herald and the blog Legal Insurrection. (Smith declined a request for comment.)

The New England Historic Genealogical Society backtracked on Warren's ancestry in a statement on Tuesday, saying the group has "no proof that Elizabeth Warren's great-great-great-grandmother O.C. Sarah Smith either is or is not of Cherokee descent" and that the society "has not expressed a position on whether Mrs. Warren has Native American ancestry, nor do we possess any primary sources to prove that she is."

The Boston Globe, which had taken the society's earlier statements as confirmation of Warren's Cherokee heritage ("Document ties Warren kin to Cherokees"), issued a sniffy correction on Tuesday about the "1894 document that was purported to list Elizabeth Warren's great-great-great grandmother as a Cherokee," noting, "Neither the society nor the Globe has seen the primary document, whose existence has not been proven."

But even were such a document to be found, Warren would not be eligible to enroll as a Cherokee based on it alone. To begin with, the Cherokee Nation doesn't accept marriage licenses as documentation of Cherokee ancestry -- let alone a document described as an application for a marriage license by a descendent of the individual claimed as Cherokee. 

"Marriage licenses don't cut it," said Krehbiel-Burton of the Cherokee Nation.

Further, to enroll as a member of the Cherokee Nation, an individual must have had a direct ancestor listed among the more than 101,000 people enrolled on the "Final Rolls of the Citizens and Freedmen of the Five Civilized Tribes in Indian Territory" between 1898 and 1914, now known as the Dawes Rolls. The Cherokee Nation is very strict about this, even keeping descendants of siblings of men and women on the rolls out of the tribe, as well as descendents of Cherokees who were living out of the area at the time the lists were drawn up in what was then Northeastern Oklahoma.

"If she does not have an ancestor listed on the Dawes Rolls, she cannot be considered Cherokee through this tribe," explained Lydia Neal, a processor with the registrar's office of the Cherokee Nation.

O.C. Sarah Smith died long before the rolls were drawn up, too far in the past to make Warren eligible for membership in the tribe (assuming that Smith was Cherokee). 

No direct-line relatives of Warren are listed on the Dawes Rolls, according to Megan Smolenyak Smolenyak (the doubled name is not a typo), the independent genealogist who identified Michelle Obama's slave ancestors in 2009 in a project with The New York Times.

"The Dawes Rolls don't lend support to [Warren's] claim," she told The Atlantic.

The Eastern Band of the Cherokee, for their part, have since 1963 required individuals to be at least 1/16 Cherokee to enroll -- and also to have "a direct lineal ancestor" on "the 1924 Baker Roll of the Eastern Band of Cherokee Indians." Even were Smith discovered to be Cherokee, Warren would not be eligible to join the tribe, as someone who also lacks a direct-line ancestor on the 1924 rolls, according to Smolenyak's research.

"If she has Native American ancestry, it's likely quite a ways back and not reflected in more contemporary resources," Smolenyak said.

"In her immediate pedigree there is no one who is listing themselves as not white," the New England Historic and Genealogical Society's Child told the Boston Herald after looking at her maternal line in late April.

And while many have pointed out that the current principal chief of the Cherokee Nation, Bill John Baker, is only 1/32 Cherokee, his background is not like Warren's; he was "born and raised in Cherokee County" and is a direct descendant of "Nancy Walker Osage, an early Tahlequah business owner and Cherokee Healer" listed on the Dawes Rolls.

The difference between him and Warren is he has a direct-line ancestor clearly documented as a Cherokee whom he can name. So far, Warren has only been able to point to family lore.

Asked if Warren were claiming that O.C. Sarah Smith or any other ancestor was Cherokee or if the campaign or Warren had reached out to a genealogist to research Warren's background, Warren spokesperson Alethea Harney said she'd have to look into it, then declined to answer the questions in a follow-up e-mail exchange.

None of this is to say that a Cherokee citizen couldn't look like Warren. Though it confounds many people's expectations, the Cherokee Nation considers being Cherokee as much an ethnicity as anything racial, and given the tribe's centuries-long history of intermarriage, many Cherokee citizens today do not look stereotypically Native American. As well, "there are a lot of folks who are legitimately Cherokee who are not eligible for citizenship," said Krehbiel-Burton, because, for example, their ancestors lived in distant states or territories when the rolls were drawn up, or because they are direct descendants of people left off the rolls for other reasons.

Fractional Native American ancestry is quite hard to prove to the standards of the U.S. government, which in many ways acts as the ultimate "birther" in this regard. Percentage of ancestry or "blood quantum" -- the creepy and antique-sounding term used by the Bureau of Indian Affairs, which certifies it for two of the three Cherokee tribes -- is recognized by the bureau based on original documents (such as birth certificates, census records, and death certificates) through something called a Certificate of Degree of Indian Blood, or CDIB.

Warren would need to be certified by the bureau as at least 1/16 Eastern Cherokee on a CDIB to be eligible to join the Eastern Cherokee. The United Keetoowah Band of Cherokee has an even stricter enrollment cutoff: "a minimum blood quantum requirement of one quarter (1/4) degree Keetoowah Cherokee blood" documented via a CDIB plus a direct descent from someone on the Dawes Rolls. Tribal citizenship standards are set by the tribes themselves, and not the U.S. government.

Warren has never attempted to join a tribe and had no documentation of her Native ancestry claim before the controversy broke, Harney told William A. Jacobson, a Cornell Law School professor, in late April. Instead, Warren has cited the sayings of her Aunt Bea, who was given to complaining that Warren's maternal grandfather who "had high cheekbones like all of the Indians do" had not passed them on to her.

To be sure, the absence of readily located evidence of Native ancestry outside the oral tradition does not mean that Warren has no Native American ancestry. Genealogy is a complicated field, where firm answers are hard to come by quickly. Proof of distant Native American ancestry could yet surface, were Warren to hire a genealogist to do a thorough dive into her own background while she works on riding out the political storm.

But a lack of Native ancestry despite the family stories she's heard all her life would also be consistent with one of the most common genealogical myths in the United States.

"Many more Americans believe they have Native ancestry than actually do (we always suspected this, but can now confirm it through genetic testing)," said Smolenyak in an e-mail. "In fact, in terms of widespread ancestral myths, this is one of the top two (the other being those who think their names were changed at Ellis Island). And someone who hails from Oklahoma would be even more prone to accept a tale of Native heritage than most."

She added, "There's also a tendency to accept what our relatives (especially our elders) tell us."

As for Warren, "I can't confirm or refute Cherokee heritage without extensive research," Smolenyak said. "All I can say is that Ms. Warren's scenario is a wildly common one -- minus the public scrutiny, of course."

Should the genealogists be unable to find supporting documents, Warren could also quietly pursue familial DNA testing, which might confirm Native American ancestry, even if records of individual ancestors or their specific tribal affiliations have been lost to the mists of time. Her onetime Harvard University colleague Henry Louis Gates Jr. has promoted such efforts as part of helping African-Americans learn more about their mixed ancestry, hosting a series of shows on PBS featuring famous figures tracking down their forebears using genetics and genealogy. (He has also pointed out that many African-Americans erroneously believe they have Native American ancestors, especially Cherokee ones, making it "the biggest myth in African-American genealogy.") DNA ancestry tests are not dispositive, and even a positive result would not be useful for tribal affiliation or CDIB purposes. But it would silence Warren's critics, and -- more important -- it would help her learn whether what she had spent her life thinking she knew about herself and her family was true.

"Being Native American has been part of my story, I guess since the day I was born," Warren told the Boston Herald in early May. "These are my family stories, I have lived in a family that has talked about Native American and talked about tribes since I was a little girl."

Many prominent figures in American life learn, once the eye of the national press alights on them, that they are not the people who they always thought -- or said -- they were. Former Secretary of State Madeleine Albright, for example, grew up thinking she came from a Catholic Czech family. It was not until she joined the Cabinet that she learned her parents -- not her great-great-great-grandmother, but her own parents -- were Jewish refugees who had converted and misled her about her ancestry after losing their families in the Holocaust. "This was, obviously, a major surprise to me. I have never been told this," she said in 1997, after The Washington Post broke the news. "The only thing I have to go by is what my mother and father told me, how I was brought up," she said.

Florida Sen. Marco Rubio spent years describing himself as the "son of exiles" from Castro's Cuba, but The Post reported, "Documents show that Rubio's parents came to the United States and were admitted for permanent residence more than two and a half years before Castro's forces overthrew the Cuban government and took power." In explaining the discrepancy, Rubio said, "I'm going off the oral history of my family." 

Public scrutiny allowed New Mexico Gov. Susanna Martinez to close off a potentially damaging story line when it was discovered that a Mexican grandfather suspected of having been an undocumented immigrant was in fact a lawfully admitted 1918 entrant who obtained U.S. citizenship in 1942. Questions had been raised about him after news reports revealed that he was marked AL for "alien" on the 1930 census, and people jumped to conclusions that this meant he was an "illegal alien" -- illustrating just how much trouble incomplete genealogical research can cause for political actors.

But, sometimes, genealogy also confirms family stories. Michelle Obama in 2009 learned a great deal more about the slave ancestors she always knew she must have had, and Smolenyak and The New York Times were able to "substantiate what Mrs. Obama has called long-standing family rumors about a white forebear."

Warren's story has become so politicized and such a hot potato in her race to unseat Brown that she'll be in a sticky situation no matter what she finds.

The best argument she has in her defense is that, based on the public evidence so far, she doesn't appear to have used her claim of Native American ancestry to gain access to anything much more significant than a cookbook; in 1984 she contributed five recipes to the Pow Wow Chow cookbook published by the Five Civilized Tribes Museum in Muskogee, signing the items, "Elizabeth Warren -- Cherokee."

Warren, who graduated from the University of Houston in 1970 and got her law degree from Rutgers University in 1976, did not seek to take advantage of affirmative action policies during her education, according documents obtained by the Associated Press and The Boston Globe. On the application to Rutgers Law School, she was asked, "Are you interested in applying for admission under the Program for Minority Group Students?'' "No," she replied.

While a teacher at the University of Texas, she listed herself as "white." But between 1986 and 1995, she listed herself as a minority in the Association of American Law Schools Directory of Faculty; the University of Pennsylvania in a 2005 "minority equity report" also listed her as one of the minority professors who had taught at its law school.

The head of the committee that brought Warren to Harvard Law School said that talk of Native American ties was not a factor in recruiting her to the prestigious institution. Reported the Boston Herald in April in its first story on Warren's ancestry claim: "Harvard Law professor Charles Fried, a former U.S. solicitor general who served under Ronald Reagan, sat on the appointing committee that recommended Warren for hire in 1995. He said he didn't recall her Native American heritage ever coming up during the hiring process.

"'It simply played no role in the appointments process. It was not mentioned, and I didn't mention it to the faculty,' he said."

He repeated himself this week, telling the Herald: "In spite of conclusive evidence to the contrary, the story continues to circulate that Elizabeth Warren enjoyed some kind of affirmative-action leg-up in her hiring as a full professor by the Harvard Law School. The innuendo is false."

"I can state categorically that the subject of her Native American ancestry never once was mentioned," he added.

That view was echoed by Law School Professor Laurence H. Tribe, who voted to tenure Warren and was also involved in recruiting her.

"Elizabeth Warren's heritage had absolutely no role in the decision to recruit her to Harvard Law School," he told the Crimson. "Our decision was entirely based on her extraordinary expertise and legendary teaching ability. This whole dispute is fabricated out of whole cloth and has no connection to reality."

And that's the second arena where an absence of evidence should have some weight. If there's no easily located evidence that Warren has Native American ancestry, there's also no evidence that Warren used her family story to boost herself into a Harvard job.

A huge tell -- beyond the flat denials of two of the men who brought her to the school -- is that Warren's ancestry was not touted in 1995 in The Harvard Crimson as the Law School's first Native American hire, despite the ethnic-studies movement's gathering force on the college's campus at the time and the continued controversy over the lack of diversity at the law school (as highlighted at a protest involving Prof. Derrick Bell and law school student Barack Obama in 1991). The Crimson article on Warren was titled simply, "Woman Tenured at Law School."

"Liz Warren is a spectacular addition to our faculty," Law School Dean Robert Clark told The Crimson. "She is a leading scholar in the fields of bankruptcy and commercial law, and she is one of the rare legal academics to have devoted herself to a large-scale empirical research project of great relevance to legal policymaking."

Compare that to the Crimson editorial that greeted Lani Guinier just three years later, which heralded her as "the first female African-American professor in the 181-year history of HLS." While this article also repeated the claim about Warren's ethnicity -- "Harvard Law School currently has only one tenured minority woman, Gottlieb Professor of Law Elizabeth Warren, who is Native American," the '98 piece said -- that information had so little penetrated the consciousness of legal circles that Guinier was quoted in the very same article saying, "Though I am the first woman of color to join the tenured faculty, I know that I will not be the last, and this is important to me." Dean Clark said he felt that hiring her would "attract other top scholars of diverse backgrounds." He made no similar statement upon Warren's hire.

What Law School spokesman Michael Chmura was doing when he told The Crimson in 1996 and the The Fordham Law Review in 1997 that Warren was Native American is a question for the university, not the Warren campaign. And the university is duly being pressed on that question and others about Warren's time there. (Massachusetts Republican Party Chairman Robert A. Maginn Jr., an alumnus of Harvard Law, has called on the university to do an internal investigation into whether Warren misled the university about her heritage.)

The challenge for Warren will be to withstand an ongoing barrage of attacks on the topic that seek to undermine perceptions about her character and honesty. "That Warren allowed Harvard to hold her up as an example of their commitment to diversity in the hiring of historically disadvantaged communities is an insult to all Americans who have suffered real discrimination and mistreatment, and Warren should apologize for participating in this hypocritical sham," Jim Barnett, the campaign manager for Brown said when the story broke.

Warren's campaign has tried to keep its head down and fight around the edges of the story, which it has called a distraction from the issues that Massachusetts voters care about. Senate candidates have survived far more potentially damaging controversies and gone on to win. But the longer the questions about Warren linger, the harder it will be for voters to feel like they know who she really is.