Redefining race: can genetic testing provide biological proof of Indian ethnicity?

• Author: Beckenhauer, Eric

INTRODUCTION I. DEFINING "INDIAN" IN THE UNITED STATES: ANCESTRY AND BLOOD A. Federal Definitions B. Tribal Definitions 1. Blood quantum requirements 2. Descendancy requirements C. Toward a "Functional" Definition of Indian Ethnicity II. CAN GENETIC TESTING IMPROVE ETHNIC IDENTIFICATION? A. Prevalence of Variants Within Human Subpopulations B. Private Polymorphisms 1. The Y chromosome 2. Mitochondrial DNA C. Ethnic-Affiliation Estimation with Population-Specific DNA Markers D. Limitations of DNA Analysis 1. Is presence of a private polymorphism proof of Indian ancestry? 2. Is absence of a private polymorphism disproof of Indian ancestry? 3. Can presence of a polymorphism indicate degree of Indian ancestry? E. Assessing the Utility of DNA Analysis III. ATTEMPTS TO GENETICALLY DEFINE INDIANS--AND NATIVE AMERICAN REACTION A. Vermont House Bill 809 B. Native American Objections to Genetic Definitions of Ethnicity 1. "Indian" is a culture--not a genotype 2. Genetic definitions of "Indian" will usurp tribal sovereignty 3. Condoning genetic testing in this context legitimizes scientific inquiry, and its consequences, in other contexts CONCLUSION INTRODUCTION

Kathy Lewis is destitute. A Chukchansi Indian from the foothills of Fresno, she lives in a two-room trailer with her daughter, mother, and brother. Her grandfather was born and raised on the nearby Table Mountain Rancheria, where she spent most of her childhood living in a shack. Like many other tribal members, she eventually left the economically stale rancheria to seek employment in a nearby town. But courtesy of the Indian Gaming Regulatory Act, the rancheria now boasts a full-scale casino with annual revenues topping $100 million. Hoping to share this new wealth with her brethren, she reapplies for membership in her former tribe. The tribe--now flush with gaming money--rejects her application, and tightens membership criteria for future applicants. Kathy Lewis is no longer welcome in a tribe where her grandfather was once Chief. (1)

The Gros Ventre Indians call Robert Upham a mixed blood. Part Assiniboine, Nakota, Kootenai, and Salish Indian, he was raised on the Montana reservation of the Gros Ventre Indians, where four generations of his mother's family are buried. Though entirely Indian by heritage, his tribal membership is revoked because his blood lines have become too thin to merit acceptance by any one tribe. Equally devastating, Robert Upham is then denied the health and welfare benefits that accompany tribal membership. (2)

The Western Mohegans, a band of about 330 Indians living on ancestral lands along the border of New York and Vermont, petition the United States government for status as a federally recognized tribe--a coveted designation granted to few, since it is accompanied by a panoply of federal benefits. Lacking adequate genealogical documentation to prove their ancestry to the government, they lobby Vermont legislators to endorse the reliability of DNA testing as a means of establishing ethnic identity. (3) In the Vermont Assembly, a sympathetic representative sponsors a bill authorizing the state health commissioner to develop standards by which DNA testing can be used to "conclusively" identify individuals of Native American ancestry. (4)

And on the expansive World Wide Web, GeneTree DNA Testing Center offers "Native American Verification Testing" from the comfort and convenience of home. For a mere $245, GeneTree will scan a cheek swab for DNA sequences purportedly unique to Native Americans, claiming that "DNA testing can definitively determine questions" regarding Native American ancestry. (5) Other genetic testing laboratories quickly follow suit. (6)

Can such genetic testing help Kathy Lewis, Robert Upham, and the Western Mohegans demonstrate they are Indian--or does it promise more than it delivers? And who decides who counts as Indian in the United States, anyway? The answers depend on who you ask, and why you are asking.

If you ask the federal government, its answer will depend on whether the classification is being made for census purposes, for distribution of federal health and welfare benefits, or for federal recognition of status as a political entity. If you ask Indian tribal councils--the typical governing bodies of Indian tribes--their answers will doubtless vary, highlighting the autonomy that tribes enjoy with respect to determining membership requirements. But if you ask an Indian what makes him an Indian, his answer is likely to be even less predictable: While some Indians identify by relying on governmental and tribal criteria, which normally require either a minimum percentage of Indian blood or proven descendancy from an identified ancestor, others prefer more socially constructed definitions that emphasize the strength of cultural affiliation and reject the assumption that race can be biologically determined.

Each of these definitions, however, is flawed. Although many tribes strive for federal recognition--and the desperately needed welfare benefits that accompany it--the vast majority do so unsuccessfully. Tribes often use exclusive membership criteria--usually blood quantum or descendancy requirements--to limit enrollment and to conserve scarce resources; in doing so, they threaten tribal survival and rely on questionable biological definitions of race. At the same time, more permissive definitions of ethnicity prevent effective allocation of federal and tribal funding, and fail to adequately protect tribal character.

This Note begins, in Part I, by surveying the myriad ways that Indians are classified by federal and tribal governments, and the problems such classifications create. It next assesses, in Part II, several methods of scientific analysis that allow us to define the characteristics of ethnic groups in genetic terms, and notes the limitations of each. It then explains, in Part III, how a legislative attempt to enable Indians to "prove" their ethnic identities through genetic testing, besides demonstrating a failure to understand these limitations, provoked outrage among Indian communities. It ends by urging caution to scientists and policymakers alike: Given the limited utility of DNA analysis as a positive ethnic identifier, and the fervent opposition to its use among the very populations it purports to assist, further attempts to genetically define Indians should be assessed with a skeptical eye.

1. DEFINING "INDIAN" 1N THE UNITED STATES: ANCESTRY AND BLOOD

   A basic understanding of the nature of the federal-tribal political relationship, the requirements and benefits of federal recognition, and the various methods tribal governments use to grant citizenship is essential to grasping the problems these definitions pose--and to assessing whether those problems can be remedied by genetic testing. After surveying the federal and tribal requirements for classification as "Indian," (7) and the problems inherent in each, this Part lays the groundwork for the question: Might a genetic classification be better?

   1. Federal Definitions

      Federal Indian law is complex and anomalous at best, and at worst, hopelessly confused and plagued by inconsistency. (8) Though Indian tribes are vested with most of the inherent powers of a sovereign government, including the right to determine citizenship criteria, (9) they are subject to the plenary oversight of Congress, which is exercised broadly. (10) While the U.S. government maintains that its relationships with federally recognized tribes are strictly political in nature, it simultaneously administers a variety of social welfare programs to some Indians based solely on racial criteria. Indeed, a 1978 congressional survey found that federal legislation contains at least thirty-three different definitions of the term "Indian," a figure that is dwarfed by the various tribal definitions embedded throughout Title 25 of the Code of Federal Regulations. (11)

      Recognition by the U.S. Department of the Interior is "a prerequisite to the protection, services, and benefits of the Federal government available to Indian tribes." (12) As prescribed by the Federal Acknowledgment Act, (13) such recognition is attained only upon satisfaction of each of seven mandatory criteria:

      (a) The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900....

      (b) A predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present.

      (c) The petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present.

      (d) A copy of the group's present governing document including its membership criteria. In the absence of a written document, the petitioner must provide a statement describing in full its membership criteria and current governing procedures.

      (e) The petitioner's membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity.

      (f) The membership of the petitioning group is composed principally of persons who are not members of any acknowledged North American Indian tribe ....

      (g) Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship. (14)

      The statute further provides that evidence used to identify a tribe as an "American Indian entity" and to establish descendancy from a "historical Indian tribe" may include enrollment lists, descendancy records, affidavits, and other information "identifying present members or ancestors of present members as being descendants of a historical tribe." (15) Thus, the text of the Federal Acknowledgment Act implicitly invites the use of genetic studies as proof of Indian ancestry.

      Acknowledgment as a federally recognized tribe serves two main...