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

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.

I. 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?

A. 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 purposes. First, it recognizes the tribe as a sovereign nation and establishes a formal political relationship between the tribal council and the federal government. Second, and perhaps more important, acknowledgement entitles enrolled members to an array of federal programs and services, including those created by the Indian Health Care Improvement Act, (16) the Indian Alcohol and Substance Abuse Prevention and Treatment Act, (17) the Indian Education Act, (18) and the Indian Child Welfare Act. (19)

Although the majority of special services the federal government provides to Indians are restricted to those enrolled in federally recognized tribes, the federal government also provides limited services to other Indian groups, such as terminated tribes, state-recognized tribes, and unrecognized tribes. (20) Among the broad plenary powers of Congress is the power to terminate the federal-tribal relationship, a power exercised frequently in the 1950s and '60s, but rarely today. (21) Though such action ends the federal trust relationship with a tribe, and thus extinguishes tribal eligibility for many special services, other treaty-secured rights like hunting and fishing privileges remain protected. (22) In addition, there is a trend toward renewing the eligibility of terminated tribes for some of the more vital federal programs, such as the Indian Child Welfare Act and the Indian Education Act. (23) Likewise, the relatively small number of tribes that are recognized by states, but not by the federal government, are eligible for certain federal health, education, and welfare programs like the Food Stamp Program on Indian Reservations. (24)

At the other end of the spectrum, the members of unrecognized tribes go largely without the myriad programs and services afforded to their brethren in (presently or formerly) recognized tribes--and relief is not forthcoming. Though more than 556 Indian tribes are now federally recognized, (25) more than 200 others remain in a state of "political limbo" absent such recognition. (26) In fact, in the twelve years following the 1978 enactment of the Federal Acknowledgement Act, the Bureau of Indian Affairs--an agency within the Department of the Interior--processed fully the applications of only 19 of the 120 tribes that had petitioned for recognition. Of those 19, the Bureau recognized only 8. (27)

B. Tribal Definitions

As a matter distinct from the process of tribal recognition, any individual Indian seeking government services must also be an enrolled member of a tribe eligible for such services. As sovereign nations, Indian tribes have the power to define their membership requirements as narrowly or as broadly as they wish, with the effect that many who might otherwise self-identify as Indian are left without formal tribal affiliation.

Eligibility for the majority of federal services thus rests on two qualifications: membership in an Indian tribe, and acknowledgment of that tribe as federally recognized. One commentator estimates that this bipartite test excludes nearly a half-million Indian people whose benefits are limited because they are unenrolled members of a federally recognized tribe, or because they are enrolled in a tribe that has been terminated or remains unrecognized. (28) Census data support this conclusion: Although more than 1.9 million people self-identified as Indian in the 1990 census, (29) barely 1 million satisfied the two prongs necessary for the full range of federal benefits. (30)

Among the more than 500 extant Indian tribes in the United States, definitions of tribal membership vary widely, but criteria used to determine membership fall into two principal categories: blood quantum requirements and descendancy from an enrolled ancestor. Though effective to differing degrees in controlling tribal growth and allocating scarce resources, both methods are detrimental to Indian tribes and individuals.

1. Blood quantum requirements.

Blood quantum requirements dictate the minimum percentage of Indian blood acceptable among tribal members, and range from as much as one-half to as little as one sixty-fourth. For example, while members of the White Mountain Apache Tribe must be half-bloods, members of the Eastern Band of Cherokee in North Carolina need have but one thirty-second Indian blood, and Tunica-Biloxi tribe members just one sixty-fourth. (31) Blood quantum requirements can exist in conjunction with other membership criteria, such as descendancy or residency requirements, or may be an alternative to such criteria.

Blood quantum requirements were pioneered by the federal government as a means to limit the number of "recognized" Indians, and thus the fiscal responsibility of the federal government toward them. Consistent with early twentieth century federal policies encouraging the assimilation of Indians into American society, such requirements were promulgated by the government in two ways. First, before formal processes were established to officially recognize Indian tribes, early governmental programs limited benefits to Indians based upon blood quantum. Second, the federal government encouraged Indian tribal councils to adopt minimum blood quantum standards as prerequisites to tribal citizenship. Today, however, arguments cut both for and against the continued utility and fairness of blood quantum requirements.

Why blood quantum requirements persist. Blood quantum requirements persist as criteria for tribal membership for three reasons: to conserve historic sources of federal resources, to prevent dilution of new sources of tribal wealth such as Indian gaming, and to maintain tribal character and identity.

In accord with the original rationale behind such requirements, minimum blood quanta continue to conserve the scarce federal resources available to Indian tribes. From an economic perspective, tribes face competing incentives when deciding whether to adopt strict or lax blood quantum standards. While more restrictive requirements best conserve the pool of resources available to the Indian population as a whole, adopting less restrictive requirements enables an individual tribe to grab a larger slice of the federal pie. Thus, a tribe might be expected to relax its own blood quantum standards in order to increase enrollment, but then to resist the relaxation of blood quantum standards across the board, lest other tribes increase greatly in size.

The advent of large-scale Indian gaming in the past decade has brought unprecedented wealth to Indian tribes throughout the country, and represents perhaps their strongest hope for self-sufficiency since colonial times. (32) Gross profits from Indian gaming now more than double the total federal budget for Indian assistance programs, topping five billion dollars in 1993. (33) Governed by the Indian Gaming Regulatory Act, which gives congressional approval to gaming activities on tribal land, gaming tribes are required either to use gaming revenues for public purposes or to distribute them among tribal members. (34) This wealth has had profound effects on Indian life, drawing scores of visitors to reservations, funding infrastructure improvements, improving tribal education, and endowing scholarship funds. (35)

But as the quality of reservation life has improved, so has the demand for tribal membership, particularly from those who previously self-identified as Indian but had little incentive to live within the Indian community. Gaming tribes have dealt with this renewed interest in divergent ways. Some tribes, encouraged by the promise of a revitalized reservation--and a corresponding increase in political clout--have welcomed new members to their fold. But far more tribes, for reasons both economic and political, have reacted in an opposite manner, increasing their blood quantum requirements in order to make application for membership less attractive--and less successful. Whether motivated by the desire to protect their new wealth from dilution, to slow booming economic growth to a sustainable level, or simply to prevent an influx of gold diggers and wannabes, Indian gaming has in many tribes led to a cultural backlash. Indeed, in many tribes, those "who had stuck it out through [the] lean, hard years resented those who came back to seek tribal membership" and viewed the latecomers as being "without the same rights as those who endured the years of hardship on the ancestral homelands." (36)

For the Mashantucket Pequot Tribe of Connecticut, the success of gaming has meant free college tuition, guaranteed casino jobs with starting salaries of sixty thousand dollars, and a tenfold increase in tribal membership--with ten new enrollment applications each week. In response, the Pequots instituted a one-sixteenth blood quantum requirement to control population growth. (37) Following suit were other gaming tribes, including the Eastern Band of Cherokees in North Carolina, who increased their blood quantum requirement from one thirty-second to one-sixteenth. (38)

Entirely aside from these economic incentives exists a set of sociopolitical incentives that foster the continued use of blood quantum requirements. Minimum blood quantum standards serve to protect the character and identity of tribes--to the extent that such identity is biologically based--from dilution by non-Indians or other Indian tribes. Though, given the imperfect information and human error that can muddy findings, the determination of blood quantum is not an entirely scientific endeavor, (39) it does present a crystalline rule that defines the boundaries of an Indian population. Beverly Louis, a former tribal councilperson and full-blooded member of the Sault Sainte Marie Tribe of the Chippewa, after witnessing lax membership requirements lead to explosive growth, (40) has advocated a half-blood membership requirement even if it would eventually preclude her own granddaughter from membership. According to Louis, if harsher requirements cause the tribal rolls to shrink, "perhaps Indians will be prompted to start marrying within the tribe." (41) Similar fears prompted the Seminole Nation of Oklahoma to adopt by referendum a one-eighth blood quantum requirement; the tribe's previous open enrollment standard had no quantum requirement. Enrollment officer Jane McKane indicated that "the blood quantum was getting so low that the people who were enrolling weren't even interested in the tribe. [The election committee] felt like we were really getting people with no Indian blood." (42)

How blood quantum requirements are problematic. Despite their economic and sociopolitical utility, blood quantum requirements are harmful to Indians for three principle reasons. First, due to intermarriage and admixture among cultures, subsequent Indian generations face great difficulty in meeting even loose blood quantum membership criteria, since the average blood quantum of their populations is inevitably diluted. Second, as individual Indians fall below minimum blood percentage cutoffs, they lose eligibility for essential federal services, such as health care. Third, to the extent that the term "Indian" should be socially--not biologically--defined, blood quantum requirements are overexclusive and, some argue, genocidal.

That no tribe requires full-bloodedness for membership is telling of the difficulties inherent in blood quantum requirements: Unless members procreate exclusively within their tribe, the average blood quantum of successive generations is mathematically destined to fall. Indeed, this phenomenon may have prompted the U.S. government to advocate the adoption of blood quantum requirements in the first place, to further the assimilation (some would say extinction) of Indian culture. Census figures suggest that this blood quantum dilution continues today: Indians have the highest rate of interracial marriage of any ethnic group in the United States, with more than half marrying outside their race, (43) and a congressional study has projected that the percentage of halfblooded Indians will decline from 87% in 1980 to a mere 8% by 2080. (44)

Interestingly, this phenomenon has led tribes to act in markedly different ways to avoid demise. After having twenty-seven members removed from its tribal rolls for falling below the minimum blood quantum, the Ysleta del Sur Pueblo Tribe decreased its minimum quantum from one-eighth to one-sixteenth. Though, at 1252 members strong, the tribe was in no immediate danger of extinction, it estimated that its rolls "would be reduced significantly within three generations." (45) Taking the other tack, the Salish-Kootenai Tribe of Montana responded to its diminishing numbers by tightening its blood quantum requirement to one-quarter, choosing "entrenchment" over "inclusiveness" as a survival strategy. (46)

Eligibility restrictions based upon blood quantum are particularly problematic for Indians of mixed tribal heritage. Since tribal membership requirements are generally tribe-specific, so-called "mixed bloods" may be entirely Indian by heritage, without having an adequate blood quantum to merit membership in any particular tribe. (47) Though raised on the Montana reservation of the Gros Ventre Indians, where four generations of his mother's family are buried, Robert Upham has been denied tribal membership because his blood lines are too thin. He is part Gros Ventre, Assiniboine, Nakota, Kootenai, and Salish Indian--but, to the Gros Ventre, he is simply a mixed blood, and is thus ineligible for tribal benefits. (48)

As individual Indians fall below minimum blood quantum levels, they are excluded not only from tribal membership and services but, additionally, from a multitude of federal programs provided to Indians. A recent study of Indian health care programs concluded that restricting benefit eligibility along blood quantum lines will result in the denial of care to many users, and higher costs for remaining users. Such a "fragmentation in the delivery of health services" may lead to a "forced exodus" from reservations and an overall "decreased participation in Indian affairs." (49) Noting that stricter eligibility criteria will exacerbate these effects, the researchers predicted: "This entire issue of blood quantum will only grow more serious and complex; it must eventually be addressed by tribes, the Congress, ... or the courts." (50)

Finally, to the extent that the term "Indian" should be socially, rather than biologically, defined, blood quantum requirements are overexclusive and, in the eyes of some Indians, even genocidal. That blood quantum requirements are exclusionary is self-evident; indeed, their very purpose is to draw relatively clear lines along which to allocate economic resources and political power. However, the distinction between legal and cultural definitions is not always clear, and political or economic determinations of Indian status cannot be divorced from their social effects. To be sure, it is common for Indians to stake their ethnic identities on their political status as tribal members. Says one card-carrying Oglala Sioux, a seventeen-year-old high school student: "To be recognized as an Indian, you can walk proud.... I can prove it. I have my U-number. I belong to something." (51)

But those who self-identify as Indian, yet are unable to gain acceptance into a tribe, offer a different perspective. Says one mixed-blood individual denied tribal membership: "Tribal enrollment [by blood quantum measurement] is racism, a form of genocide.... All of my pride is centered on my Indianness. It's sad that they have taken that away." (52) According to one Indian Law scholar, the quest for political recognition can obscure the very essence of what it means to be Indian, since recognition "may have nothing to do with who you are, how you live, what you do, [or] what your beliefs are; it has to do with the marriage and tribal enrollment patterns of your parents or grandparents as interpreted by federal bureaucrats." (53) Opponents of blood quantum requirements commonly point out that Indians are the only ethnic group whose members are forced to prove their ethnic identities. (54) Others point out that "Indianness should be measured by what's in the heart, not by what's in the blood." (55)

2. Descendancy requirements.

Descendancy criteria require that tribal members bear a lineal relationship to either current or ancestral tribal members. Such requirements fall into two camps. Commonly, tribes will accept as members those who can prove descendancy from an ancestor listed on an ancient tribal roll. Typical of this category is the Cherokee Nation of Oklahoma, which grants membership to "original enrollees or descendants of original enrollees listed on the Dawes Commission Rolls." (56) Likewise, in addition to a one-fourth blood quantum requirement, one band of the Lake Superior Chippewa Indians requires descendancy from a member listed on the tribal census of either 1928 or 1940. (57)

Other tribes limit membership to applicants with one or both parents already enrolled in the tribe. For example, the Onondaga Nation and the Seneca Nation, both of New York, restrict membership to those born to an enrolled mother. (58) The Papago Tribe of Arizona requires, for a grant of automatic citizenship, that both parents of an eligible child be members of the tribe living on the reservation. (59)

Descendancy requirements, though serving many of the same functions as blood quantum requirements, are conspicuously less contentious. However, the advantages and disadvantages of both types of requirements are largely similar.

Why descendancy requirements persist. Descendancy requirements persist as criteria for tribal membership for the same basic reasons that blood quantum requirements do: to conserve federal resources, to prevent dilution of tribal wealth, and to maintain tribal character and identity. They also last for one additional reason: When used in the absence of blood quantum requirements, they serve to preserve tribal character without diluting membership rolls over time.

Operating alone, descendancy requirements would prove significantly less effective than blood quantum requirements for the allocation of limited economic resources. With the passage of time and the birth of future generations, the number of descendants from a common ancestor--and thus the number eligible for tribal membership--will increase exponentially where descendancy is the sole criterion. Independent sources of tribal funding (such as gaming revenue) aside, accepting that federal funding will not increase in such a fashion makes a fiscal shortfall inevitable. It makes sense, then, that descendancy requirements are often--though not always--tethered to other membership requirements, such as blood quantum or residency.

Notably, descendancy requirements have not stoked opposition in the way that blood quantum requirements have, for two probable reasons. First, though they may be economically and politically less effective, descendancy requirements avoid the "dilution" problems associated with blood quantum requirements, and are thus perceived as less threatening to tribal survival. Second, descendancy requirements tend to focus attention on the preservation of tribal character, rather than on economic viability, and thus seem less objectionable.

How descendancy requirements are problematic. Descendancy requirements remain problematic for several reasons, some of which mirror the problems of blood quantum definitions, and others of which are unique. First, when operating alone, they are an ineffective means of resource allocation, since over time they allow for an exponential increase in the number of tribal members. (60) Second, to the extent that the term "Indian" should be socially--rather than biologically--defined, descendancy requirements also "racialize" an identity that should be socially based, since they require ancestral ties. Third, descendancy criteria also present problems of proof, especially when new applicants for tribal membership must trace their descendancy from an ancient member, but lack the birth records and other documentation to do so.

C. Toward a "Functional" Definition of Indian Ethnicity

As a practical matter, how the term "Indian" is defined would be of little importance did it not implicate the allocation of federal and tribal resources. Were the availability of funding based solely on cultural self-identification, the demand for that funding would surely exceed the available supply; therein lies the tension between the cultural and legal definitions of the term "Indian." Although a loose definition that allows for self-identification may theoretically be ideal, the scarcity of federal resources precludes such an approach. Thus, although exclusionary definitions--including those with a biological basis-may fall short of the cultural ideal, some type of exclusionary definition is necessary to effectively allocate limited federal funds. (61)

Ideally, then, a workable definition of Indian ethnicity must strike a balance between inclusivity and exclusivity: It must broadly identify those Indians potentially eligible for federal or tribal benefits, but must somehow circumscribe the subset of Indians that actually receive the benefit of such services. I will refer to this as a functional, as opposed to a cultural, definition of the term "Indian"--though it would not seek to exclude any self-identifying Indian from culturally and socially identifying as such, it would intend to prohibit some self-identifying Indians from securing the benefits of federal and tribal funding. (62) A functional definition of Indian ethnicity should also be inexpensive to administer, and must be relatively error-free. In addition, to serve as a superlative indicator of ethnicity, a functional definition of the term "Indian" should eliminate, or at least minimize, the problems normally implicated by use of the more common methods of ethnic identification. (63)

The two major methods used to ethnically identify Indians--blood quantum standards and descendancy requirements--though effective to a certain degree in controlling tribal growth and allocating scarce resources, are detrimental to Indians, regardless of whether employed by the federal government or implemented by individual tribes. Both present problems of proof: Since they require extensive and accurate record keeping, both methods are imperfect when records are incomplete or human error is likely. To the extent that they are overexclusive, both reduce the number of Indians and Indian tribes eligible for public funding and other essential services. And, inasmuch as they conflict with the premise that ethnicity is strictly a social and not a biological construct, both methods run contrary to modern sociobiological thought. (64) Blood quantum requirements raise the additional problem that, given the inevitable march of time, they will be rendered useless since they threaten to vastly diminish tribal rolls by the end of this century. In Part II, this Note questions whether genetic testing can offer a superior definition of Indian ethnicity.

II. CAN GENETIC TESTING IMPROVE ETHNIC IDENTIFICATION?

In the wake of the recently completed and widely publicized Human Genome Diversity Project (HGDP), the potential of genomics, while certainly enormous, has risen to near-mythic proportions. As modern genomic research becomes more commonplace, and as the promise of genetic therapy creeps toward reality, the public may become increasingly inclined to subscribe to a theory of genetic essentialism--basically, the notion that our genes determine who we are. As one group of scholars explains, "An unintended byproduct of the genomics revolution is a naive, almost religious faith in the power of genetics. The gene has become a powerful cultural icon; genetic explanations have a pride of place in the popular imagination." (65)

In light of this increasingly common perception, it is interesting to consider one of the more surprising conclusions of the HGDP: Human beings share more than 99.9% of their DNA. (66) Indeed, there is more genetic variation within a single race than there is among different races. (67) This revelation has had critical implications for the meaning of race, which is now largely considered a social construct, rather than a biological reality. However, this is not to say that there is no genetic variation among ethnic groups, or that what little genetic variation exists is negligible. On the contrary, this genetic variation is responsible for the outwardly visible physical variation among ethnic groups-skin color, eye and nose shapes, and hair color, for example--that provide the usual bases for racial classifications.

It is important to note, however, that although stereotypical differences in outward physical characteristics are perhaps the most obvious manifestation of genetic variation among ethnic groups, they are not the only type of variation. Genetic variation among ethnic groups also exists within genes that code for nonoutward traits, such as blood type or predisposition to certain diseases, as well as within stretches of DNA that do not code for any expressed trait. These three types of variation among ethnic groups can be quantified in two traditional ways that allow us to describe an ethnic group in genetic terms: by the analysis of the relative prevalence of variants, and by the survey of unique private polymorphisms. A newer method, called ethnic-affiliation estimation, may also prove useful to genetically describe ethnic populations. The advantages--and limitations--of each of these three methods are assessed in this Part.

A. Prevalence of Variants Within Human Subpopulations

Most phenotypic variation among ethnic groups--such as differences in coloration and facial features--is controlled not by a single gene, but by many genes working in concert. For example, there is no single gene that determines height; rather, the products of many genes work together in complicated biochemical pathways to determine how short or tall a person will become. However, other physical traits are controlled by a single gene locus, making their analysis more straightforward; the ABO blood group system is a famous example of such a trait. (68)

When a physical trait is exhibited by a population in two or more forms, the contrasting forms are called morphs or, more commonly, variants. For example, the ABO blood group system consists of four variants: types A, B, AB, and O. A population is said to be polymorphic ("many forms") for a trait if two or more variants are represented in high enough frequencies to be noticeable. Human subpopulations almost universally exhibit observable frequencies of at least two of the four ABO blood group variants; thus, they are said to be polymorphic for this trait. (69)

Analysis of the differential prevalence of variants among human subpopulations enables us to make a descriptive statement, in genetic terms, about the characteristics of different ethnic groups. Although nearly all human subpopulations exhibit blood types A, B, AB, and O to some degree, the proportion of members falling into each category varies dramatically among subpopulations. For example, it is known that Armenians are about 50% type A, and that some South American native peoples are nearly 100% type O. (70)

Such analyses often contribute to studies of migration, linguistics, and evolution. For example, when isolated populations exhibit a high proportion of a single variant, it is often the result of a founder effect (in which an entire population descends from a small number of ancestors) or a population bottleneck (in which some outside influence, often a natural disaster, greatly reduces the size of a population, essentially resulting in a novel founder effect). Likewise, evolutionists often supplant linguistic studies with genetic evidence of variation in order to decipher global patterns of migration. However, while these applications have proved helpful in estimating the arrival dates of indigenous peoples to the Americas, variant analysis is less helpful as a positive indicator of Indian descent so long as the variants used are common to other human subpopulations.

Regardless of the precision with which the relative prevalence of variants within a subpopulation can be determined, so long as those variants are also commonly present--to whatever degree--outside that subpopulation, no positive identification can be made on the basis of that trait. For example, even if 100% of a hypothetical North American Indian tribe were type O, the conclusion that a prospective member is descended from that tribe because he is also type 0 does not follow; since type 0 is a common variant, there are many type O individuals throughout the world that are not tribal descendants. Thus, so long as the variants analyzed are common to other human subpopulations, variant analysis will be virtually useless for identifying an individual as a member of a specific race.

B. Private Polymorphisms

Private polymorphisms are related to the polymorphic traits studied in variant analysis, but are more unusual, and thus more helpful, in genetically defining an ethnic group. A private polymorphism is a variation, often found in a noncoding region of a gene, that is common within a subpopulation but is otherwise rarely observed. Often, private polymorphisms are created when an ancestor passes a spontaneous mutation to his descendants, this mutation being unique to them. Private polymorphisms can arise throughout the human genome. However, due to their unique inheritance patterns and their ability to escape regular recombination processes, two specific portions of the genome are particularly conducive to the analysis of private polymorphisms: the Y chromosome and the mitochondrial DNA.

1. The Y chromosome.

The vast majority of the DNA in a human cell is found in the cell nucleus, subdivided into twenty-three pairs of molecules known as chromosomes; each pair consists of one maternal and one paternal chromosome. Chromosomes one through twenty-two are structurally similar to their pairs, and when a cell duplicates, these pairs often swap segments with one another in a process called recombination, resulting in paired chromosomes with new combinations of genes. (71)

However, the twenty-third pair of chromosomes--the so-called sex chromosomes--may or may not be structurally similar, depending on the sex of the individual. The sex chromosomes in human females, typically two X chromosomes, are structurally similar and will recombine normally. But the sex chromosomes in human males, typically one X and one Y chromosome, are somewhat structurally dissimilar and are unlikely to recombine. (72) Since Y chromosomes are transmitted strictly paternally, and since they escape regular recombination, any variation in the Y-chromosome sequence of an individual can result only from the accumulation of mutations as the Y chromosome is transmitted from father to son. (73)

A group of geneticists and biochemists at Stanford University recently discovered a Y-chromosome polymorphism unique to indigenous populations in the Americas. By sequencing the Y chromosomes of 173 human subjects, the research team discovered a single base pair mutation, at the DYS199 locus, present in more than 90% of Central and South American subjects, 67% of Eskimo subjects, and 50% of North American Navajo subjects--but absent in all subjects outside the Americas. (74) These data suggest that the DYS199 mutation originated either during the early stages of human habitation of the Americas, or shortly before that time, "in the ancestral population(s) from which all [indigenous] Americans may have originated." (75)

Since this polymorphism is apparently private to indigenous American populations--that is, it is common among indigenous Americans, but otherwise nonexistent--it has the potential to affirmatively "mark" those of Indian descent, something that variant analysis fails to accomplish. However, few Y-chromosome private polymorphisms have so far been identified, likely because there is relatively little variability on the chromosome, most Y-chromosome DNA is quite stable and is unlikely to mutate, and many gene loci on the chromosome are not amenable to convenient analysis. (76)

2. Mitochondrial DNA.

As mentioned above, most DNA in a human cell is found in the cell nucleus, packaged into the familiar forty-six chromosomes. But, a small amount of DNA also resides in the mitochondria, where it codes for the synthesis of proteins the mitochondria need to convert food into cellular energy. (77) Since mitochondria are situated in the cytoplasm of the cell, and since the ovum always contributes much more cytoplasm to the human embryo than does the sperm, the mitochondria--and, thus, the mitochondrial DNA--come exclusively from the mother. (78)

Several characteristics of mitochondrial DNA (mtDNA) make it an ideal subject for genetic analysis. (79) Human mtDNA is a small, circular molecule present in 3000-5000 identical copies per cell. (80) It is inherited strictly maternally (81) and, like Y-chromosome DNA, it does not recombine. (82) Thus, any variation in mtDNA sequence results from the accumulation of mutations as mtDNA is transmitted from a mother to her children. (83)

Searches for private polymorphisms in mtDNA have been more successful than those in the Y chromosome, probably because the mitochondrial genome accumulates new mutations seven to ten times faster than the nuclear genome. (84) As a result of its increased utility, mtDNA analysis has been used extensively to chronicle the migration of indigenous peoples throughout the Americas, often serving to corroborate previous linguistic groupings. (85) Such studies generally conclude that American Indian mtDNA has evolved "into four discrete lineages, each characterized by a specific private polymorphism closely related to one also found in their hypothesized Asian ancestors." (86) For example, an analysis of the Pima and Papago Indians of the southwestern United States has revealed that 41% of these indigenous populations harbor the rare polymorphism HincII morph 6, a variant found in only 2% of Asian subjects and absent in European and African subjects. (87)

Like the recently discovered DYS199 mutation, mtDNA private polymorphisms allow scientists to identify individuals of Indian ancestry by the presence or absence of a single gene. Though polymorphisms like HincII morph 6 are not perfectly private, since they are not exclusively present in American Indians, their prevalence in non-American subpopulations is low enough to make them a powerful diagnostic tool. Further, since mtDNA private polymorphisms are more abundant and more easily studied than their Y-chromosome counterparts, the mitochondrial genome may continue to be a fruitful ground for research.

C. Ethnic-Affiliation Estimation with Population-Specific DNA Markers

The utility of private polymorphisms is limited by the extent to which they are private: A particular polymorphism, no matter how prevalent in the target population, is useless as a positive indicator of ethnicity if it is also common outside the target population. Thus, for ethnic identification by Y-chromosome and mtDNA analysis to be successful, the identification of rare polymorphisms is essential. Since there is actually very little genetic variation among ethnic groups, there may simply be few private polymorphisms awaiting discovery; more often, certain variants will be somewhat more prevalent in some populations than in others, but will not be perfectly private. Ethnic-affiliation estimation (EAE) is a developing statistical technique that analyzes variants that are significantly more prevalent in one subpopulation than in another--essentially, polymorphisms that are "private enough" for confident analysis--and then makes imperfect predictions of individual ethnic ancestry based on the presence or absence of such variants. (88) By analyzing variants deemed useful in distinguishing between two populations, researchers claim to be able to reliably estimate the ethnic identity of an individual in one of those populations, with a success rate approaching 99% when the twenty most discriminating variants are used. (89) Though studies have focused on distinguishing European American populations from African American and Hispanic American populations, researchers claim that similar sets of markers could be developed for other, less common U.S. populations such as American Indians. (90)

Although EAE techniques show promise for identifying Indian ancestry by genetic makeup, they are not yet viable alternatives to private polymorphism identification for two reasons. First, the statistical methodology of EAE has been called seriously flawed, and may be subject to sampling bias. (91) Though such challenges call into question the success of EAE, future fine-tuning is likely to make its methods sufficiently sophisticated to lead to "an assignment of the probability that someone ha[s] significant ancestry from certain broadly defined ethnic groups." (92) Second, to assemble a collection of suitable genetic markers, EAE will require the harvesting and compilation of genetic data from thousands of Indians--an expensive and time-consuming proposition, especially in light of the numerous mtDNA markers already uncovered.

D. Limitations of DNA Analysis

Of the principal methods of ascribing genetic characteristics to specific ethnic groups, it is clear that: (1) variant analysis has little power to identify the ethnicity of individuals; (2) EAE, though more powerful than variant analysis, requires additional refinements and has not yet been successfully applied to Indian populations; and (3) identification of private polymorphisms, particularly via Y-chromosome and mtDNA analysis, is an accepted means to define the common genetic characteristics of an ethnic group, and an accurate means to determine whether an individual has some degree of Indian ancestry. However, the utility of private polymorphism analysis is subject to a number of limitations, which are best examined by asking whether the presence of a particular private polymorphism is "proof" of Indian ancestry, whether the absence of a particular private polymorphism is "disproof" of Indian ancestry, and whether the presence of such a polymorphism can indicate the degree of Indian ancestry.

1. Is presence of a private polymorphism proof of Indian ancestry?

In short, the answer is a qualified yes. The Y-chromosomal mutation at the DYS199 locus, discussed above, provides a neat illustration. This mutation is present, to varying degrees, in indigenous populations throughout the Americas, but in no other populations worldwide. Thus, absent laboratory error, an individual testing positive for this rare variant is certain to have indigenous ancestry--unless the Y chromosome of one of his paternal ancestors spontaneously mutated to generate an identical polymorphism (a "parallel mutation") at the DYS199 locus, an event that has a small, but not negligible, chance of occurring. (93)

2. Is absence of a private polymorphism disproof of Indian ancestry?

Certainly not, for two reasons. First, akin to the parallel mutation described above, there is a small chance that the absence of a particular polymorphism could be the result of a second mutational event (a "reverse mutation") that abolished the preexisting variant. (94) But a second, more important reason that the absence of a rare variant fails to disprove Indian descendancy is that the Y chromosome and mtDNA follow unique patterns of inheritance--and therein lies the most significant limitation of private polymorphism analysis. The modes of transmission of these particular DNA stretches--with the Y chromosome passing along strict paternal lines, and mtDNA along strict maternal lines--mean that having just one non-Indian ancestor can render these tests useless.

3. Can presence of a polymorphism indicate degree of Indian ancestry?

Again, the answer is an unqualified no. The chart presented in Figure 1 (below) graphically illustrates the patterns of Y-chromosome and mtDNA inheritance, and illuminates the significant limitations of private polymorphism analysis. Note that the presence of a Y-chromosomal mutation at the DYS199 locus of the tested individual suggests only that the father of his father's father carried the same mutation, and thus descended from indigenous stock; it says nothing about the ancestry of the tested individual's other three paternal grandparents. Likewise, the presence of the rare variant HincII morph 6 in the mtDNA of the tested individual suggests only that the mother of his mother's mother carried the same mutation, and thus descended from indigenous stock; it says nothing about the ancestry of the tested individual's other maternal grandparents. Therefore, it is apparent that an individual may test positively for either of these private polymorphisms, yet be as little as one-eighth Indian by blood. Conversely, an individual may test negatively for both of these private polymorphisms and be three-quarters Indian by blood.

[FIGURE 1 OMITTED]

And, of course, Figure 1 examines only three prior generations; these limitations are magnified as the number of generations increases. For example, looking back just three additional generations, an individual might test positively for either polymorphism while being but one sixty-fourth Indian by blood, a level of blood quantum accepted by only the most lenient tribes. Likewise, he might test negatively for both polymorphisms while being sixty-two sixty-fourths Indian by blood, nearly full-blooded by any measure. Given the high rate of intermarriage, and thus of genetic admixture, that occurs among Indians in the United States--and the economic resources at stake for being defined as an Indian--both Indian tribal governments and the U.S. government have cause to be skeptical of the utility of these tests.

E. Assessing the Utility of DNA Analysis

Thus, although the analysis of private polymorphisms by Y-chromosome and mtDNA testing is currently the best method to identify the ethnic ancestry of an individual, its limitations are clear. First, a positive test for either of these polymorphisms proves only that someone, at some point in the direct paternal or maternal lineage, descended from indigenous stock--the precise degree of ancestry cannot be determined. Second, no useful conclusion can be drawn from a negative test for either or both of these polymorphisms. Therefore, until EAE can be proven useful for Native American populations--that is, after its statistical methods have been refined and useful population-specific variants have been identified--DNA analysis will be of only marginal utility as an ethnic identifier.

Interestingly, the limitations of these forms of DNA analysis have not stopped private testing facilities from offering their services to the public--and from profiting from customer ignorance. Among the genetic testing services offered by GeneTree, a California-based DNA testing center, is "Native American Verification Testing." For a fee of $245, GeneTree will analyze DNA (obtained by a cheek swab) for the Y-chromosomal mutation at DYS199, and for an additional $245, will also scan for the series of mtDNA polymorphisms unique to Native American populations. Though the company's website acknowledges that both the Y chromosome and mtDNA are inherited only in limited patterns, it also advertises that "DNA testing can definitively determine questions" regarding Native American ancestry. (95)

III. ATTEMPTS TO GENETICALLY DEFINE INDIANS--AND NATIVE AMERICAN REACTION

Unsurprisingly, attempts to genetically define Native Americans have garnered the attention of not just anthropologists and geneticists. At least one Indian tribe seeking federal recognition has tried to use DNA technology to establish a genetic link to other tribes. And, in response, at least one state government has considered legislation that would enable hopeful Indians to "conclusively" establish their ethnic identities.

A. Vermont House Bill 809

The Western Mohegans, a band of about 330 Indians living on ancestral lands along the border of New York and Vermont, once declined to sign a recognition treaty with the U.S. government. Now seeking state and federal recognition, the Mohegans--like others in their shoes--have found that they lack adequate genealogical documentation to prove their ancestry to the government, and have been denied status as a recognized tribe--and the benefits that accompany such recognition. In an attempt to establish a genetic link to the Mohican Indians of Wisconsin, a federally recognized tribe to which they claim ancestral ties, the Mohegans privately contracted to undergo DNA testing, the results of which they claim demonstrate such a genealogical relationship. To further their case for recognition, and to help other Indians who lack genealogical documentation, the Mohegans lobbied Vermont legislators to endorse the reliability of DNA testing as a means of establishing ethnic identity. (96)

In the Vermont Assembly, sympathetic Representative Fred Maslack in early 2000 sponsored a bill that would have authorized the state health commissioner to develop standards by which DNA testing could be used to "conclusively" identify those of Native American ancestry, at their request and personal expense. (97) In support of H. 809, Rep. Maslack commented, "It makes sense to me that science should have the last word," adding that, in the future, "this could be the definitive method." (98) It seems that few of his colleagues agreed: The bill, referred to the Committee on Health and Welfare in February 2000, has given him "nothing but grief" and is unlikely to be reintroduced. (99)

Rep. Maslack might be well advised to let his bill die quietly, for two reasons. First, the science supporting the bill is, at best, sketchy. The measure would limit analysis to the DNA variants that code for the human leukocyte antigens (HLAs), proteins situated on the surface of white blood cells that mediate the immune response. Because of their direct relationship to immunity and disease, HLAs have been studied extensively to uncover correlations between particular HLA variants and specific diseases. (100) However, HLA testing has not been successfully used to define ethnic groups in genetic terms. Essentially, this is because HLA DNA, though highly variable, is not much different than other polymorphisms examined by variant analysis: Although certain HLA variants may be more common in some subpopulations than in others, unless a particular variant is unique to one population, it can yield no conclusive determinations about ethnicity. (101) Indeed, Dr. Patrick Beatty, who has studied the frequencies of HLA variants among North Americans as part of the National Marrow Donor Program, notes: "I know of no HLA markers which are unique to Native Americans, or for that matter, any other major racial [or] ethnic category." (102)

Second, aside from the lackluster response of his Assembly colleagues to the proposed legislation, reaction from the community can fairly be characterized as nothing short of outrage. The Vermont Governor's Advisory Commission on Native American Affairs minced no words in its attack on H. 809, calling it "racist, unethical, and immoral." (103) Journalists warned that the proposal smacked of eugenics. (104) But by far, the loudest cries came from Native American activists. Their objections to Rep. Maslack's proposal--and to genetic testing in general--are surveyed in the balance of this Part.

B. Native American Objections to Genetic Definitions of Ethnicity

Rep. Maslack's proposal struck a chord with outspoken members of the Indian community. Their reactions, though often visceral rather than reasoned, ranged from confusion to anger, and highlight some of the most troubling aspects of Rep. Maslack's proposal and of the application of genetic testing to Indian populations in general. Indian objections to genetic testing are generally threefold: (1) The term "Indian" represents a cultural identity that defies biological definition; (2) genetic descriptions of the term "Indian" threaten to usurp tribal sovereignty; and (3) condoning the use of genetic testing in this context will legitimize its abusive use in other contexts.

1. "Indian" is a culture--not a genotype.

Native Americans commonly argue that Indian status should be a cultural determination, not a biological one. Ethnic groups, they insist, are merely social constructs, and we must avoid reinforcing the assumption that ethnic identity is biologically determined. In this struggle, Native Americans have garnered widespread support from both activists and scientists. The Vermont Governor's Advisory Commission on Native American Affairs has warned that genetic testing threatens to reduce being Indian to a "racial type," instead of a "spiritual identity." (105) Morris Foster, an anthropologist at the University of Oklahoma, cautions that "it is absurd to try to define what is essentially a social identity by using biological characteristics." (106) And one researcher with the International Institute for Indigenous Resource Management in Denver suggests that scientists and policymakers who propose genetic testing as a means of ethnic identification "equate culture with race and assume that the characteristics of both can be detected biologically." (107)

However, insofar as genetic testing is criticized for attempting to define a social identity using biological characteristics, it differs remarkably little from the use of blood quantum standards: both are undeniably biological measures. In addition, such objections largely reflect confused terminology, and highlight the need to exercise caution with hot-button words like ethnicity, race, and culture.

Because it lacked careful language, H. 809 fueled the fears of Indian tribes. By proposing that the results of DNA-HLA testing would serve as "conclusive proof' of Native American ancestry, and further, that test results would "determine the identity of an individual as a Native American," (108) Rep. Maslack erred in suggesting that ethnic identity could be determined by genetic testing alone. However, this was probably not the bill's intent.

Under the commonly accepted premise that race and ethnicity are social constructs, not biological ones, no serious scientist (and hopefully, no legislator) would conflate a genetic inquiry into an individual's ancestral roots with a description of his present-day cultural ties. The DYS199 mutation does not make a man Indian--it merely suggests that one of his progenitors had indigenous roots. Further, even if DNA evidence could reveal that an individual is a full-blooded Indian, he is only politically Indian--and thus eligible for federal benefits--if granted citizenship by a federally recognized tribe.

2. Genetic definitions of "Indian" will usurp tribal sovereignty.

The autonomy to determine their own citizenship requirements instills in Indian tribes a sense of self-determination that is closely guarded. Genetic techniques for authenticating Indian heritage, whether promulgated by scientists or sanctioned by state governments, threaten to displace tribal definitions of citizenship with genetic ones, and usurp the sovereignty of tribes. Indeed, there is a common fear that by acquiescence to genetic definitions, tribes will eventually relinquish the right to define their populations. However, such a consequence seems unlikely, given the well-settled principle that Indian tribes, as sovereign governments, have the inherent power to establish their own membership criteria. This principle of self-determination has been specifically recognized by the Supreme Court, which has noted that a tribe's right to define its own membership criteria "has long been recognized as central to its existence as an independent political community." (109) This principle seems unlikely to be challenged.

There is related concern that, although H. 809 offered genetic testing as an alternative method for establishing heritage, such testing may eventually become the sole method for doing so; thus an individual lacking the typical Native American genetic markers would be denied classification as Indian. Some of this worry stems from a simple misunderstanding of the proposal. One observer noted that the "ambiguity of the [proposed] legislation resulted in misinterpretations that the legislation was meant to require DNA analysis to prove an individual's tribal affiliation." (110) Other commentators feared that the alternative might evolve into a requirement, noting that although "the current proposal does not contain wording that would negate other acceptable methods of identifying one's heritage, future application could do just that." (111) This concern belies a misconception of the power of established methods of genetic analysis, and a lack of recognition of their limitations. Even the most accurate methods of genetic analysis of ethnicity--Y-chromosome and mtDNA private polymorphism analysis--cannot conclusively disprove Native American ancestry. And, despite their promise, statistical methods such as EAE will probably not be able to render more than an imperfect estimate of the degree of ethnic ancestry. The possibilities of genetics are not without limits, and these weaknesses will prevent genetic testing from becoming the sole indicator of ethnicity.

3. Condoning genetic testing in this context legitimizes scientific inquiry, and its consequences, in other contexts.

Several commentators have suggested that Indians have both a general aversion to the methods of scientific inquiry and a fear of its consequences. With respect to the methodology, observers have noted that this anti-science sentiment stems partly from feelings of intimidation engendered by the complexity of technology, partly from fear that scientific analysis is prone to error, and partly from traditionalist attitudes that characterize technology as the "anti-traditional, anti-spiritual ... earth-destroying work of the White man." (112)

Further, the potential negative consequences of scientific inquiry have led many Indian communities to fear genetic research, and to distrust the motives of scientists. Anger abounds toward research perceived as an attempt to provide contrary answers to strongly held beliefs about the origin of Indian tribes, particularly when such questions are posed not by indigenous populations themselves, but by researchers. The assumption that Indian ancestry "will be 'discovered' and scientifically 'answered' is insulting to groups who already have strong beliefs regarding their origins." (113)

Given the historically poor treatment of Native Americans at the hands of the U.S. government, these fears are not unfounded. Indeed, since traditional Indian claims to property--and to land, especially--have often been sacrificed in the name of progress, perhaps their skepticism of modern genetic testing is justified. Specifically, fears that revisionist theories of indigenous migration may contradict settled Indian territorial claims are likely to resonate with many Indians. These are fears to which scientists should be sympathetic.

However, far from evincing sympathy, scientists have an unfortunate history of marginalizing the "traditionalist" objections of Native Americans to research on their soil and ancestral remains; the recent controversy over the remains of "Kennewick Man" comes to mind. In 1996, researchers unearthed a set of human remains near Kennewick, Washington, that radiocarbon dating estimated to be 9000 years old. Challenging the power of Indians to claim the bones of their ancestors, a group of scientists sued to enjoin the return of the remains, alleging an interference with their "constitutional right to scientific inquiry." (114) So began a five-year legal battle, still not fully resolved, over the disposition of the Kennewick Man remains. (115) The following statement, issued by one tribe claiming ownership of the remains, illustrates well the tension between traditional Indian culture and modern scientific thought:
 Our elders have taught us that once a body goes in the ground, it is
 meant to stay there until the end of time.... We do not believe that
 our people migrated here from another continent, as the scientists
 do.... Some scientists say that if this individual is not studied
 further, we, as Indians, will be destroying evidence of our history.
 We already know our history. It is passed on to us through our
 elders and through our religious practices. (116)


When scientific inquiry frequently results in "truths" that contradict their traditions and religion, Indian tribes are naturally wary of condoning genetic research. Further, should they accept its validity for authenticating ancestral ties, they may be hard-pressed to reject its conclusions with respect to migration and evolution. Both scientists and policymakers should be responsive to these concerns.

CONCLUSION

Whether seeking tribal membership or federal recognition, welfare benefits or a sense of belonging, Indians in the United States face a bumpy road--one that is not becoming smoother. Federal acknowledgement is increasingly rare. Blood quantum requirements threaten to make enrollment plummet over the next century. And, for unenrolled Indians and Indians enrolled in unrecognized tribes, a lack of political affiliation can leave them feeling "less Indian."

Despite its mythical promises, genetic testing is no panacea. The reality is that genetic testing is of limited utility as an ethnic identifier: Because of the patterns of genetic inheritance, even the most advanced methods of genetic testing will fail to identify a huge proportion of those with Indian ancestry. And, the degree of Indian ancestry of those positively marked by rare polymorphisms is currently impossible to determine by genetic tests alone. Considering also the objections of Native Americans and the cost of genetic testing, one is left wondering whether, on balance, the prospect of genetic testing does Indians more harm than good.

However, though not useful as absolute indicators of ethnicity, genetic tests like mtDNA and Y-chromosome analysis will continue to uncover useful pieces of genealogical information that--in conjunction with anthropological studies and descendancy records--can help flesh out the nooks of Indian history. But to preserve and nurture even this measure of utility, scientists and legislators must tread lightly, use careful language, and be sensitive to the concerns of the ethnic and cultural groups they are trying to help.

(1.) Donald L. Barlett & James B. Steele, Special Report: Indian Casinos: Who Gets the Money?, TIME MAG., Dec, 16, 2002, at 48.

(2.) Sheba R. Wheeler, Indian Lineage Rules Decried: Tribal-Blood Limits Called Exclusionary, DENVER POST, Mar. 22, 1999, at B1.

(3.) Kimberly TallBear, Genetics, Culture and Identity in Indian Country 2 (Oct. 23-27, 2000) (paper presented at the Seventh International Congress of Ethnobiology in Athens, Ga.) (on file with author).

(4.) H. 809, 1999-2000 Leg. Sess. (Vt. 2000).

(5.) See the Internet website for GeneTree DNA Testing Center, at http:// www.genetree.com (last visited Sept. 15, 2003).

(6.) See, for example, the Internet website for Houston-based Family Tree DNA, http://familytreedna.com (last visited Sept. 15, 2003), and the "Health and DNA" Internet website sponsored by Seattle's Genelex Corp., http://healthanddna.com/ancestry.html (last visited Sept. 15, 2003).

(7.) There is widespread debate, but no consensus, on the propriety of the use of the terms "Indian" and "Native American." Recognizing the shortcomings of each, this Note uses the terms interchangeably, but predominantly employs the former--as do the majority of statutes, court decisions, and Indians themselves. See Virginia Davis, A Discovery of Sorts: Reexamining the Origins of the Federal Indian Housing Obligation, 18 HARV. BLACKLETTER L.J. 211, 211 n.1 (2002); David C. Williams & Susan H. Williams, Volitionalism and Religious Liberty, 76 CORNELL L. REV. 769, 820 n. 190 (1991). Though the term "Native American" sometimes implies a broader scope, including other indigenous American peoples such as Eskimos and Aleuts, such an interpretation is not intended here.

(8.) Sharon O'Brien, Tribes and Indians: With Whom Does the United States Maintain a Relationship?, 66 NOTRE DAME L. REV. 1461, 1461-62 (1991).

(9.) See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978) (recognizing that "a tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community").

(10.) Lone Wolf v. Hitchcock, 187 U.S. 553, 565-66 (1903). A relevant exercise of this plenary power is seen in 25 U.S.C. [section] 1302 (2003), which generally prohibits Indian tribes from violating the Bill of Rights when exercising their powers of self-government.

(11.) O'Brien, supra note 8, at 1481.

(12.) 25 C.F.R. [section] 83.2 (2002).

(13.) 25 C.F.R. [section] 83.7 (2002).

(14.) Id.

(15.) 25 C.F.R. [section] 83.7(e)(1)(v) (2002).

(16.) 25 U.S.C. [section] 1601 (2002).

(17.) 25 U.S.C. [section] 2403 (2002).

(18.) 20 U.S.C. [section] 1001 (2002).

(19.) 25 U.S.C. [section] 1901 (2002).

(20.) O'Brien, supra note 8, at 1470.

(21.) See, e.g., 25 U.S.C. [section] 703(a) (2002) (terminating the federal trust relationship with the Western Oregon Indian tribe).

(22.) Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-13 (1968).

(23.) O'Brien, supra note 8, at 1472.

(24.) Id. at 1477.

(25.) Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 65 Fed. Reg. 13,298 (Mar. 13, 2000).

(26.) O'Brien, supra note 8, at 1475.

(27.) Id.

(28.) Margo S. Brownell, Who is an Indian? Searching for an Answer to the Question at the Core of Federal Indian Law, 34 U. MICH. J.L. REFORM 275, 299 (2001) (citing FERGUS M. BORDEWICH, KILLING THE WHITE MAN'S INDIAN 63 (1996)).

(29.) U.S. CENSUS BUREAU, 1990 CENSUS SUMMARY TAPE FILE 1C, TABLE 7: DETAILED RACE, available at http://homer.ssd.census.gov/cdrom/lookup (last visited Aug. 31, 2002).

(30.) BORDEWICH, supra note 28, at 67.

(31.) Id. at 72-73.

(32.) Mark Neath, American Indian Gaming Enterprises and Tribal Membership: Race, Exclusivity, and a Perilous Future, 2 U. CHI. L. SCH. ROUNDTABLE 689, 689 (1995). In 1993, the average gaming tribe posted twenty-five million dollars in gaming revenues, a figure comprising 70% of the average tribal budget. Id. at 692.

(33.) Id. at 689.

(34.) 25 U.S.C. [subsections] 2701-2721 (2003).

(35.) Neath, supra note 32, at 692.

(36.) James May, California: To Be Indian, or Not to Be, INDIAN COUNTRY TODAY, Aug. 9, 2000, available at http://www.indiancountry.com (last visited Sept. 22, 2003).

(37.) Neath, supra note 32, at 695.

(38.) Charlotte Neely, Adaptation and the Contemporary North Carolina Cherokee Indians, in INDIANS OF THE SOUTHEASTERN UNITED STATES IN THE LATE 20TH CENTURY 37 (J. Anthony Paredes ed., 1992).

(39.) One Chicksaw Indian had his degree of Indian blood reduced from full-blood to half-blood by the Bureau of Indian Affairs because he was illegitimate and lacked a judicial determination of paternity, even though the state of Oklahoma had granted him a birth certificate that described his father as a full-blood Chicksaw. Brownen, supra note 28, at 289.

(40.) Id. at 310. After discarding its blood quantum requirement in 1975, the tribe grew from 1300 to 21,000 members. Id.

(41.) Id. at 312.

(42.) Mary Pierpoint, Seminole Nation Changes Tribal Enrollment, INDIAN COUNTRY TODAY, July 19, 2000, available at http://www.indiancountry.com (last visited Sept. 22, 2003).

(43.) Michael A. Fletcher, Census Change Could Have Little Effect; Proposed Multiracial Option Would Not Shift Next Tally, Test Shows, WASH. POST, May 16, 1997, at A23 (citing Roderick Harrison, chief of the Census Bureau's racial statistics branch). By comparison, about 25% of Asian Americans and 6% of blacks marry outside their race. Id

(44.) BORDEWICH, supra note 28, at 87.

(45.) S. REP. No. 106-464, at 1-2 (2000). The Congressional Budget Office estimated the change would increase the population of the tribe by about 550 members in a single year. Id. at 3.

(46.) Brownell, supra note 28, at 309-10.

(47.) Rose L. Pfefferbaum, Betty Pfefferbaum, Everett R. Rhoades & Rennard J. Strickland, Providing for the Health Care Needs of Native Americans: Policy, Programs, Procedures, and Practices, 21 AM. INDIAN L. REV. 211, 251 (1997).

(48.) Wheeler, supra note 2.

(49.) R. Pfefferbaum et al., supra note 47, at 251 (citing Rashid Bashshur, W. Steeler & Tau Murphy, On Changing Indian Eligibility for Health Care, 77 AM. J. PUB. HEALTH 690, 692 (1987)).

(50.) Id. at 251-52.

(51.) Wheeler, supra note 2.

(52.) Id.

(53.) Brownell, supra note 28, at 302 (quoting Rennard Strickland, The Genocidal Premise in Native American Law and Policy: Exorcising Aboriginal Ghosts, 1 J. GENDER, RACE & JUST. 325, 330 (1998)).

(54.) See, e.g., id. at 309; Neath, supra note 32, at 704. However, no other ethnic group is eligible for an array of services comparable to that provided the Indians.

(55.) Wheeler, supra note 2.

(56.) CONST. OF THE CHEROKEE NATION, art. IV, [section] 1, available at http:// www.cherokee.org/TribalGovernment/CCCArchivePage.asp?ID=Constitution5. This is the final draft of a new constitution recommended and endorsed by the Cherokee Constitution Convention Commission in 1999.

(57.) Brownell, supra note 28, at 308.

(58.) Id.

(59.) Id.

(60.) Note, however, that when such criteria require that both parents be tribal members, these means can be extremely effective at restricting tribal membership--and may not be subject to the politics of blood quantum.

(61.) Also, to the extent that a federal trust relationship with Indian tribes continues to exist (in order to remedy past injustices and provide assistance to disadvantaged socioeconomic groups) it may make sense that any exclusionary definition has some sort of biological or racial link.

(62.) In making this semantic distinction, I acknowledge that many Indians do not recognize such a distinction, and may in fact tie their cultural identities to their legal ones. See supra note 52 and accompanying text.

(63.) Additionally, a functional definition of Indian ethnicity should not be objectionable to the group to which it will be applied, and should not be forced upon the group without its consent. Objections to genetic testing from Indian groups are considered in Part III, infra.

(64.) See generally Sandra Soo-Jin Lee, Joanna Mountain & Barbara Koenig, The Meanings of "Race" in the New Genomics: Implications for Health Disparities Research, 1 YALE J. HEALTH POL'Y L. & ETHICS 33 (2001) (discussing the effects of genetic research on modern conceptions of race and ethnicity).

(65.) Id. at 51 (footnote omitted).

(66.) Though estimates vary to some extent, this figure is widely cited throughout the literature. See, e.g., id. at 36 n.11.

(67.) Id. at 39; see also Steve Olson, The Genetic Archeology of Race, 287 ATLANTIC MONTHLY 69 (2001), available at http://www.theatlantic.com/issues/2001/04/olson.htm (last visited Sept. 15, 2003).

(68.) NEIL A. CAMPBELL & JANE B. REECE, BIOLOGY 257-59 (6th ed. 2002).

(69.) Id. at 443.

(70.) Henry Greely, Genetics and Identity [section] I.B (2002) (unpublished course description and background material, on file with author).

(71.) See CAMPBELL & REECE, supra note 68, at 234-45.

(72.) This overview intentionally oversimplifies the structural differences between the X and Y chromosomes. In fact, some portions of these chromosomes are similar and are known to recombine; others are dissimilar and will not. The apparently nonrecombining portion of the Y chromosome is known as the "Y-specific" portion. See Peter A. Underhill, Li Jin, Rachel Zemans, Peter J. Oefner & L. Luca Cavalli-Sforza, A Pre-Colombian Y Chromosome-Specific Transition and its Implications for Human Evolutionary History, 93 PROCEEDINGS OF THE NAT'L ACAD. OF SCI., Jan. 1996, at 196.

(73.) Antonio Torroni, L. D'Urbano, P. Lahermo, P. Moral, D. Sellitto, C. Rengo, P. Forster, M. Savontaus & B. Bonne-Tmair, mtDNA and Y-Chromosome Polymorphisms in Four Native American Populations from Southern Mexico, AM. J. HUM. GENETICS, Sept. 1994, at 303.

(74.) Underhill et al., supra note 72, at 197.

(75.) Id. at 196. Such a conclusion is in accord with traditional anthropological analysis, which suggests that indigenous American peoples migrated from Asia, probably across the Bering land bridge exposed during a period of glaciation. Douglas C. Wallace & Antonio Torroni, American Indian Prehistory as Written in the Mitochondrial DNA: A Review, HUM. BIOLOGY, June 1992, at 404.

(76.) Id.; see also Paul Recer, Genetic Marker of First Migrants, PLAIN DEALER (Cleveland), Jan. 14, 1996, at 5F. For a brief summary of identified Y-chromosome polymorphisms, see Torroni et al., supra note 73, at 303-04.

(77.) CAMPBELL & REECE, supra note 68, at 124.

(78.) Id at 284.

(79.) Wallace & Torroni, supra note 75, at 404-05.

(80.) Rebecca L. Cann, Mark Stoneking & Allan C. Wilson, Mitochondrial DNA and Human Evolution, NATURE, Jan. 1, 1987, at 31.

(81.) Id at 33.

(82.) Wallace & Torroni, supra note 75, at 405.

(83.) Id.; see also Cann et al., supra note 80, at 33.

(84.) Douglas C. Wallace, Katherine Garrison & William C. Knowler, Dramatic Founder Effects in Amerindian Mitochondrial DNAs, AM. J. PHYSICAL ANTHROPOLOGY, May 1985, at 149.

(85.) Torroni et al., supra note 73, at 315; see generally Wallace & Torroni, supra note 75.

(86.) Wallace & Torroni, supra note 75, at 409.

(87.) Id. at 406. In addition, 42% of South American Ticuna and 11% of Central American Mayans share this rare polymorphism. Id. at 407.

(88.) Mark D. Shriver, Michael W. Smith, Li Jin, Amy Marcini, Joshua M. Akey, Ranjan Deka & Robert E. Furell, Ethnic-Affiliation Estimation by Use of Population-Specific DNA Markers, AM. J. HUM. GENETICS, Apr. 1997, at 957.

(89.) Id at 962-63.

(90.) Id. at 963.

(91.) Charles H. Brenner, Difficulties in the Estimation of Ethnic Affiliation, AM. J. HUM. GENETICS, June 1998, at 1558 (critiquing the findings of Shriver et al., supra note 88).

(92.) Nokwisa Yona, DNA Validity and Capability in Ethnic Identification, THE ABOLITIONIST EXAMINER April/May 2001, at http://www.multiracial.com/abolitionist/word/ yona-parttwo.html (quoting Professor Henry T. Greely) (last visited Sept. 22, 2003).

(93.) The likelihood of a parallel mutation is greater in mtDNA than in the Y chromosome, since extranuclear DNA such as mtDNA tends to have a higher mutation rate than does nuclear DNA. See Antonio Torroni & Douglas Wallace, mtDNA Haplogroups in Native Americans, AM. J. HUM. GENETICS, May 1995, at 1234.

(94.) Id.

(95.) From the Internet website for GeneTree DNA Testing Center, at http:// www.genetree.com (last visited Sept. 15, 2003).

(96.) TallBear, supra note 3, at 2.

(97.) The bill reads: "The commissioner shall by rule establish standards and procedures for DNA-HLA testing to determine the identity of an individual as a Native American, at the request and the expense of the individual. The results of such testing shall be conclusive proof of the Native American ancestry of the individual." H. 809, 1999-2000 Leg. Sess. (Vt. 2000).

(98.) Sally Lehrman, Drawing DNA Lines of Ethnicity, GENELETTER, July 1, 2000, at http://www.geneletter.com/07-05-00/features/ethnicity.html (last visited Sept. 22, 2003).

(99.) Id.

(100.) In addition, since the DNA coding for HLA is located in a region of chromosome 6 that is highly variable but rarely recombines, DNA-HLA analysis has been used extensively for paternity testing--its variability makes it less likely that different people will share the same HLA genes, and its low recombination rate means HLA genes will be transmitted essentially unchanged from parent to child.

(101.) See discussion of variant analysis in Part II.A, supra.

(102.) Yona, supra note 92. Dr. Beatty is a founding board member of the National Marrow Donor Program (NMDP), which maintains the largest registry of potential bone marrow and stem cell donors worldwide. See NMDP's Internet website, at http:// www.marrow.com (last visited Sept. 22, 2003).

(103.) Lehrman, supra note 98.

(104.) Id.; see also TallBear, supra note 3, at 1.

(105.) Lehrman, supra note 98.

(106.) Id.

(107.) Kimberly TallBear, Racialising Tribal Identity and the Implications for Political and Cultural Development 7 (Feb. 20-22, 2001) (paper presented at the Indigenous Peoples and Racism Conference in Sydney, Australia) (on file with author).

(108.) H. 809, 1999-2000 Leg. Sess. (Vt. 2000).

(109.) Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978); see supra note 9 and accompanying text.

(110.) TallBear, supra note 3, at 2.

(111.) Nokwisa Yona, DNA Testing, Vermont H. 809, and the First Nations, THE ABOLITIONIST EXAMINER, April/May 2001, at http://www.multiracial.com/abolitionist/word/yona-partone.html (last visited Sept. 22, 2003).

(112.) TallBear, supra note 3, at 5. Indeed, TallBear suggests that Indian tribal politicians, preying on the technological distrust of their constituents, use their fears as a political platform, eschewing scientific advances in exchange for popular support: "Rather than evaluating which technologies ... might be consistent with tribal cultural and spiritual tenets and can be useful for accomplishing the ... goals of tribal communities, anti-technology and anti-scientific sentiment are significant political platforms for many Indian activists and politicians today." Id.

(113.) Nokwisa Yona, Genetic Classification of Race: A Lack of Class, THE ABOLITIONIST EXAMINER, April/May 2001, at http://www.multiracial.com/abolitionist/word/ yona-partthree.html (last visited Sept. 22, 2003).

(114.) Michelle Hibbert, Galileos or Grave Robbers? Science, the Native American Graves Protection and Repatriation Act, and the First Amendment, 23 AM. INDIAN L. REV. 425, 442 (1998/1999).

(115.) For a detailed chronology of the Kennewick Man controversy, see the Kennewick Man Visual Interpretive Center Internet website, at http://www.kennewick-man.com (last visited Sept. 22, 2003).

(116.) Renee M. Kosslak, The Native American Graves Protection and Repatriation Act: The Death Knell for Scientific Study?, 24 AM. INDIAN L. REV. 129, 131 (1999/2000).

Eric Beckenhauer, J.D. Candidate, Stanford Law School, 2004. B.S., with highest honors, University of California, Davis, 1998. Notes Editor, Stanford Law Review, Volume 56.
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