I’m sure all of you by now have heard or read something about the ridiculous situation involving Elizabeth Warren, who is currently running against Republican Scott Brown for the U.S. Senate seat in Massachusetts this November. It turns out, she has been claiming for almost two decades to be ethnically Native American, and that her racial background had been lifted up by Harvard Law as an example of faculty diversity. These claims, however, have been rapidly demonstrated to be dubious at best, and it was later reported that Warren’s race claims meet neither Harvard’s internal guidelines nor Federal reporting standards for racial minorities

What was her claim to this Cherokee heritage, you ask? Well, her mother told her so. Oh, and she does have high cheekbones. Also, a relative of hers wrote a cookbook titled Pow Wow Chow that Warren herself contributed recipes to – though it now appears that Warren may have plagiarized those recipes, to boot. The last piece of evidence, an 1894 marriage license that was purported to have Warren’s great-great-grandmother listed as a Cherokee, has actually served to harm her case rather than help: not only is the race of Warren’s great-great-grandmother NOT listed on the marriage license, but it also revealed that Warren’s great-great-grandfather rounded up Cherokees as a member of the Tennessee Militia in order to deport them westward on the Trail of Tears. (Hat tip to William Jacobson over at Legal Insurrection for that discovery.)

But some, despite this growing body of evidence, have still sought to defend Warren’s claims. The defense that has gained the most attention, arguably, is that of Bernie Quigley at The Hill. His blog post, titled “Elizabeth Warren’s True American Lineage” makes the claim that because Native Americans are a part of America’s spiritual and cultural roots, Warren is correct in mythical terms:

“In the heartland it is almost universal for those who have been there for a few generations to claim Indian blood; that is, to wish it were there even if it isn’t. It is not so much a lie as it is the acculturation of personal and regional American myth; the fabric of old-soul American consciousness.”

He continues on at great length, citing how Americans so often default to Native American imagery and cultural references when trying to get in touch with our heritage or define something in pure, unadulterated, and meaningful ways. His conclusion? That Warren shouldn’t back down, because “Warren in that regard brings a fresh, classical Americanism from the heartland back to us in Boston where we still have tendencies [toward Europeanism]… We are lucky to have Warren among us. She adds stock and substance.”

I was stunned by Quigley’s response, because it completely missed the point of the whole debate. The problem wasn’t that Warren had wished heritage where there was none, it was that she likely used that false heritage to advance her career by being a “minority professor” and gaming the affirmative action system. His response both affirms Warren’s “wish” for heritage as authentically American and completely evades the legal and moral problems at hand.

However, there is a second reason why Quigley’s response was so shocking. In trying to claim that it is just fine for Warren to claim Native American heritage because doing so is “correct in mythical terms” and is therefore justifiable, he mythologizes those Native American peoples that still live in this country.

Yes, in case you weren’t aware, Native Americans still live on. Sometimes, they live in fairly horrible situations on government reservations that give the tribes a great deal in the way of medical, educational, and monetary benefits. Because of these government benefits, tribes have a very big stake in who is defined as “in” and who is not. David Treuer, an Ojibwe Indian and author, mentions this in his semi-defense of Warren titled “Elizabeth Warren says she’s Native American. So she is.

Treuer openly states in his piece that Warren likely claimed Cherokee heritage to press an advantage in the workplace, a practice he does not seem to take issue with. But Treuer does take issue with the notion that this claim somehow means American society has become more pluralistic.

“An Indian identity has become a commodity, though not one that is openly traded. It has real value in only a few places; the academy is one of them. And like most commodities, it is largely controlled by the elite. In the 19th century, the U.S. government, Indian agents and even commercial barons had power over who was and who wasn’t identified as Indian.

… Those with power and those in power controlled who could be classified as Indian and how strongly so…

I worry that the same kind of injustice goes on today, but in a different register. Being Indian now is positive. Not everywhere, not all the time — but it is certainly of value in places like Harvard. And just as in the bad old days, what being Indian means is largely decided by powerful people in powerful institutions.”

Gaming for power or benefits by using race is indeed the name of the affirmative action game. And it is that game that Quigley’s defense of Warren can never play.

First of all, Quigley is partially correct by saying that the Native American legacy has strong mythological power. We do tend to romanticize our images of Native American life and culture, and have even whitewashed those images that don’t conform to our own personal likes or dislikes. Secondly, however, that mythological power is problematic because it is bound up in the identity of people who actually still exist. Quigley’s approach places that mythological power into the hands of “those with power and those in power” as Treuer put it, and would allow everyone except the Native Americans themselves to determine what or who is actually Native American.

Don’t get me wrong: I like the idealism of Quigley’s world. It is one in which people can define themselves however they want. One of America’s core components is the ability to craft the life that one chooses, identity and all, and Quigley embraces this in his defense of Elizabeth Warren. Heck, I agree that we should all have the option of making our lives into whatever we choose. So if I wanted to connect with Native American culture, I could put in the effort to do so by reading, studying, participating in events, collecting pieces of material culture, participating in ceremonies, building relationships with people who are in the community, and more. Maybe I would even be accepted as an honorary member of at tribe – if the tribe itself approved.  They control who is in or out, not me.

But that’s as far as that thought exercise can go.  Racial identifications like those used in affirmative action programs can’t be abridged by the path I just described. Either you are born into a family of XYZ racial background, or you are not. If so, you get benefits under affirmative action. If not, too bad. The cultural identity Quigley is attempting to defend can never serve as a substitute for the actual racial identity that confers these benefits.

Elizabeth Warren may have genuinely believed she was a Cherokee. But as the investigation has proved, that claim is likely false. And unless some great game-changing revelation comes forth, she likely will never meet the eligibility requirements for Cherokee membership and thereby cannot ethically continue to claim minority status at Harvard or any other professional or academic institution. Warren, if she truly wants to be Cherokee in a mythical sense, has every option available to her to reconnect with the tribe and its heritage – though it appears she has not attempted to do so before – and craft that as an important aspect of her identity. But her personal identity will never ever change her biology, and therein lies the rub.

Quigley’s defense of Warren is heartfelt, compassionate, and rings as distinctly American. Unfortunately, it runs completely afoul of actual racial politics in this country that rely on verifiable ethnic or racial origins to function. It is also somewhat demonstrative of the inherent contradiction found in many liberal political circles that on the one hand claim to reach toward a “higher truth” while simultaneously upholding systems of racial profiling and identity politics.

David Giffin : Emory University : @D_Giffin