American Indians and the Box Checker Phenomenon

By Lawrence R. Baca
Former President, National Native American Bar Association Who is Native American? When those who knowingly are not claim to be Native American to enhance their applications to college and law school, what, if anything can or should be done? Whose responsibility is it to address the falsification and what should the ramifications be? Does it matter? Bacas analysis suggests that the problem may be far more widespread than might be imagined. In 1953, the year before Brown v. Board of Education, 347 U.S. 483 (1954), the great scholar and grandfather of federal Indian law, Felix S. Cohen, wrote: It is a pity that so many Americans today think of the Indian as a romantic or comic figure in American History without contemporary significance. In fact, the Indian plays much the same role in our American society that the Jews played in Germany. Like the miners canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith. What Cohen wrote in 1953 is still true today. American Indians are different than any other racial or ethnic minority group in America, and are treated differently. Native peoples in America remain the open wound in the psyche of America. The land on which the 48 connected states and Alaska rest was Indian land first. America has not come to grips with what it did to American Indians to acquire that land nor the residual effects of what it did on Indians today. A difference between AfricanAmericans and Indians is that one is a group of people taken from their home and their culture, the other is a group who had their home and their culture taken from them. At a time when AfricanAmericans were kept in an apartheid of segregation, American Indians were being forced by federal policies into a dichotomous role: being compelled into becoming white men in reddish-brown skins and yet held at bay by the same racial prohibitions that confronted African-Americans. American Indians are less than 2.0% of the national population. We have the least voting influence of any racial group in America and we are the easiest to be overlooked in the racial diversity discourse. While we have many diversity issues in common with other racial and ethnic minorities, there is one diversity issue in higher education that is ours and ours alone. For affirmative action purposes we are the race non-minorities are more likely to claim they are. Non-minorities may lie about their race to get admitted to college and law school and the race they are most likely to choose to lie about being is American Indian. As a matter of law, American Indians are different. American Indians are the only race of people mentioned in the Constitution by race (see Article I, Section 8, Claus 2 and Article I, Section 2, Paragraph 3). Title 25 of the United States Code is Indians. No other racial group in America has their own title to the United States Code. American Indians are both a racial group for all of the protections of the civil rights laws and a political group to encompass the special relationship between the federal government and federally recognized tribes. Indian tribes have lands. There is no other land-based
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racial or ethnic minority group in America. Indian tribes have governments with powers over their lands and their members. The governments of Indian tribes are recognized in the federal constitution but were not created by the Constitution. Those governments are sovereigns with power over their people and their reservations. The powers of Indian tribes are from inherent sovereignty, not powers created or delegated by the United States. Tribes have a government-to-government relationship with the national government. Tribes have treaties with the federal government. Indian treaties with the United States are the equal of treaties with foreign nations. These factors separate Indians from any other racial or ethnic minority group in America in defining their relationship to the federal government. The relationship between American Indians and the United States has always been sui generis. As a result, we find ourselves in federal court more often than any other racial group and yet there are today no sitting federal judges who are American Indian. While cases involving federal Indian law get to the Supreme Court at a rate higher than any other unique area of law there has never been an American Indian justice on that court. In fact, no Supreme Court Justice has even hired a single American Indian clerk.

The governments of Indian tribes are recognized in the federal constitution but were not created by the Constitution. Those governments are sovereigns with power over their people and their reservations. The powers of Indian tribes are from inherent sovereignty, not powers created or delegated by the United States. Tribes have a government-to-government relationship with the national government. Tribes have treaties with the federal government. Indian treaties with the United States are the equal of treaties with foreign nations. These factors separate Indians from any other racial or ethnic minority group in America in defining their relationship to the federal government.
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When I say Box Checker, Im talking about students who have absolutely no belief that they have Indian heritage but check the Native American box on the application because they believe that someone else is getting a break that they dont deserve.
There are two aspects to the phenomenon of non-Indians claiming to be Indians, a social aspect and a diversity aspect. The well-known and respected American Indian, Vine Deloria Jr., in his book Custer Died For Your Sins (New York: Macmillan Publishing Company, 1969), commented on meeting hundreds of people whom he believed to be White but who were anxious to tell him of their Indian heritage. He wrote of a common phenomenon in that the overwhelming majority of people who claimed to be Indian said they were Cherokee and their ancestor was always a princess. He expressed concern that three generations back there were no Indian men among the Cherokee. Every Indian I know is familiar with this phenomenon: you are at a social function, you might be wearing Indian jewelry, and someone approaches; they appear Anglo and they ask, Youre Indian, right? Im part Cherokee. My great-grandmother was a Cherokee princess. This is not something that happens to any other racial or ethnic minority group. Ive asked many of my professional minority friends. No African-American person has ever had someone who looked White come up to them at a social function and say, Youre Black, right? Im part Black. My grandmother was a Waziri princess. It simply doesnt happen, nor does it happen to Hispanic or Asian individuals. The same thing is true in college and law school applications. At colleges and universities there is no American Indian student group that doesnt have a running debate with the admissions office about how many Native students are actually on campus. We always get numbers from the admissions office that do not comport with the realities of who we see on campus. With respect to college and graduate school admissions we call them Wannabes, Clorox Indians or Box Checkers. Let me be very clear. Im not talking about someone who is mixed race and whose Indian ancestor is pretty far removed. Im not talking about someone who genuinely believes that he or she has some Indian ancestry no matter how far back. When I say Box Checker, Im talking about students who have absolutely no belief that they have Indian heritage but check the Native American box on the application because they believe that someone else is getting a break that they dont deserve. In 1968, when I started college at the University of California, San Diego (UCSD) I ran into another Indian student in the cafeteria. This was at the time when there was a rise in student activist groups. In the late 1960s there was for the first time a critical mass of students of color on campuses to start race-and ethnicity-based student organizations. And, before those pesky student right to privacy laws were passed, schools would give the minority student organizations information about who checked the race box for your group so you could contact them. The theory was that the incoming minority students would want to meet the other members of their race or ethnicity at the school. So my newfound friend and I asked the admissions office at UCSD for a list of all of the other Indian students and they gave it to us. There were twenty-six names on the list. When we visited each of them to say we were starting an Indian student organization, twenty-one told us they really werent
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Indian. They had checked the box by accident or as a joke or because they thought they might maybe have an Indian ancestor but really didnt think of themselves personally as an Indian. Eighty percent of the Indian students on campus werent really Indians. If there is a purpose served by having a diverse student body in college or law school, faux Indians do not serve that purpose. While I have a great anecdotal tale from 40 years ago, can I prove the existence of the Box Checker phenomenon today? For law schools, I think I can. I am going to use law school and Census statistics as my example to prove that the Box Checker exists. Im going to compare law school graduation rates by race with the growth of lawyers by race as shown by the United States Bureau of the Census. It isnt an exact science, but it will give you a shocking picture that I think makes my case. Lets look at the numbers. The Census reports showed 1,502 American Indian lawyers in 1990.1 That number increases to 1,730 for the 2000 Census.2 That is an increase in American Indian lawyers of only 228 in ten years. That is an over-all growth of 15%. What makes the +228 most interesting is when you compare it to graduation statistics. A few years ago the American Bar Association (ABA) printed dis-aggregated statistics of JDs granted by race for all accredited law schools in America. According to those reports, between 1990 and 2000, ABA-accredited law schools reported giving JDs to 2,497 American Indians.3 Let me repeat, Indian lawyers increased by 228 between 1990 and 2000 while law schools reported graduating 2,497 American Indian students. Using these numbers I have created what I call the graduation-to-growth rate. When you divide the number of new lawyers by the number of reported graduates you get a ratio that allows cross-race comparisons. For American Indians, the ratio of new lawyers to reported law graduates is 9.13%. Certainly, you cant just take the two numbers from 1990 and 2000 and subtract one from the other. Some of the 1,502 Indians who told the Census Bureau that they were lawyers in 1990 werent still lawyers in 2000. Some changed jobs, some joined their ancestors, some simply retired. But, we can look at the numbers for other racial and ethnic minority races for whom these things should also be true and see how American Indians compare. The chart below shows Census numbers for lawyers by race from 1990 and 2000. Column four is the total growth in the number of lawyers by race. Percentage growth is simply the percentage that total growth represents compared to the previous census report. Total graduates represents the total number of JDs granted by race of ABA accredited law schools as reported to the ABA. Finally, if you divide the total growth by the total graduates you get the graduates-to-growth rate for African Americans, Asian Americans, Hispanic Americans, White Americans and American Indians. Group 1990 2000 Total Growth Percentage Growth 8,195 9,440 10,018 96,050 228 31.9% 88.1% 53.8% 13.91% 15.17% Total Graduates Graduates To Growth Rate 31.26% 51.37% 52.58% 29.17% 9.13%

Af. Am. As. Am. Hisp. Am. White Am. Am. Ind.

25,670 10,720 18,612 747,077 1,502

33,865 20,160 28,630 871,115 1,730

26,215 18,376 19,051 329,216 2,497

1. Elizabeth Chambliss, Miles to Go 2000: Progress of Minorities in the Legal Profession, A.B.A. Commn on Racial and Ethnic Diversity in the Profession (2000). 2. Statistics about Minorities in the Profession from the Census, A.B.A. Commn on Racial & Ethnic Diversity in the Profession, www.abanet.org/minorities/links/2000census.html. 3. Minority Degrees Awarded (by ethnic group), A.B.A., www.abanet.org/legaled/statistics/mindegrees.html.

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For American Indians the graduates-to-growth rate is one-third that of the lowest of all other groups. It is one-fifth that of Hispanics and Asians. If every Indian lawyer who was in practice in 1990 vanished by 2000 and only 80% of the Indians who received JDs passed the bar by the year 2000 there would have been 1,998 American Indian lawyers. There were 1,730. If our graduates-to-growth rate was the same as Whites, there would have been 2,231 Indian lawyers. If we had the growth rate of Hispanics, there would have been 2,815 American Indian lawyers, or 61.5% more than we had in the year 2000. How do we explain these numbers, and where do Indians fit in? The African-American lawyer graduates-to-growth rate compares pretty closely to White lawyers. I think the answer is in their ages within the profession. The African American bar is much closer to the White bar as a whole than any of the other minority groups in terms of the age of its members, so death and retirement have a comparable effect on the graduates-to-growth rate. The ages of the Hispanic and Asian bar members are much younger. The Native American bar is much closer in age to the Hispanic and Asian bars, so by age the American Indian graduates-to-growth rate should, in fact, be much closer to the numbers of younger bars. The American Indian disparity between the numbers of graduates and the number of practicing lawyers cannot be explained away by death, retirement and bar passage rate. It can only be explained by my assertion that half of all the Indian law students nationally arent actually Indians - they are box checkers. Of course, if you look at the statistics closely, I could be wrong. It might be that 65% of all those law students who claim to be Indian are not Indian. Diversity in the practice of law is imperative; in Grutter v Bollinger, 539 U.S. 306 (2003), the Supreme Court said so. If we dont have diversity in our law school student populations today, we cannot have diversity in our judiciary tomorrow. With respect to American Indians - the time for law schools to act was yesterday. If a student is willing to lie about race to get into law school, what will that individual be willing to lie about as a practicing attorney? Checking the wrong box is simply the first ethical violation of that persons career as an attorney. Law schools should care about that too. n

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