(Relevant segment begins at about the 1:35 mark of video)

“[Elizabeth Warren] checked the box. She had an opportunity, actually, to make a decision throughout her career. When she applied to Penn and Harvard, she checked the box claiming she was Native American, and, you know, clearly she’s not.”

— Sen. Scott Brown (R-Mass.) during televised debate with Democratic opponent Elizabeth Warren, Sept. 20, 2012

Sen. Scott Brown (R-Mass.) has focused his campaign’s attention back on the self-proclaimed Native American heritage of his Democratic challenger, Harvard Law School professor Elizabeth Warren, who listed herself as a minority in professional directories commonly used by recruiters.

The controversy had faded in recent months while Brown maintained a steady lead in the polls. But Warren overtook the Republican incumbent in more recent polls after delivering a high-profile speech at the Democratic National Convention this month.

Brown brought Warren’s lineage back into the spotlight with his remarks during a debate last week and with an ad that uses old news accounts instead of his own words to renew skepticism about his opponent’s ancestral claims — cleverly avoiding direct accusations. Warren responded with an ad of her own, saying: “Scott Brown can continue attacking my family, but I’m going to keep fighting for yours.”

Scott Brown attack ad

Elizabeth Warren response ad

Brown has used this issue to call the Democratic candidate’s character into question. Let’s review what is known about Warren’s heritage to determine what to make of the senator’s assertion that she “checked the box” when she “applied” to the University of Pennsylvania and Harvard. This is a complex subject, so we will explore it with separate sections on Warren’s lineage, the stories from her family, her job qualifications and her listing in the professional directories.

The Facts

Warren’s Lineage

Warren has claimed Cherokee and Delaware Indian heritage, but the only proof so far seems to be stories she says she heard from family members as a child. Cherokee groups have demanded documentation of the candidate’s Native American ancestry, but she hasn’t delivered.

The New England Historic Genealogical Society found a family newsletter that alluded to a marriage-license application supposedly listing Warren’s great-great-great grandmother as part Cherokee.

The Boston Globe misreported this information, saying that the genealogical society had found the marriage license itself and debunked the notion that Warren lied about her lineage. The paper later acknowledged its mistake in a correction notice.

The author of the family newsletter said she didn’t have documentation of the marriage-license application and she doesn’t know who sent her the reference.

(Indian Country Today Media Network has posted the family newsletter on its Web site).

The New England genealogical society clarified in a statement that it has found no proof of Warren’s self-proclaimed Native American lineage. The group also told The Globe that the candidate’s family is not listed in an early-20th century census of major tribes, known as the Dawes Rolls.

An article in Atlantic magazine pointed out that Warren “would not be eligible to become a member of any of the three federally recognized Cherokee tribes based on the evidence so far surfaced by independent genealogists about her ancestry.” That’s because her Cherokee ancestors, if she has any, would either be too distant or they never documented their ties in ways that meet the tribes’ requirements.

Obviously, this doesn’t preclude Warren from having traces of Native American heritage.

Family Tales

What about the stories that Warren claims to have heard from her family? The Globe interviewed an extensive list of the professor’s relatives, who had conflicting memories. Some recalled stories of Indian ancestors, others did not.

One second cousin told the Globe that her grandmother had said that her father — one of Warren’s relatives — was part Delaware Indian. But the cousin’s mother, who did not approve of Native Americans, had always denied that claim, according to the Globe.

Warren’s siblings have all backed up the candidate’s statements. One brother told the Globe that his grandparents explained to him, after much pleading to get answers as a child, that “your grandfather is part Delaware, a little bitty bit, way back, and your grandmother is part Cherokee,” according to the Globe.

But the Globe also noted that some of Warren’s cousins “say they know nothing of Native American blood in the family.”

Warren explained how she learned about her Indian lineage for a profile in The New Yorker. The professor-turned-politician said her parents had eloped, and she had always wondered why. Over the years, she said, the story emerged that “my parents were very much in love, they wanted to get married, and my father’s mother and father said, ‘No. You cannot marry her, because she is part Cherokee and part Delaware.’”

Undocumented claims of Native American ancestry, especially those based on family lore, are not uncommon in this country. That’s especially true in places like Oklahoma, which ranks second in the U.S. in number of Native American residents and third in percentage of population of that descent, according to U.S. Census data.

Warren contributed recipes to a Native American cookbook called “Pow Wow Chow,” published in 1984 by the Five Civilized Tribes Museum in Muskogee, Okla. She signed her entries “Elizabeth Warren -- Cherokee.”

Warren’s Resume

Warren taught at the following law schools:

Rutgers University: 1977-1978

University of Houston: 1978-1983

University of Texas (Austin): 1981-1987

University of Pennsylvania: 1987-1992, 1993-1995

Harvard University: 1992-1993, 1995-present

A Boston Globe profile of the Democratic candidate’s teaching career noted that her “law degree from Rutgers University made her the only tenured Harvard Law School professor trained at an American public law school.”

Regardless of whether Warren’s self-proclaimed Native American background helped her win coveted jobs with UPenn and Harvard, she had some notable accomplishments going for her. For example, she did groundbreaking research while teaching at the University of Texas at Austin School of Law on how the nation’s bankruptcy code was affecting average families.

Warren and two colleagues studied court records to determine who was filing for bankruptcy and why. They found that single catastrophic events -- such as medical problems or unemployment -- rather than dereliction often caused working-class families to renege on debt.

This work put Warren at the cutting edge of a new school of legal thought that emphasized real impacts on people’s lives rather than mere theory. It also led to her first book, “As We Forgive Our Debtors,” which won the American Bar Association’s Silver Gavel Award after it was published in 1989.

Warren went on to write bankruptcy- related articles for The Yale Law Journal in 1992, and Michigan Law Review in 1993. She didn’t write another book until 2000, five years after she started working at Harvard and 11 years after her first book.

After Warren began teaching at Harvard, she served on a commission that helped overhaul the federal bankruptcy laws in 1997. Senate Majority Leader Harry Reid (D-Nev.) also appointed her in 2008 to chair a Congressional panel that oversaw the bank bailouts.

Professional Directories

The Boston Herald reported in April that Warren had listed herself as a minority in the American Association of Law Schools directory and that Harvard Law School had touted her supposed lineage when the program faced doubts about faculty diversity.

Critics pounced on the news, suggesting Warren had feigned Native American ancestry to enhance her teaching prospects.

The Democratic candidate stumbled early on in reacting to this controversy. At one point, Warren cited remarks that her aunt Bea made about high cheekbones in the family as evidence of her indigenous ancestry. She said she listed herself as a minority in the professional listings merely to connect with “people like me,” noting that it was “not a particularly good use for the directory, because it never happened.”

The American Association of Law Schools directory doesn’t specify which professors are Native American, but instead clumps all the “minority law teachers” together in a distinct section. As such, it’s no surprise that Warren didn’t connect with American Indians through the listing — they wouldn’t have known she was one of them.

Warren first listed herself as a minority in the Association of American Law Schools Directory of Faculty in 1986, the year before she joined the faculty of the University of Pennsylvania Law School. She continued to list herself as a minority until 1995, the year she accepted a tenured position at Harvard Law School.

The former chairman of the American Association of Law Schools, David Bernstein, told the Herald that the group’s directory once served as a tip sheet for administrators. “In the old days before the Internet, you’d pull out the AALS directory and look up people,” he said. “There are schools that, if they were looking for a minority faculty member, would go to that list and might say, ‘I didn’t know Elizabeth Warren was a minority.’”

Warren said she didn’t know Harvard had used her heritage as proof of diversity until reading about the issue in the news, according to a Herald report. She also denied that she ever tried to gain a professional advantage through her lineage.

Warren also says that she was recruited for these positions — she did not “apply” for them, as Brown asserts.

The Globe obtained a portion of Warren’s application to Rutgers, which asks if prospective students want to apply for admission under the school’s Program for Minority Group Students. Warren answered “no.”

For her employment documents at the University of Texas, Warren indicated that she was “white.”

But Penn’s 2005 Minority Equity Report identified her as the recipient of a 1994 faculty award, listing her name in bold to signify that she was a minority.

The Herald has twice quoted Charles Fried, the head of the Harvard appointing committee that recommended Warren for her position in 1995, saying that the Democratic candidate’s heritage didn’t come up during the course of her hiring. “It simply played no role in the appointments process,” he said. “It was not mentioned and I didn’t mention it to the faculty.”

The Herald later quoted Fried, a former U.S. Solicitor General under President Ronald Reagan, saying, “I can state categorically that the subject of her Native American ancestry never once was mentioned.”

Harvard Law School at the time was embroiled in a fierce debate over lack of faculty diversity. African American law professor Derrick Bell took a two-year leave of absence to protest the program’s hiring policies, students held frequent demonstrations over the same cause and the Massachusetts Commission Against Discrimination had filed a probable cause finding against the school for denying tenure to Clare Dalton, a liberal instructor.

But several news accounts during that period identified Fried as a conservative faculty member who downplayed the need for change. The Globe described him in April 1992 as an “outspoken defender of the beleaguered faculty appointments committee.”

Nonetheless, Fried showed signs of acquiescing around the time that he joined the faculty appointments committee. The Harvard Law Record asked him in a 1992 Q&A, “How aggressively is the appointments committee pursuing women and minority faculty members?” Fried replied, “Very.”

When asked by the Record whether he believed in affirmative action, Fried replied, “Yes.”

Harvard hired Warren for a temporary position in 1992, and the law school reported a Native American woman on its federally mandated affirmative-action report. The program did not report a Native American woman for 1993 through 1995, during which time Warren was back at Penn — she had spurned Harvard’s initial offer of a tenured position, according to a Globe report.

Warren finally accepted a tenured teaching job at Harvard in 1995. An announcement of the professor’s hire that year in the Harvard Crimson did not mention her lineage or say that she was the law school’s first Native American faculty member.

Warren has said that she provided information about her purported Native American background to the universities after she was hired, saying it “came up in lunch conversation.” The campaign declined to tell the Globe whether the Democratic candidate provided information about her lineage to Harvard and Penn verbally or by checking a box on a form.

The federal Equal Employment Opportunity Commission defines “American Indian or Alaska Native” employees as those “having origins in any of the original peoples of North and South America (including Central America), and who maintain cultural identification through tribal affiliation or community recognition.” A Globe article confirmed that Harvard relied on this standard for its 1992-1993 and 1995-1996 federal affirmative-action reports, for which the school listed a Native American woman -- widely believed to be Warren.

The operative word here is “and.” Warren would not qualify as a Native American under these guidelines because she does not meet the second requirement: Official affiliation with a tribe or community.

The Brown campaign provided the following statement to The Fact Checker: “Elizabeth Warren refuses to release her personnel files, which would offer even more revealing information about her employment status. I think people can reasonably conclude she has something to hide.”

The Pinocchio Test

Brown said that Warren “checked the box claiming she was Native American” when she applied to Harvard and Penn, suggesting the Democratic candidate somehow gained an unfair advantage because of an iffy ethnic background. But there is no proof that she ever marked a form to tell the schools about her heritage, nor is there any public evidence that the universities knew about her lineage before hiring her.

The senator’s debate comments also suggest Warren actively applied for positions with Harvard and Penn, but the evidence suggests the schools recruited her because of her groundbreaking research and writings on bankruptcy. Harvard, in fact, did not give up on her after she first turned down a tenured position with the university.

Some might assume that Warren listed herself as a minority in the law school directories to attract offers from top schools, which would be a pro-active measure. The explanation that she was reaching out to other Native Americans — when she was merely listed as a “minority” — certainly appears suspicious, but there is no conclusive evidence that she used her status in the listing to land a job.

But Warren appears to have been well-qualified for the teaching positions and excelled once she was hired.

The Fact Checker expects accusers to satisfy the burden of proof for their charges. That was the case when Sen. Harry Reid (D-Nev.) said that GOP presidential nominee Mitt Romney tried to avoid taxes with offshore accounts. We awarded four Pinocchios to Reid because the senator lacked conclusive evidence — or much evidence at all, for that matter. We’ve also knocked the Obama campaign repeatedly for jumping to unwarranted conclusions about Mitt Romney’s record at Bain Capital.

The outstanding questions about Warren’s directory listing — and her relying on family lore rather than official documentation to make an ethnic claim — certainly raise serious concerns about Warren’s judgment. But in the debate, the Republican incumbent conflated conjecture and sketchy information to make a claim not supported by the available evidence, and so he earns Two Pinocchios.

Two Pinocchios

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