Methods of genetic kinship testing
36.43 Although current scientific knowledge holds that there is no genetic basis for race, there are several forms of genetic kinship testing that might be used to establish that one person is related to a living person who is recognised as belonging to a particular family or group; or that a person is descended from a deceased person who was recognised as belonging to such a family or group.
36.44 The most common form of genetic kinship testing between two living persons involves the comparison of both individuals’ DNA profiles (and potentially those of other putative relatives, as well). These profiles comprise a set of numbers representing the number of short tandem repeats at different loci along a person’s DNA molecule. If the profiles are sufficiently similar, a forensic scientist may report a probability that the persons are biologically related.
36.45 Two main techniques are currently used in identifying genetic ancestry: mapping polymorphisms on the Y chromosome to trace paternal ancestry, and on mitochondrial DNA (mtDNA) to trace maternal ancestry. The former technique identifies biological relationships between a father and son, while the latter identifies biological relationships between a mother and her male and female children.
36.46 Using these techniques, some laboratories are marketing genetic tests that purport to identify Jewish ancestry, Native American ancestry, ‘Viking markers’, and even a genetic connection to the so-called ‘Daughters of Eve’. Genetic testing is now also available commercially which purports to help black people in America, England and the Caribbean trace their lineage back to the parts of Africa from which their ancestors originated.
36.47 Dr Martin Richards, a researcher in human evolutionary genetics, has cautioned against investing any spiritual significance in the ‘not very meaningful DNA sequences’ that emerge from such testing, pointing out that:
Studies of human genetic diversity have barely begun. Yet the fashion for genetic ancestry testing is booming. … Buoyed by the hype, the private sector has been moving in. … By tracking the history of genes back through time, geneticists can try to reconstruct the migrations and expansions of the human species. They have no special insight into ethnicity and identity.
36.48 Apart from such fads, there have been a number of circumstances in recent times in which serious consideration has been given to the role (if any) of genetics and genetic testing in determining racial or ethnic identity. The website of the University of Minnesota’s Center for Bioethics contains useful case studies and discussion of the issues in this area.
36.49 The Center for Bioethics notes that, to date, there ‘are no reports of American Indian tribes requiring or relying on DNA testing for membership’. However, in February 2000, a Bill was introduced into the Vermont state legislature, which proposed that the State Commissioner of Health should establish standards and procedures for DNA-HLA testing to certify that an individual had Native American ancestry. The Bill failed to become law and has not been reintroduced—after provoking a strong negative reaction to the prospect of using genetic testing to determine racial or ethnic heritage, both as a matter of scientific validity and public policy.
36.50 There has also been controversy in the United States over the identity of the so-called ‘Black Seminoles’. The Seminoles are an established Native American tribe originating in what is now the southern part of the United States. Over a period of about 200 years, significant numbers of fleeing black slaves found refuge among the Seminoles. In the aftermath of the American Civil War, the Seminoles in Oklahoma signed a treaty with the United States government under which ‘Blood Seminoles’ and ‘Black Seminoles’ were accorded equal rights. However, in July 2000, the Seminole Nation of Oklahoma passed a resolution to amend their tribal membership criteria to require possession of ‘one-eighth Seminole Indian blood’—in effect, expelling many of the Black Seminoles (also known as ‘Freedmen’) from the tribe. The Center for Bioethics’ commentary notes that:
At a time when using genetics to prove identity is becoming more and more common, the Freedmen are an interesting case primarily because genetics has traditionally taken a back seat in the construction of their ‘Indian-ness’. Their membership of an American Indian tribe has for generations been based on a shared history, rather than on shared Indian genetics. However, the Freedmen’s membership of the Nation is now under threat as the tribe moves over to an identity system that places genetics above history, that values blood quantum over contribution to tribal affairs.
36.51 In Canada, there has been controversy over indigenous membership rules in Kahnawake, a large Mohawk community near Montreal. In 1981, the membership rules were changed to require ‘at least 50 per cent Mohawk blood’—and some residents were then told they could no longer have jobs or homes on the reserve even though their families had lived there for generations. After considerable community disputation and the commencement of some litigation, the community announced in March 2003 that it intended to change the membership rules so that while Mohawk lineage would remain a key factor, other criteria would include residency and the commitment to learn the Mohawk language. Professor Taiaiake Alfred, an adviser to the band council on this issue, noted that the ‘50% blood rule’ rule had been prompted by the Canadian Indian Act, which introduced the idea that a bureaucratic ruling could be made about who is, and who isn’t an Indian. Professor Alfred commented that:
The Indian Act took away the fundamental rights of native people in Canada to define who they are. There is no justification outside of colonial control to have one group of people telling another group of people who they are.
The object of this [new] law is to get away from the notion of blood quantum. We moved back to the traditional conception of what it means to be a Mohawk, cultural factors and community integration, as opposed to strict genetic determination.
36.52 There also have been a number of cases in which particular African communities—such as the Falashas of Ethiopia, the Abayudaya of Uganda, and the Lemba of Southern Africa—have asserted a Jewish religious identity, based upon ancient oral traditions, or the presence of certain genetic markers said to be associated with persons of Jewish heritage, or both. In the case of the Lemba, a recent Y-chromosome study found evidence of Semitic origins, although it was not clear whether this involved Jewish or Arabic ancestry, or a mixture of the two. However, the study found that the Lemba carry a particular genetic marker (the Cohen modal haplotype or CMH) at a frequency similar to that found in Jewish populations, although this marker was not found among neighbouring African tribes. Apart from any desire to gain broader acknowledgment of their deeply-held religious identity and heritage, recognition of their status as Jews also has potentially significant legal consequences, in so far as the State of Israel’s Law of Return 1950 grants every Jew the right to migrate to Israel and to acquire citizenship automatically.
36.53 Elliott and Brodwin have attempted to put genetic ancestry testing into context, noting that:
clearly confusion looms when genetic markers conflict with other kinds of markers of group membership, such as a shared culture or historical narrative. Does it make you more English, or Sioux, or [a relative of Thomas] Jefferson if your identity has been corroborated by a genetic marker? …
Many observers worry that this new genetic information will be given too much authority in deciding questions about identity. Media accounts have often treated tracing of genetic ancestry as the final answer to extremely controversial questions—as if genetic tests had authoritatively settled the question of whether the Lemba are really Jewish or the question of from what African tribe can an individual African-American legitimately claim descent.
36.54 Brodwin has pointed out that, whatever the emerging scientific knowledge of population genetics, the use of such genetic information will often have a sharp political edge:
For example, tracing your ancestry—via a pattern of particular alleles, or mutations on the Y chromosome or in mitochondrial DNA—has become not just a laboratory technique, but a political act. Who in our society requests this sort of DNA analysis, and who provides it? Once people learn the results, who controls what those results mean? It is no longer just geneticists and population biologists, but also political activists, individuals claiming inclusion in a particular ethnic, racial, or national group, and those who must decide to accept or reject their claims.
To interpret the results of research with genetic markers means not just judging whether the laboratory used the right population-specific allele or had a large enough sample size. It also involves judging the worth of genetic knowledge against other kinds of claims to authentic identity and group membership (oral history, written documentation, cultural practices, inner convictions). What is at stake in genetically-based claims of identity or rightful belonging is not just good or bad science. What is at stake is also personal esteem and self-worth, group cohesion, access to resources, and the redressing of historical injustice.
36.55 Similarly, Professor Tudor Parfitt, who conducted the Lemba study, has noted that perceptions of genetic research may substantially influence aspects of group self-identity. This has the potential to cut both ways by providing
ammunition both for conservative forces in the preservation of their prejudices and for liberal groups who seek the elimination of differences among peoples.
 See Ch 35 for more detail.
 C Elliott and P Brodwin, ‘Identity and Genetic Ancestry Testing’ (2002) 325 British Medical Journal 1469.
 Ibid. See also N Wade, ‘In DNA, New Clues to Jewish Roots’, New York Times, 14 May 2002; M Thomas and others, ‘Origins of Old Testament Priests’ (1998) 394 Nature 138.
 Prompted by BBC2’s five-part documentary series ‘Blood of the Vikings’, first screened in November 2001. See also J Richards, Blood of the Vikings (2001) Hodder & Stoughton General, London.
 See B Sykes, The Seven Daughters of Eve: The Science That Reveals Our Genetic Ancestry (2001) WW Norton & Company, New York. Sykes, a professor of genetics at Oxford University, used mtDNA analysis, archaeological and climatic records, and other sources to develop the proposal that nearly all modern Europeans are descendants of one of seven ‘clan mothers’—or ‘the Seven Daughters of Eve’—who lived 10,000–50,000 years ago. Sykes identifies 33 ‘Daughters of Eve’ worldwide. See S Wells, The Journey of Man: A Genetic Odyssey (2003) Princeton University Press, for the male version of this research, utilising Y chromosome analysis.
 C Elliott and P Brodwin, ‘Identity and Genetic Ancestry Testing’ (2002) 325 British Medical Journal 1469. John Presser’s submission noted that mtDNA analysis has been used to reunite the ‘stolen’ children of Argentina with their grandparents, and has been used by the United States’ Armed Forces to identify the remains of US soldiers from World War II, and the Korean and Vietnam wars: J Presser, Submission G183, 3 October 2002. See also M Richards, ‘Beware the Gene Genies: Lavish but Question-able Promises Have Been Made to Those Who Want to Trace Their Genetic Ancestry’, The Guardian (London), 21 February 2003.
 M Richards, ‘Beware the Gene Genies: Lavish but Questionable Promises Have Been Made to Those Who Want to Trace Their Genetic Ancestry’, The Guardian (London), 21 February 2003.
 University of Minnesota Center for Bioethics, Genetics and Identity, <www.bioethics.umn.edu/genetics_and_identity/case.html>, 25 February 2003.
 HLA stands for ‘Human Lymphocyte Antigen’, a more sophisticated form of conventional blood testing developed in the 1970s. HLA blood types are the ones that now must be matched before an organ transplant can proceed.
 For a further account of this Bill, see N Yona, ‘DNA testing in Vermont’, The Abolitionist Examiner, April/May 2001. See generally K Tallbear, Genetics, Culture and Identity in Indian Country, International Institute for Indigenous Resource Management, <www.iiirm.org/publications/Genetics/ISEPaper.pdf>, 25 February 2003.
See J Johnston, ‘Just your roots are showing’ (2002) 32 The Hastings Center Report 6. See also J Johnston, ‘Resisting a Genetic Identity: The Black Seminoles and Genetics Tests of Ancestry’ (2003) Journal of Law, Medicine and Ethics (forthcoming).
 University of Minnesota Center for Bioethics, Genetics and Identity, <www.bioethics.umn.edu/genetics_
and_identity/case.html>, 25 February 2003. See also J Wickliffe-Ary, ‘Seminole Nation in Election conflict over Freedmen and their voting rights’, Native American Times, 19 February 2003.
 Revised Statutes 1985, ch I-5, ss 5–14. See Laws, Department of Justice Canada, <http://laws.justice.
gc.ca/>, 11 March 2003.
 Tu Thanh Ha, ‘Mohawk membership no longer blood simple: Quebec reserve to change divisive rule requiring strict 50-per-cent lineage’, The Globe and Mail, 5 March 2003, A4.
The History of the Ethiopian Jews, American-Israeli Cooperative Enterprise, <www.us-israel.org/jsource/Judaism/ejhist.html>, 25 February 2003. See also eLandnet, Links, <www.elandnet.org/
links/en/Africa/Falasha/>, 25 February 2003.
M Lacey, ‘600 Ugandans Struggle for Recognition by Israel as Jews’, New York Times, 19 February 2003.
 See generally, T Parfitt, The Thirteenth Gate: Travels Among the Lost Tribes of Israel (1987) Adler & Adler, Bethesda; S Cohen, The Beginnings of Jewishness: Boundaries, Varieties, Uncertainties (2001) University of California Press.
 T Parfitt, ‘Genes, Religion, and History: The Creation of a Discourse of Origin Among a Judaizing African Tribe’ (2002) 42 Jurimetrics 209. See also M Thomas and others, ‘Y Chromosomes Traveling South: The Cohen Modal Haplotype and the Origins of the Lemba — The “Black Jews of Southern Africa”’ (2000) 66 American Journal of Human Genetics 674.
 There are now about 36,000 Falashas residing in Israel, having emigrated from Ethiopia in several waves since 1977.
 C Elliott and P Brodwin, ‘Identity and Genetic Ancestry Testing’ (2002) 325 British Medical Journal 1469, 1470.
 P Brodwin, Genetics, Identity, and the Anthropology of Essentialism, University of Minnesota Center for Bioethics, <www.bioethics.umn.edu/genetics_and_identity/anthro_of_essentialism.html>, 26 February 2003
 T Parfitt, ‘Genes, Religion, and History: The Creation of a Discourse of Origin Among a Judaizing African Tribe’ (2002) 42 Jurimetrics 209.